NEW HORIZON PROPERTY II, LLC v. HOWELL TOWNSHIP PLANNING BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW HORIZON PROPERTY II, LLC,

Plaintiff-Appellant,

v.

HOWELL TOWNSHIP PLANNING BOARD,

DALE LONG and QUICK CHECK

CORPORATION,

Defendants-Respondents.

_____________________________________

November 7, 2014

Argued on April 2, 2014 Decided

Before Judges Grall, Nugent and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-240-13.

R. S. Gasiorowski argued the cause for appellant New Horizon Property II (Gasiorowski & Holobinko, LLC, attorneys; Mr. Gasiorowski, on the brief).

Richard Brigliadoro argued the cause for respondent Howell Township Planning Board, (Weiner Lesniak LLP, attorneys; Ronald D. Cucchiaro, of counsel; Mr. Cucchiaro and Mr. Brigliadoro, on the brief).

Henry L. Kent-Smith argued the cause for respondents Quick Chek Corporation and Dale Long (Fox Rothschild LLP, attorneys; Mr. Kent-Smith, of counsel and on the brief).

The opinion of the court was delivered by

NUGENT, J.A.D.

This is the second of back-to-back appeals we decide today involving Quick Chek Corporation's attempts to obtain development approvals to build and operate a gasoline station and convenience center across the highway from property owned by New Horizon Property II, LLC, where New Horizon's lessee, 19 Petroleum, Inc., operates a gasoline station and convenience center. In this appeal, New Horizon asks us to reverse a Law Division order that dismissed its prerogative writs action and thereby upheld the Howell Township Planning Board's (Board) grant of Quick Chek's development application for preliminary and final site plan approval and waiver relief.

New Horizon contends the trial court's decision was wrong for three reasons: first, the court wrongly concluded the Board reasonably relied upon a traffic report and Fire Bureau's review in granting parking and loading waivers; second, the court wrongly affirmed the Board's waivers relating to parking, loading, landscaping, and slope ratio deficiencies, because the evidence Quick Chek presented to the Board did not support the waivers, and the Board's grant of those waivers was therefore arbitrary and capricious. Third, the public notice of Quick Chek's application was deficient. We affirm.

Quick Chek is the contract purchaser of property located at the intersection of Route 33 and Colts Neck Road and designated as Block 185, Lot 49 on the Township of Howell (Township) tax map. Across Route 33, New Horizon owns a corner property where its commercial lessee, 19 Petroleum, Inc., operates a gasoline station and convenience center. The Quick Chek property, Lot 49, is located in a HD-3 zoning district. In December 2011, the Township amended its zoning ordinance to permit a gasoline station and convenience center as a conditional use in three zoning districts, including HD-3. New Horizon filed a prerogative writs action challenging the Township's adoption of the amendment. In the first of the back-to-back appeals decided today, we affirmed the Law Division's dismissal of that action.

Three months after the Township amended its ordinance, Quick Chek filed its development application for Lot 49, which it amended a month later to include Lot 49.02, a lot adjacent to Lot 49 that Quick Chek had contracted to purchase. The application complied with all conditional use requirements and did not require any variance relief. The Board approved Quick Chek's application after conducting two hearings.

New Horizon's principal objected to Quick Chek's application. Although the Board asked, explicitly, whether the attorney representing New Horizon's principal had any objection to either notice or jurisdiction, the attorney never raised an objection to either. During the hearings, Quick Chek presented the testimony of three witnesses, including an architect and an engineer who specialized in designing site plans, to support the application. New Horizon presented no witnesses.

Following the hearings, the Board unanimously approved the application and thereafter adopted a memorializing resolution on December 6, 2012. According to the Board's memorializing resolution, the Board granted the following waivers for the following reasons

The Applicant requires relief from Section 188 106(B) requiring that no parking space have access from a major interior drive. The Board finds that it would be impracticable to design an access drive to be physically separated from the parking stalls on this site since it would require significantly more land and impervious surface without any corresponding planning benefit. The Board further finds such requirement has more applicability for larger commercial uses. Despite the requested deviation from the design requirement, the Board is satisfied that internal traffic circulation on the subject property will operate safely and efficiently such that relief is appropriate.

