Opinion
DOCKET NO. A-3938-12T1
06-03-2015
WHITE CASTLE SYSTEM, INC., Plaintiff-Respondent, v. PLANNING BOARD OF THE TOWNSHIP OF MIDDLETOWN, Defendant-Appellant.
James H. Gorman argued the cause for appellant. Reginald Jenkins, Jr. argued the cause for respondent (Price, Meese, Shulman & D'Arminio, P.C., attorneys; Louis L. D'Arminio, of counsel; Mr. Jenkins, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Simonelli and Haas. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2139-12. James H. Gorman argued the cause for appellant. Reginald Jenkins, Jr. argued the cause for respondent (Price, Meese, Shulman & D'Arminio, P.C., attorneys; Louis L. D'Arminio, of counsel; Mr. Jenkins, on the brief). The opinion of the court was delivered by FUENTES, P.J.A.D.
Defendant Planning Board of the Township of Middletown (the Board) appeals from the March 26, 2013 judgment of the Law Division reversing the Board's denial of plaintiff White Castle System, Inc.'s application for site plan approval for a proposed 1952 square foot fast-food restaurant located in the Township's B-3 Business Zone. Although plaintiff's site plan conformed to the conditional use standards of the B-3 Business Zone, the Board rejected plaintiff's application because the proposed restaurant did not comply with a "fifty-foot buffer" requirement set forth in the Township's site design ordinance. This buffer is intended to separate the proposed restaurant's parking lot and adjacent non-conforming residential uses.
Plaintiff filed a timely action in lieu of prerogative writs in the Law Division pursuant to Rule 4:69-6(b)(3) challenging the Board's decision to reject its site plan application. After a trial based on the record developed before the Board, the Law Division Judge found plaintiff established sufficient grounds to entitle it to an exception of the site design standard under N.J.S.A. 40:55D-51(b). Under these circumstances, the trial judge concluded the Board's decision to deny plaintiff's application was arbitrary, capricious, and unreasonable.
On appeal to this court, the Board argues the trial court misconstrued the provisions in N.J.S.A. 40:55D-51(b) to award plaintiff relief it was not entitled to receive under the facts of this case. The Board also argues the Judge erred by permitting an unpublished trial court opinion to influence his decision. According to the Board, the Judge ultimately applied an incorrect standard of review by substituting his judgment for the Board's judgment thereby usurping the Board's statutory role under the Municipal Land Use Law (MLUL).
In its defense of the trial judge's decision, plaintiff argues the proposed restaurant satisfied all of the conditional use requirements and it is entitled to site plan approval as a matter of law. Consequently, the trial judge correctly found the Board erroneously denied its request for a waiver of the buffer zone requirement.
After reviewing the record developed before the Law Division and mindful of the prevailing legal standards, we reverse.
I
Plaintiff is the contract lessee of land situated on block 533, lots 4, 5, 6, 7 and 15, as shown in the tax map for the Township of Middletown, in Monmouth County. This site is located within the B-3 business zone of the Township, and consists of 1.67 acres adjacent to Route 36. The site abuts four residential and two commercial properties. Lots 4, 5, 6 and 15 are owned by Middletown Partners, L.L.C., and lot 7 is owned by Dover Development, L.L.C. (collectively "Landlord").
On May 6, 2011, plaintiff filed an application for preliminary and final site plan approval before the Board to build a fast food restaurant known as a "White Castle." As proposed, the restaurant consisted of a one-story structure with 1952 square feet of interior space, with a "drive thru" window. A single driveway would be used for ingress and egress from Route 36. The restaurant would employ "30 to 35 team members" and would remain open for business twenty-four hours per day, seven days per week. Plaintiff expected six to seven team members would work during a single shift.
Fast food restaurants are a conditional use in the B-3 zone. It is undisputed that plaintiff's proposed development met the conditional use standards and is a permitted use within the B-3 zone. The B-3 zone requires a minimum lot size of three acres. However, during the application process the zoning officer determined plaintiff was not required to obtain a variance for lot area because the conditional use standard requires a minimum lot area of 1.5 acres for fast food establishments. Plaintiff's application thus satisfied all conditions set forth in section 16-809 of the Township's ordinance pertaining to fast food restaurants. Specifically, section 16-8.9 of the zoning ordinance provides:
Fast food service establishments may be permitted as a conditional use in those
zones specified provided that the use and/or structures shall adhere to the following:
1. Freestanding fast food service establishments;
a. There shall be a minimum distance of 1500 feet between any two such establishments on the same side of the street, said distance to be measured between the nearest property lines of the properties upon which the fast food service establishment uses are or are to be located.
b. The minimum lot size shall be 1.5 acres.
c. The minimum building front setback shall be 75 feet. Located within the front setback area shall be a 30 foot wide landscaped buffer strip adjacent to the front property line, which shall occupy at least 30 percent of the total front yard area.
d. There shall be at least one major means of ingress and egress, divided by a median strip, with appropriate deceleration and exit lanes along the road on which the building fronts. If said establishment is located within a developed larger lot, said major means of ingress and egress shall be of sufficient design capacity to serve the entire lot.
e. Impervious surfaces shall not occupy an area greater than 85 percent of the total lot.
f. The minimum off-street parking requirements shall be one space per two seats plus one space per two full-time employees on the maximum work shift.
g. Direct access from the roadway right-of-way line to the nearest turn or parking
space on the lot on which said establishment is located shall be an unobstructed distance of not less than 60 feet.Plaintiff was not required to obtain any other variances.
