Price Co., Inc. v. Zoning Bd. of Adjustment of Tp. of Union

• Decision Date: 31 March 1993
• Citation: 279 N.J.Super. 327,652 A.2d 784
• Parties: The PRICE COMPANY, INC., a Corporation of the State of California, Plaintiff, v. The ZONING BOARD OF ADJUSTMENT OF the TOWNSHIP OF UNION, Defendant.
• Court: New Jersey Superior Court

Page 327

279 N.J.Super. 327

652 A.2d 784

The PRICE COMPANY, INC., a Corporation of the State of

California, Plaintiff, v. The ZONING BOARD OF ADJUSTMENT OF the TOWNSHIP OF UNION, Defendant.

Superior Court of New Jersey, Law Division,

Union County.

Decided March 31, 1993.

[652 A.2d 785] Bernard Warren Hehl, Union, for plaintiff, The Price Co., Inc., (Hehl & Hehl, attorneys).

Marc A. Woliansky, Avenel, for defendant, The Zoning Bd. of Adjustment of the Tp. of Union, (Woliansky & Doyle, attorneys).

MENZA, J.S.C.

This is an action in lieu of prerogative writ in which the plaintiff appeals a zoning board's denial of a use variance.

The question presented is whether a zoning board of adjustment may deny a use variance on the basis that the proposed use would result in an increase in off-site traffic.

This court concludes that it may.

The plaintiff has requested a use variance for a retail store to be located on Springfield Road, Union, New Jersey. The site is located at a distance of approximately 1,100 feet from the intersection of Springfield Road and Route 22. Traffic engineers who testified at the hearings on behalf of the applicant and the Zoning Board of Adjustment agreed that the proposed use would result in a 12% increase in traffic at or near the intersection of Springfield Road and Route 22. The traffic count in that area is now 68,700 vehicles per day. They also agreed that traffic generated by the proposed use would significantly increase traffic on Springfield Road and constitute 17-21% of its capacity. The traffic count on Springfield Road is now 20,000 vehicles per day. The plaintiff's engineer also testified that the impact on traffic could be lessened by installing a traffic light and by constructing a third lane on Springfield Road near the front entrance of the site. The plaintiff's engineer also informed the Board that the plaintiff was willing to post a bond to cover the costs of construction of another lane on Route 22 if, sometime in the future, the State decided that one was necessary.

The Board members voted 4 to 3 to grant the variance. This resulted in a denial since the statute requires five affirmative votes to approve a use variance. N.J.S.A. 40:55D-70. The three The plaintiff now appeals the decision of the Zoning Board, arguing that it has proven both the affirmative criteria and the negative criteria required by the Municipal Land Use Law, N.J.S.A. 40:55D-1 to 90. ¹

negative votes were based on the concern that the proposed use would worsen the traffic congestion in the area.

With respect to the "negative criteria," the statute provides that:

No variance or other relief may be granted under the terms of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.

[ N.J.S.A. 40:55D-70 (emphasis added).]

The plaintiff argues in this appeal that the three Board members who voted to deny the variance improperly considered off-site traffic conditions, a consideration not permitted under the law. Specifically, the plaintiff argues that the negative criteria "without substantial detriment to the public good" does not encompass considerations of off-site traffic conditions. It cites the following cases in support of that position.

The case of Dunkin' Donuts of N.J. v. Tp. of North Brunswick, 193 N.J.Super. 513, 475 A.2d 71 (App.Div.1984) addressed the issue of whether a planning board may deny a site plan on the basis that the proposed use would generate additional off-site traffic. The court held that a planning board has no authority to deny site plan approval because of off-site traffic conditions, stating:

A planning board should consider off-site traffic flow and safety in reviewing proposals for vehicular ingress to and egress from a site, N.J.S.A. 40:55D-7, 41(b). Pursuant to ordinance it may condition site plan approval upon a contribution to necessary off-site street improvements, N.J.S.A. 40:55D-42. But the authority to prohibit or limit uses generating traffic into already congested streets or streets [Id. at 515, 475 A.2d 71.]

with a high rate of accidents is an exercise of the zoning power vested in the municipal governing body, N.J.S.A. 40:55D-2, 62.

