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PPF Industrial - Route 130/Exit 8A, LLC v. The Planning Board of the Township of South Brunswick

A-2630-08T2 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; VARIANCES — A court’s denial of a variance request is arbitrary and invalid if the board improperly focused on concerns and objections about the existence of a permitted use, as opposed to objections related to the requested variances.

An owner of property in an industrial zone sought preliminary and final site plan approval from the planning board for a 744,000 square foot warehouse on its property. Because the property was situated on a corner lot with two front yards, the owner sought a variance from an ordinance that required off-street loading to take place at the side or rear of a building or structure. The owner wanted to locate a section of its loading docks on the east side of its property to lower the impact on a neighboring, adult residential community. At a hearing, the owner’s experts testified that a berm would be placed alongside the adjoining state highway to make the loading dock less visible, and another would be placed at the front, adjacent to the adjoining road, so to screen the parking lot. The owner’s plans called for a 200 foot buffer zone to the north side of the building and more than 400 feet between the proposed development and the adult residential community. Signs were to be placed on the property so that trucks would use the state highway rather than the smaller road.

At a subsequent public hearing, the general focus was on the proposal to build the warehouse itself, and not the actual variances. However, the owner testified that it would reduce the building floor area by 15,000 square feet to allow for additional landscaping and buffering. The owner also planned to install a solid, eight foot fence to shield the residential community from vehicles using the warehouse docks or parking lots. Natural brush was to be reinforced by the planting of evergreen trees.

The board unanimously denied the application. Most of the board members cited traffic, noise, and environmental issues as their reason for denying the application. None directly addressed the variance itself. The owner filed suit challenging the denial. The lower court, after trial, reversed the board and directed it to adopt a resolution granting the preliminary and final site plan approval, the variance to allow loading in the front yard, and two design waivers. The lower court said the board’s denial was improperly focused upon concerns about the existence of an industrial zone in proximity to a residential zone, as opposed to objections related to the requested variances. The lower court also said the board’s denial based on off-site traffic safety and congestion issues was unsupported by the record. The board appealed.

On appeal, the Appellate Division affirmed, finding the board was arbitrary in its decision because it appeared the decision was made based upon the permitted use and not the variance itself. The Court found that the owner qualified for a hardship variance in that it owned a corner property with two front yards. Additionally, forty percent of the property was protected wetlands that were off-limits to building. Therefore, the nature of the property itself caused the need for a variance. The Court found the lower court had correctly determined that a variance could only benefit the local community (the adult residents) by reducing any noise or light so close to their property. It also found the primary themes discussed at the hearings were not about whether a variance should have been granted, but whether a warehouse should exist on the lot at all. It indicated the industrial zone permitted such a warehouse and this should not have been a consideration. The Court also found that the record did not support a finding of any increase in traffic volume based on the location of the loading dock, but rather the board’s concern was based on the warehouse operation generally, which was a permitted use in the zone. It held that the board had no authority to consider traffic congestion or safety issues not created by the application itself.


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