JAZZYXPRESS, LLC v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF SOUTH PLAINFIELD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JAZZYXPRESS, LLC, and

CASIERO ENTERPRISES, INC.,

Plaintiffs-Respondents,

v.

ZONING BOARD OF ADJUSTMENT OF

THE BOROUGH OF SOUTH PLAINFIELD,

Defendant-Respondent,

and

QUICK CHEK CORPORATION,

Defendant-Appellant.

August 13, 2014

Argued telephonically May 22, 2014 Decided

Before Judges Alvarez and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-278-13.

John M. Marmora argued the cause for appellant (K&L Gates LLP, attorneys; Mr. Marmora, of counsel and on the briefs; Matthew J. Schiller, on the briefs).

Robert J. Jones argued the cause for respondent South Plainfield Zoning Board of Adjustment.

Edward F. Liston, Jr., argued the cause for respondent JazzyXpress, LLC.

PER CURIAM

Defendant Quick Chek Corporation (Quick Chek) appeals from the August 26, 2013 final judgment in favor of plaintiffs JazzyXpress, LLC, and Casiero Enterprises, Inc., vacating the grant by defendant Zoning Board of Adjustment of the Borough of South Plainfield (Board) of a use variance permitting the construction of a retail gasoline station at a Quick Chek convenience store, as well as preliminary and final major site plan and minor subdivision approval. The Lukoil service station across the street from the Quick Chek site, formerly owned by Atlas Oil, is currently operated by JazzyXpress. We reverse.

The Board granted the approvals in an extensive, thorough, and detailed resolution adopted December 4, 2012. Thereafter, plaintiffs filed a complaint in lieu of prerogative writ seeking reversal of the Board's decision on two grounds: (1) that the Board's action was arbitrary, capricious, and unreasonable and against the weight of the evidence presented; and (2) that the Board's chair relied on written notes he had prepared prior to the meeting.

The trial judge was not convinced by plaintiffs' second point, however, he found that Quick Chek had not "satisfied" the "suitability issue," and that the Board had not satisfactorily addressed the zoning ordinance requiring 1200 feet between gasoline service stations, the proximity ordinance. He said: "[t]he determining issue here is the proximity clause of 1200 feet with Lukoil being 200 feet away and no proofs to satisfy the fact that . . . the 1200 feet should, in fact, be disregarded."

This appeal followed, although Casiero Enterprises, a plaintiff and participant in the trial, did not join in the appeal. Casiero owns a combination automotive service, gasoline station, and repair facility to the north of the Quick Chek site, which is located off the exit ramp from Route 287. The Casiero gas station is not immediately visible to drivers coming onto Durham Road from Route 287.

Quick Chek operates its convenience store on Block 488, Lot 8.01. The application included four adjoining contiguous parcels. The area is zoned for "interim" OPA-1, a professional office zone. Although convenience stores such as Quick Chek's are not designated as a permitted use, gas stations are conditionally permitted uses. Currently, there are dilapidated residences, nonconforming as to setbacks, on the lots. Quick Chek proposed building a canopy adjacent to the store with six gasoline pumping stages, as well as adding 228 square feet to the existing 5137 square feet of store space. Quick Chek plans to demolish the residences, and to retain the vacant lots for future development. It anticipated investing $7,000,000 into the project, and operating the gas station twenty-four hours a day, seven days a week.

The only objectors to the application were plaintiffs, who presented expert testimony during the hearing, as did Quick Chek. Quick Chek, under protest, presented its application as if for a d(1) use variance. Additionally, Quick Chek successfully sought to vary from the signage and driveway width requirements, not at issue in this appeal.

In the resolution, the Board explicitly found the Quick Chek experts to be credible. Thus it accepted as fact testimony presented by a licensed engineer, a traffic engineer, and a licensed planner. The Board specifically found the testimony by the objectors' traffic engineer and planner to be "less than credible." Additionally, the Board's planner and the Board engineer issued final reports. With two exceptions, Quick Chek agreed to comply with Board staff recommendations.

The Board treated the application as one for a use variance under N.J.S.A. 40:55D-70d(1), because Quick Chek proposed "a new mixed use." The Board found that the positive criteria was met in that "the proposed use is particularly suited for the site. The property is right at the exit of Route 287, and therefore, is the perfect place for motorists traveling on the highway to refuel. . . . The [convenience store/gas station combination] present a synergy when combined and offer the equivalent of a rest stop for travelers. Notably, this mixed use would be inappropriate in nearby residential areas and in other nearby areas." The Board viewed the grant of the use variance as advancing the purposes of the zoning plan, in light of the location of the proposed use. The Board also found that the development "would advance the general welfare by creating a convenience for the public." The Board stated that granting the variance would "enhance traffic safety," because motorists leaving Route 287 in need of refueling had to make a left-hand turn on Durham Avenue into the Lukoil station. By allowing the development, "the applicant will give travelers a much safer option than currently exists." The Board noted that the project would result in the removal of several dilapidated nonconforming residences as well, and that it was "well-designed, and nicely landscaped," presenting "a much more desirable visual element."