The Applicant requires relief from Section 188-106(G) requiring that landscaping features be provided between the building and parking area. The Board finds that providing landscaping features between the building and the parking areas would be impracticable given the layout for the proposed use as well as the significant landscaping buffer already been provided by the Applicant along the southerly and westerly sides of the property. Requiring the Applicant to provide landscaping features between the building and parking area would provide no additional planning or aesthetic benefit. Despite the requested deviation from the design requirement, the Board is satisfied that the subject property will operate safely and efficiently while maintaining a pleasing aesthetic appearance such that relief is appropriate.

The Applicant requires relief from Section 188-106(F)(1)(a) requiring 30 ft. wide circulation aisles. The Board finds based on the evidence and testimony presented by the Applicant with regard to the site plan and traffic engineering that traffic circulation on the site will function safely and efficiently with the proposed 27 and 28 ft. wide driveways. Requiring the Applicant to provide more impervious surface to comply with the 30 ft. wide circulation aisle design standard would be impracticable and result in additional impervious surface being added to the site with no corresponding benefit to planning or safety. The Board is pleased with the compact nature of the design and layout of the improvements and is satisfied that internal traffic circulation on the subject property will operate safely and efficiently.

The Applicant requires relief from Section 188-219(B)(3)(c) discouraging the use of interior slopes in excess of 3:1 ratio for an earthen dam, embankment or berm. The Board finds that the proposed 2:1 ratio along the stormwater basin is appropriate and assists the Applicant in limiting its disturbance of land at the subject property to no more than is necessary. The Board also finds that the proposed slope is necessary to accommodate the swale that addresses off site overland flow, as well as pine trees and buffer on that side of the property. The Board finds that despite the requested waiver, the proposed stormwater basin will operate both safely and efficiently at the proposed 2:1 ratio and comply with all capacity requirements. Relief is therefore appropriate.

The Applicant requires relief from Section 188-225(G) requiring 8 ft. wide sidewalks. The Board finds that allowing a waiver to allow 4 ft. wide sidewalks at certain locations on the site is appropriate given that the balance of the site provides 8 ft. wide sidewalks. The Board finds that the locations where 4 ft. is proposed will have little to no pedestrian traffic and is necessary to accommodate the proposed vestibule. Requiring 8 ft. of sidewalk in these areas would therefore be impracticable and a waiver from the design requirement under these circumstances is appropriate.

A month after the Board adopted a memorializing resolution, New Horizon filed a complaint in lieu of prerogative writs against the Board, Quick Chek, and the owner of the Quick Chek property. New Horizon alleged that the Board's decision to grant the application was arbitrary, capricious and unreasonable; that Quick Chek failed to provide competent evidence to support the grant of the application and waivers; and that Quick Chek had not provided proper notice of its application, thus depriving the Board of jurisdiction. Following a non-evidentiary hearing, Judge Lawrence M. Lawson, issued a written opinion on July 31, 2013, and dismissed New Horizon's action with prejudice. New Horizon appealed from the implementing order.

New Horizon argues three points in this appeal

POINT ONE

THE TRIAL COURT ERRED IN FINDING THE BOARD'S RELIANCE ON THE TRAFFIC REPORT AND THE FIRE BUREAU REVIEW WAS REASONABLE WHERE BOTH WERE PREMISED ON 20 FEWER PARKING SPACES THAN APPROVED AND WHERE THE APPLICANT FAILED TO PROVIDE SUFFICIENT INFORMATION INCLUDING THAT REQUIRED BY SECTION 188-106(F) TO ENABLE THE BOARD TO GRANT A WAIVER AS TO PARKING AND LOADING REQUIREMENTS.

POINT TWO

THE TRIAL COURT ERRONEOUSLY AFFIRMED THE DECISION OF THE BOARD EVEN THOUGH IT WAS NOT SUPPORTED BY THE RECORD OR SATISFIED UNDER [N.J.S.A.] 40:55D-51.

1. The applicant failed to present any evidence to support the waivers relating to parking and loading.

2. The waiver of landscaping requirement and the interior stores in the 3:1 ration for an earthen dam, enhancement or berm were arbitrary and capricious.

POINT THREE

THE NOTICE AS TO THIS DEVELOPMENT PROCESS AND APPROVAL WERE DEFICIENT.

We affirm, substantially for the reasons explained by Judge Lawson in his written opinion of July 31, 2013. New Horizon's arguments warrant no additional discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.