It is clear that Dunkin' Donuts does not stand for the proposition urged by the plaintiff. But it does stand for the proposition that consideration of off-site traffic conditions is an "exercise of the zoning power." Thus one might logically conclude that it is in fact a consideration in the determination of a variance request.

The plaintiff also cites El Shaer v. Planning Board, 249 N.J.Super. 323, 592 A.2d 565 (App.Div.), certif. denied, 127 N.J. 546, 606 A.2d 360 (1991), in support of its position. In that case, the plaintiff argued that the planning board improperly considered off-site traffic conditions in denying its application for a subdivision. The plaintiff misinterprets the holding of this case. The Appellate Division made it clear that it would not address the issue of whether a planning board could consider off-site traffic conditions:

We need not address the issue since on-site conditions, having a potential adverse effect upon plaintiff's parcel and contiguous property and traffic flow, were sufficient to deny the application.

[Id. at 328-29, 592 A.2d 565.]

In fact it went on to indicate that a planning board might in some circumstances consider off-site traffic conditions, at least as far as egress and ingress are concerned.

[I]t was entirely proper for the Board to consider the accessibility to and from the development onto Route 206, a heavily travelled state highway.

....

The Board was properly concerned with the safety of the residents of the four lots contiguous to Route 206 backing out onto the highway and the difficulty getting in and out of the subdivision during peak traffic hours.

[Id. at 329-30, 592 A.2d 565.]

The plaintiff also relies on the case of Lionel's Appliance Center, Inc. v. Citta, 156 N.J.Super. 257, 383 A.2d 773 (Law Div.1978). In that case, the court addressed the question of whether the planning board properly considered off-site traffic conditions in denying site approval. The court concluded that it did not, stating:

[T]he court finds that defendant planning board had no power to deny defendant's application for site plan approval because of off-site traffic conditions unless it had found that the proposed means of ingress and egress created vehicular traffic problems. N.J.S.A. 40:55D-46 provides that the planning board shall, if the proposed development complies with the ordinance and the act, grant preliminary site plan approval. The record reflects the opposite.

[Id. at 269, 383 A.2d 773.]

Again this case is distinguishable from the instant case because that case involved a local planning board which the court determined under the Municipal Land Use Law had no discretion to deny site plan approval where the proposal complies with statutes and local ordinances.

Glen Rock Realty, Co. v. Bd. of Adjustment, 80 N.J.Super. 79, 192 A.2d 865 (App.Div.1963), is another case cited by the plaintiff as authority for its position that the law does not permit a zoning board to consider off-site traffic conditions. Although this case did involve a zoning board, it does not support the proposition urged by the plaintiff. The Glen Rock court did not hold that a zoning board could not consider off-site traffic in determining whether to grant a variance. Rather it held that off-site traffic conditions were improperly considered by the Glen Rock Zoning Board when it denied the use variance because the Board had concluded that the increased traffic generated by the proposed use would not create a condition of "traffic congestion or hazard."

[T]he traffic problem [is not] a blockade to the proposed commercial use of the property. The evidence of plaintiffs' experts pointed to an increase of traffic, but not beyond maximum safe capacity.

[Id. at 89, 192 A.2d 865.]

The plaintiff also cites an unreported case, Suburban Lubrications, Inc. v. Zoning Board of Adjustment, Tp. of Hampton, 13 Mun.L.Rev. 45 (1991). This case also is distinguishable from the instant case. In that case, the Hampton Township Zoning Board denied a use variance for a Jiffy Lube service center located on a major highway. The court affirmed the denial of the variance, but stated:

We do not necessarily agree with the [trial] Judge's statement that the board was "somewhat misfocused in its concern on traffic flow within the site and in its concern with movement of vehicles on and off the site." Traffic control is certainly The case of O'Donnell v. Koch, 197 N.J.Super. 134, 484 A.2d 334 (App.Div.1...