In reviewing the negative criteria, the Board stated that "[g]ranting the variance will not result in any substantial detriment to the public good." Although it noted that the objectors suggested that it would increase traffic congestion, the Board disagreed, finding that Quick Chek's expert credibly explained that adding a "gasoline service station would result in an insignificant number of additional vehicles." Furthermore, "[t]he Board's engineer concurred in this opinion . . . . While there may be a small increase in the number of vehicles based on granting this application, the effect will be far from 'substantial.' Indeed, it will be insignificant." Tractor trailers would be prohibited from entry into the service station. The Board concluded that Quick Chek "demonstrated by an enhanced quality of proof that granting the variances will not cause substantial detriment to the intent and purposes of the zoning ordinance or zone plan . . . adding a gasoline service station to the existing convenience store will not result in a 'gasoline alley,' as Lukoil suggests."

The Board also granted sign variances and the request for a wider-than-permitted driveway, actually recommended "by the Board's professionals to improve safety." For the same reasons it granted the use variance, the Board granted the small expansion of the non-conforming use, the convenience store itself.

With regard to the proximity ordinance, the Board stated that the deviation "will not affect safety or aesthetics." It considered the proximity requirement to not bar the application, assuming it was enacted to enhance public safety, because of updated technology employed in the construction of gas pumping facilities that protected from fires or explosions without the need for a minimum distance between stations.

After the Board rendered its decision, the Borough amended its zoning ordinance to eliminate the proximity requirement. Informed of the change, the trial judge said the effect it had on the matter was merely that "Quick Chek need do nothing more than go to the planning board." The proximity requirement was eliminated by resolution adopted June 24, 2013, and the trial in this matter conducted on August 19, 2013.

On appeal, Quick Chek contends that the trial court erred because it impermissibly substituted its own judgment for that of the Board, including credibility findings. It also contends the court erred by agreeing with the Board that variance relief was required pursuant to N.J.S.A. 40:55D-70d(1). We will not reach Quick Chek's second point, made moot by our conclusions with regard to the first.

We apply an abuse of discretion standard when reviewing a trial court's judgment with regard to a Board of Adjustment decision. CBS Outdoor Inc. v. Borough of Lebanon Planning Bd., 414 N.J. Super. 563, 577 (App. Div. 2010).

Zoning Board decisions are reviewed deferentially "because of their peculiar knowledge of local conditions[, and the board] must be allowed wide latitude in the exercise of delegated discretion." Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)). The Supreme Court has recognized "[t]hat board[] decisions enjoy a presumption of validity, and a court may not substitute its judgment for that of the board unless there has been a clear abuse of discretion." Ibid. Thus, "[i]n evaluating a challenge to the grant or denial of a variance, the burden is on the challenging party to show that the zoning board's decision was 'arbitrary, capricious, or unreasonable.'" Ibid. (quoting Kramer, supra, 45 N.J. at 296).

But, the Court has also warned that "[a]lthough [the] standard of review is a deferential one, the board may not, in the guise of a variance proceeding, usurp the legislative power reserved to the governing body of the municipality to amend or revise the [zoning] plan." Id. at 285 (internal quotations omitted). The Court explained that, "[t]his is of particular concern when a zoning board considers a use variance because, 'as the term implies, [it] permits a use of land that is otherwise prohibited by the zoning ordinance.'" Ibid. (quoting Nuckel v. Borough of Little Ferry Planning Bd., 208 N.J. 95, 101 (2011)).

As there is strong legislative policy favoring land use planning by ordinance rather than by variance, a board's grant of a d(1) variance, or a use variance, will always be the exception rather than the rule. Price, supra, 214 N.J. at 286. "[A]lthough deference must be given to any decision by a board of adjustment, a reviewing court gives less deference to a grant than to a denial of a use variance." Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75 (App. Div. 2006). A reviewing court should examine the record to determine if the "'board's decision comports with the statutory criteria and is founded on adequate evidence.'" Ibid. (quoting Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 385 (1990)). Nevertheless, a Board is entitled to decide questions of credibility and can accept or reject testimony, expert or otherwise. TSI E. Brunswick, LLC v. Zoning Bd. of Adjustment of Twp. of E. Brunswick, 215 N.J. 26, 46 (2013) (citing Kramer, supra, 45 N.J. at 288).

