Preview:

a3165-06.opn.html
Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.)
The status of this decision is unpublished
Original Wordprocessor Version
This case can also be found at *CITE_PENDING*.
(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3165-06T13165-06T1
KESAR GILL and JEAN DVORAK,
Plaintiffs-Appellants,
v.
PLANNING BOARD OF THE TOWNSHIP
OF SOUTH BRUNSWICK and WAWA,
INC., a Pennsylvania corporation,
Defendants-Respondents.
Argued January 16, 2008 - Decided
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,
Docket No. L-1953-06.
Joseph A. Bilal argued the cause for appellants (Gruber & Bilal, attorneys; Andre Wm.
Gruber, of counsel; Mr. Bilal and Kenneth P. Fee, on the brief).
Benjamin S. Bucca, Jr. argued the cause for respondent Planning Board of the Township
of South Brunswick (Bucca & Campisano, attorneys; John A. Jorgensen, on the brief).
Jennifer A. Burgess argued the cause for respondent WaWa, Inc. (Kelso and Bradshaw,
attorneys; Ms. Burgess, on the brief).
PER CURIAM
file:///C|/Users/Peter/Desktop/Opinions/a3165-06.opn.html[4/20/2013 3:51:48 PM]




a3165-06.opn.html
Plaintiffs Kesar Gill (Gill) and Jean Dvorak (Dvorak) appeal from the January 3, 2007 order of Judge Edward J.
Ryan affirming the decision of defendant Planning Board of the Township of South Brunswick (Planning Board)
granting a bulk variance to defendant WaWa, Inc. (WaWa) for the construction of parking stalls in the front and side
yard setbacks of its proposed gas station and convenience store. Judge Ryan concluded that plaintiffs were barred
from challenging the Planning Board's jurisdiction to grant the bulk variance and that the proofs supported the
grant of the variance. We affirm.
WaWa owns an 8.644-acre, rectangular-shaped parcel located at the southwest corner of the intersection of
Cranbury-South River Road and Deans Rhode Hall Road. The parcel is located in the LI-4/C Light
Industrial/Commercial Zone District (LI-4/C zone). The zone permits convenience stores to be operated on the
parcel and also allows gasoline service stations as a conditional use. Wawa applied for approval for both a
convenience store and a gasoline service station. Pursuant to the South Brunswick Zoning Ordinance (Ordinance),
Section 62-1672(4), gasoline stations are permitted in the LI-4/C zone if they meet the following requirements:
a. There shall be a minimum of 5,000 feet between lots used for service stations
or repair garages, which distance shall be measured horizontally from the
nearest property lines. A lot used for such uses shall not be less than 500 feet
from any lot used for a school, playground, place of worship, hospital, public
building, place of public entertainment or fire station.
b. No unregistered motor vehicles shall be stored on the site. No junkyard shall
be permitted, but nothing in this chapter shall prohibit the exterior storage of
up to six motor vehicles awaiting repair.
[(emphasis added).]
Wawa filed the application with the Planning Board on February 17, 2005. The proposed lot conformed to the lot
size and width requirements of the Ordinance. Additionally, Wawa sought preliminary and final site plan approval
with bulk variance relief for parking in the front and side yard and design waivers.
Craig T. Marshall (Marshall), South Brunswick Director of Planning, initially sent Wawa a letter on February 17,
2005, advising that a "conditional use variance is required since the [proposed] gas station is within 5,000 feet of
another approved gas station[,]" which Marshall viewed as a deviation from the requirement of Section 62-1672(4)a
of the Ordinance. Wawa's attorney, in a letter dated March 4, 2005, challenged Marshall's decision and noted that
the "approved [gas station] . . . identified as triggering the restriction does not currently exist, is not 'used for service
stations' and, therefore, does not serve to limit my client's right to develop its proposed station and related
facilities[.]" He also pointed out that "all cases dealing with proximity restrictions have without exception dealt with
'existing' facilities." Marshall then sought an interpretation of the Ordinance from Benjamin S. Bucca (Bucca), the
township's zoning board attorney. In a letter dated March 28, 2005 to Marshall, Bucca discussed Section 62-1672(4)
file:///C|/Users/Peter/Desktop/Opinions/a3165-06.opn.html[4/20/2013 3:51:48 PM]




