Dunkin' Donuts of New Jersey, Inc. v. North Brunswick Tp. Planning Bd.

• Decision Date: 14 March 1984
• Citation: 193 N.J.Super. 513,475 A.2d 71
• Parties: DUNKIN' DONUTS OF NEW JERSEY, INC., Plaintiff-Respondent, v. TOWNSHIP OF NORTH BRUNSWICK PLANNING BOARD, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 513

193 N.J.Super. 513

475 A.2d 71

DUNKIN' DONUTS OF NEW JERSEY, INC., Plaintiff-Respondent, v. TOWNSHIP OF NORTH BRUNSWICK PLANNING BOARD, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Oct. 26, 1983.

Decided March 14, 1984.

Robert J. Lecky, New Brunswick, for defendant-appellant.

Daniel J. Gavin, Glen Rock, for plaintiff-respondent (Thomas R. Gervasio, Glen Rock, on the brief).

Before Judges FRITZ, FURMAN and DEIGHAN.

PER CURIAM.

Defendant planning board appeals from a judgment reversing its denial of site plan approval and of two variance applications and remanding for entry of an order approving both site plan and variances. Plaintiff's applications were for site plan approval for a retail bakery shop and variances permitting a 30-foot rather than the required 35-foot setback and a free-standing sign, four and a half by nine feet, on a ten foot high pylon. The site is in a commercial zone at the intersection of State Highway Routes 1 and 130. The proposed use is a permitted use in that zone.

Defendant planning board's denial of plaintiff's application for site plan approval was based solely upon the anticipated detrimental impact of the proposed use on traffic congestion and safety. Its resolution recited:

1) The area is zoned C-1 commercial;

2) The Route 1-Route 130 circle is a major intersection having a high accident rate;

3) Plaintiff's peak business hours coincide with the peak morning traffic;

4) Given the importance of impulse purchasing to such a business and limited access for the site, there is a reasonable probability that customers would make illegal turns or dangerous traffic movements to reach the site;

5) The circle is already overburdened and cannot be effectively or safely controlled by the police--many other uses exist which would not pose additional traffic burdens;

6) The Department of Transportation has not provided requested assistance to eliminate some hazards;

7) Approximately 80 accidents per year occur at this intersection, making it the fourth most dangerous in the State;

8) Increased maneuvers at the intersection will increase the likelihood of accidents;

9) Plaintiff has not proven the hardships necessary for the requested variances.

In reversing, Judge Harding relied upon Lionel's Appliance Center, Inc. v. Citta, 156 N.J.Super. 257, 383 A.2d 773 (Law Div.1978), which holds that a planning board under the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., effective August 1, 1976, is without authority to deny site plan approval because of off-site traffic conditions. We concur in that result; specifically, we approve Judge Havey's analysis in Lionel's Appliance Center, Inc. v. Citta.

A planning board should consider off-site...