A local board is limited in granting use variances. It can do so only where: "(1) special reasons exist for the variance (the positive criteria); and (2) the variance can be granted without substantial detriment to the public good and will not substantially impair the intent and purposes of the zone plan and zoning ordinance (the negative criteria)." Elco v. R.C. Maxwell Co., 292 N.J. Super. 118, 127 (App. Div. 1996).

In this case, the Board concluded "special reasons" existed because the proposed use would serve the general welfare as "the proposed site is particularly suitable for the proposed use." Smart SMR v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998) (quoting Medici v. BPR Co., 107 N.J. 1, 4 (1987); see Nuckel, supra, 208 N.J. at 102; Saddle Brook Realty, supra, 388 N.J. Super. at 76.

In Saadala v. East Brunswick Zoning Board of Adjustment, 412 N.J. Super. 541, 552 (App. Div. 2010), we found that the applicant in factually similar circumstances had failed to prove that the proposed use was particularly well-suited. In this case, to the contrary, Quick Chek's planner, found by the Board to be credible, testified that the site was particularly well-suited for the proposed use because of its proximity to the exit ramp for Route 287.

The Board in this case found the proposed use provided a full-service rest stop for the convenience of travelers. Modifications to the site would enhance drainage in the area. Motorists headed north off the ramp would no longer be required to make a left-hand turn into the Lukoil station across the street from the proposed site, thereby improving the flow of traffic. The development of the site would be visually pleasing, in contrast to the existing structures, and the location was a "gateway" into the South Plainfield area. The Board therefore clearly articulated the positive criteria.

The Board also found the negative criteria were satisfied. The only substantial concern was the proximity ordinance. But the Board found the goal of the ordinance, safety, was satisfied by the current safety features inherent in contemporary gasoline station equipment. The Board concluded there would not be substantial detriment to the public good as a result of any "noise, increased runoff, or pollution." The minimal effect on traffic testified to by Quick Chek's expert was corroborated by the Board's own engineer, who as the Board noted, relied on the New Jersey Department of Transportation standards as support for his opinion. Furthermore, the Board considered the development would not result in an "undesirable" visual effect. Because the facility would only provide gasoline, not repairs or other automotive services, the use was limited, and "not aesthetically troublesome." They concluded that the proposed development in comparison with what existed would be "an aesthetic enhancement."

The trial judge, however, did not specifically mention the Board's iteration of the testimony. Nor did he discuss the Board's findings as to the positive or negative criteria. Although he agreed that the proposed gas station would be a convenience to motorists, he questioned whether there was a need for another facility in light of the presence of Lukoil. He also expressed skepticism about Quick Chek's experts' testimony, found credible by the Board, that removal of the structures on the premises was an enhancement given that the net effect would be to replace a nonconforming use with a nonconforming use. Thus the judge made his own credibility findings regarding the applicant's experts. He substituted his judgment for that of the Board, without asking if the Board had adequate evidence given its credibility findings, and if its decision "comports with" the statutory criteria. Saddle Brook, supra, 388 N.J. Super. at 75.

The Board was entitled to reject the testimony of the objectors' witnesses, as it did, and rely upon the testimony of Quick Chek's experts instead. The trial judge impermissibly made what amounted to credibility findings anew on a cold record. He concluded that the Board "was just very anxious to get this application in," while engaging in very limited discussion of the Board's thorough assessment of the testimony. The judge's conclusion was not an adequate basis to wholesale reject the Board's analysis.

The trial judge substituted his judgment for the Board's without regard to the Board's discussion of the testimony of Quick Chek's expert regarding the proximity requirement. He did not address the possibility that it was no longer necessary, as posited by Quick Chek's experts, because advances in technology made the use far safer. Quick Chek's experts even testified that if the intent of the proximity requirement was to avoid traffic problems, in this case they would be alleviated, rather than worsened, by virtue of northbound traffic from Route 287 no longer needing to make a left-hand turn into Lukoil. In actuality, no testimony was proffered as to the historical reason for the enactment of the proximity ordinance which had been abolished by the time the trial was conducted.

The trial judge did not find that the Board had clearly abused its discretion before reassessing the proofs anew. See Price, supra, 214 N.J. at 284. He did not engage in deferential review of the decision. See Price, supra, 214 N.J. at 284.

Reversed.