a3165-06.opn.html
of the Ordinance and opined that Wawa's application should be treated as a permitted use on the basis that, since
the other gas station was not then being used as a gas station, WaWa's application "should be considered a
permitted use." Marshall accepted Bucca's analysis and forwarded Wawa's application to the Planning Board as a
fully complying conditionally-permitted use application.
Public hearings on the Wawa application were conducted on November 2, 2005 and December 12, 2005. The
Planning Board heard testimony and considered evidence regarding the site plan, bulk variance for the site, and the
design waiver. Wawa called as witnesses its regional real estate manager, a licensed professional planner and
professional engineer, and a licensed professional engineer specializing in traffic jams.
During the December 12, 2005 hearing, the Planning Board invited public comment on the application.
Darshin S. Grewal identified himself as a commuter who passed by the proposed site every day. He inquired:
I'm not very sure, but I've not researched this. It's up to the Board to research it. I
understand that the distance between two gas stations cannot be less than 5,000 feet. .
. . I'm pretty sure, it could be plus and minus very little, the distance is not more than
5/6th's mile, which is about 3[,]200 feet. I guess there is a conflict there, but it's up to
the Board to clarify that. I've not seen that ordinance. I think there's an ordinance like
that.
In response, the South Brunswick Planning Assistant, Brian Sullivan, explained:
I have a letter from Mr. Bucca[], the Zoning Board attorney because there was a
question whether this application went to the Zoning Board or the Planning Board.
And Mr. Bucca said, "From my reading of the language it appears as though the
ordinance has a clear intent that a gas station is a permitted use, so long [as] it is not
within 5,000 feet of the property that is presently being used for a gasoline station."
And the compelling language to him was presently being used for.
And right now, although there is an application or there is a [gas station] being built on
the corner, it's not built yet. So, therefore, he feels that doesn't [matter]. That's his
interpretation.
Later, during the same hearing, plaintiff Dvorak spoke. She did not discuss whether the application deviated
from the Ordinance, but she did voice her concerns that the proposed gasoline station would create traffic
problems and result in more vehicular accidents at the intersection where it is located. Shortly after her remarks, the
Planning Board's attorney, John Jorgensen (Jorgensen), revisited the question of whether Wawa's application, as
proposed, was a permitted use properly before the Planning Board or whether, in the first instance, it should have
been presented to the Zoning Board:
I've had an opportunity, yeah, to review Mr. Bucca's March 28th, 2005 memorandum.
Board member [] or [] not[,] Mr. Bucca is the attorney for the Zoning Board. He's also
one of the attorneys that does a lot of land use law, and in fact, I believe also teaches at
Rutgers in some of the land use courses.
file:///C|/Users/Peter/Desktop/Opinions/a3165-06.opn.html[4/20/2013 3:51:48 PM]




a3165-06.opn.html
He has had an opportunity to review and research the issue on whether or not, on the
particular issue asked of him of whether this application should be in front of the
Planning Board or the Zoning Board. And he indicated that the LI-4C zone permits
gasoline stations as long as there's a minimum of 5,000 feet between lots for those
stations.
There is language that he has come across that deals specifically with lots used for
service stations. And his review of the case law indicates that the case law only deals
with a use that is currently in existence, not approved. The approval without the
existence, there is no case law on that. The approval with it being in existence, there is
case law that would prohibit it.
Also, he indicates that the LI-4C zone, the intent of the ordinance was to permit one
gasoline station within that zone. The other station that we're talking about here is
outside, is in a different zone. And you have as Mr. Bucca's opinion that if the Township
were to bar development of the gas station in the LI-4C zone due to gasoline stations
being located in other zones, but within 5,000 feet, that it would frustrate one of the
purposes of the ordinance.
So, obviously, Mr. Bucca has done more research in the matter on the issue and after
reviewing his letter memorandum, I would concur with the opinion that the fact that
this is a gasoline station within 5,000 feet of the other gasoline station does not
specific[ally] apply in this zone. And therefore, it's an application that can move forward
and be considered by this Board.
Following the completion of public comment, Board Chairman Southwick stated:
The area is zoned for an application such as Wawa presented tonight and
previously. The interpretation of Mr. Bucca, I remember when Mr. Bucca was what I
would call a freshman land use attorney when he sat to my left on the Zoning Board.
He's come a long way. He's an extremely astute attorney, not only a quick learner, but
dedicated. And I had issues about that. I was concerned about the legal issue.
Having Mr. Bucca's letter and also having our own attorney's more than capable
interpretation of it, I have to agree that legally I would find a very hard time denying
this application. I'm not really a big fan of this application. I have to admit that too. I
really don't love it. Really don't love what's happening out there in some ways. I don't
love some of the things other boards in the town have done in the area.
But that's not what I'm here to do, to love it or not, to like it or not. My decision has to
be based on the information, on the case presented. And though people might think
I'm frivolous, I do take this seriously, not only running the meetings, but how I vote. And
I'm going to vote yes. So, by a vote of [five] to two you have received your approval.
The Board's approval was subsequently memorialized in a resolution adopted by the Board on January 18, 2006.
On March 2, 2006, plaintiffs filed a Complaint in Lieu of Prerogative Writs challenging the Planning Board's
jurisdiction to entertain WaWa's application for preliminary and final site plan approval with bulk variance relief for
parking and the design waiver for off-street loading screening. Plaintiffs also challenged the Planning Board's
resolution approving the application. Defendants filed answers to the complaint, and following the exchange of
discovery in accordance with the trial court's Case Management Order dated July 17, 2006, a bench trial
commenced before Judge Ryan on December 15, 2006. On January 3, 2007, Judge Ryan issued a written decision
finding that the Planning Board had proper jurisdiction over the application and affirmed its decision granting
file:///C|/Users/Peter/Desktop/Opinions/a3165-06.opn.html[4/20/2013 3:51:48 PM]




a3165-06.opn.html
approval of WaWa's application.
Plaintiffs filed their Notice of Appeal on February 16, 2007. They raise the following points for our
consideration:
POINT I
THE PLAINTIFFS ARE NOT BARRED PURSUANT TO N.J.S.A. 40:55D-2. Hence, they
contend the twenty-day period in which to appeal, administratively, a decision of a
municipal officer to South Brunswick Township's Board of Adjustment was never
triggered.
The Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to -163, establishes administrative procedures for
appealing decisions made by an administrative officer in enforcing a zoning ordinance or for requesting an
interpretation of a zoning ordinance. To that end, 68 N.J. 576, 588 (1975). Rather, it is "a rule of practice designed to
allow administrative bodies to perform their statutory functions in an orderly manner without preliminary
interference from the courts" and, in the interest of justice may be waived. Ibid.
Here, the record is not clear as to when Marshall made the decision to send WaWa's application to the Planning
Board as a permitted use rather than forwarding it to the Zoning Board for a use variance review. It is clear,
however, that at least as to plaintiff Dvorak, there was actual knowledge that WaWa's application was before the
Planning Board rather than the Zoning Board because she attended both public hearings and spoke at the
December 12 hearing. Moreover, while there is no evidence that plaintiff Gill attended the two hearings, he had
constructive knowledge that WaWa's application was before the Planning Board rather than the Zoning Board.
Under 45 N.J. 268, 296 (1965) (quoting Ward v. Scott, 16 N.J. 16, 23 (1954)). In that regard, we have previously held
that trial courts should "accept as presumptively correct the action of the planning board" and "the determination
of the planning board should be sustained, unless it is unreasonable, arbitrary or capricious." Florham Park Inv.
Assocs. v. Planning Board of Madison, 92 N.J. Super. 598, 604 (Law Div. 1966) (citations omitted). Therefore, "the
proper scope of judicial review [] is not to suggest a decision that may be better than the one made by the . . .
planning board, but to determine whether the planning board could reasonably have reached its decision." Davis
Enters. v. Karpf, 105 N.J. 476, 485 (1987) (citation omitted). In other words, the question for a trial court, as well as an
appellate court, is whether the actions of the planning board were based rationally on the testimony before it.
Amato v. Randolph Twp. Planning Bd., 188 N.J. Super. 439, 453 (App. Div. 1982).
Here, the Planning Board conducted two hearings before approving Wawa's application. Judge Ryan, in his
written opinion, reviewed the evidence the Planning Board considered and found:
file:///C|/Users/Peter/Desktop/Opinions/a3165-06.opn.html[4/20/2013 3:51:48 PM]




a3165-06.opn.html
In this case, the Board heard credible testimony from experts, and reviewed their
reports in support of the application. Both the testimony and the exhibits/reports
support the Board's decision to approve the application, including the granting of the
bulk variances pursuant to N.J.S.A. 40:55D-70C. The resolution of the Board indicates
that the members were familiar with the conditions and uses of the property
surrounding the site and the local needs of the Township of South Brunswick. The
Board made specific findings at the time of this hearing which it set forth in its
resolution. It considered testimony regarding the parking and traffic issues in
justification for granting the variance relief for parking in the front yard and side yard
setbacks. Specifically, the Board considered the testimony of Richard Kendarian, the
Licensed Professional Engineer and Planner, Kenneth Muller, the Senior Regional Real
Estate Manager for the Defendant Wawa, and Kenneth Fears, a Licensed Professional
Engineer specializing in traffic.
Specifically, Mr. Kendarian testified that "In accordance with the Ordinance, no
more than ten percent of the parking shall be permitted in the front yard behind the
front yard setback. The proposed parking layout does not meet this requirement." He
went on to explain that, "It is the nature of this particular use, which is permitted in the
zone, that requires the layout that we've proposed as appropriate. And that is what is
requiring the variance." These statements were offered to support the requirements of
wvWare/wvWare version 1.0.3
-->
This archive is a service of Rutgers School of Law - Camden.
This archive is a service of Rutgers School of Law - Camden.
file:///C|/Users/Peter/Desktop/Opinions/a3165-06.opn.html[4/20/2013 3:51:48 PM]

Download a3165-06.opn.pdf

New Jersey Law