. . . .
3. Regulations and Standards Applicable to all Fast Food Service Establishments:
a. All fast food service establishments shall be located on major collector or arterial streets.
b. Signs shall be limited to one freestanding sign and one sign affixed to the building bearing the name of the establishment and a logo, and two lines of copy with 12 inch letters maximum and five words maximum. The total area of the freestanding sign shall not exceed 80 square feet per side.
c. All service, storage and trash areas shall be completely screened from public view. Such areas shall be regularly maintained in neat and orderly fashion.
d. Drive-thru lanes shall provide sufficient stacking for seven vehicles plus one vehicle at the pick-up window. Stacking lanes shall not block or obstruct access into or out of parking spaces or pedestrian access ways into or out of the restaurant.
(Emphasis added).
The only issue that arose during the application process hindering approval was the proposed plan's violation of Section 16.622.D.9 of the Township's site design ordinance, which requires "[p]arking lots or unloading areas of commercial, business, or industrial uses abutting residential uses shall provide a landscaped buffer screen at least fifty (50') feet wide on the perimeter of all parking or loading areas."
Plaintiff's site plan fell short of the fifty-foot buffer requirement on the southerly side of the property, where the design only provided twenty-four feet. On the easterly side of the property, the design only provided 10.4 feet, and on the northerly side of the property, the design only provided 8.5 feet. Plaintiff's application thus required a site design exception under N.J.S.A. 40:55D-51(b). Plaintiff applied for five separate waivers from the Township's site design requirements, including a waiver from the fifty-foot buffer site design requirement.
The Board conducted public hearings on November 2, 2011, January 4, 2012, February 1, 2012, and March 7, 2012. Plaintiff presented the testimony of Chris Shaffery, White Castle's Regional Director, Thomas Bray, White Castle's Regional Manager, engineer and planner William Stevens, P.E., P.P., engineer Elizabeth Dolan, P.E., Thomas Stavola, the landlord's representative, and planner Ian Borden, P.P., A.I.C.P.
Stevens testified that the restaurant was designed to provide twenty-three parking spaces and have a seating capacity for thirty-six people. He described the delivery operations and the size of the delivery trucks and the route they would be expected to take. Stevens also explained the site's grading and draining system, which included a storm water detention basin. In response to questions by a Board Member about perimeter fencing, Stevens indicated they would consider fencing that would also maintain the aesthetics of the property. He testified that plaintiff planned to install landscaping along all boundaries of the site to "provide for some buffering and some landscaping from the adjacent uses."
According to Stevens, the site met the zoning requirements for setbacks, floor area ratio, and lot coverage, and consequently did not require any variances from the zoning ordinance. At the hearing conducted on January 4, 2012, Stevens elaborated on plaintiff's plans to construct a barrier fence to address the Board's earlier concerns:
[W]e're also proposing to construct a 6-foot white vinyl fence to enhance that buffer along the property line between the residences up into the existing fence that currently exists for Lot 20.
. . . .
And in addition to that, as you can see, we have a mixture of both evergreen and deciduous trees meant to provide a good visual look at the site as well as to provide adequate buffering for the adjoining residences.
Stevens addressed the site design waivers issues that are at the core of this appeal at the January 4, 2012 hearing. With respect to the fifty-foot buffer requirement, Stevens testified:
One of the design waivers the applicant is also seeking is that businesses abutting a residential use shall provide a landscape buffer of 50 feet along the perimeter of all parking areas where 10 feet is being proposed. There are adjoining residences on Lots 21, 20, and 19, where we cannot provide that 50-foot buffer. An imposition of a 50-foot buffer on this site would generally render it into inutility in that the applicant would not be able to develop a commercial site on this property if that 50-foot buffer were to be required.
It's also important to note that all these adjoining lots are also in the commercial zone. So that at some point in the day as this neighborhood continues to redevelop and grow, it's anticipated by your ordinance that these properties will become commercial so that that buffer would become not necessary. But for the time being, what the applicant has done is what I had said earlier in my testimony is to provide both an evergreen and deciduous buffer, as well as providing a 6-foot high white vinyl fence in order to buffer the two uses, the residential use that currently exists and the proposed White Castle restaurant.
When one of the Board Members asked Stevens to explain why plaintiff could not satisfy the buffer requirement, Stevens gave the following response:
I think it's very important that the Board notices that the applicant is looking to build a one-story structure that's 24 feet wide. It only ends up being 1952 square
feet. To think about a commercial application that would have smaller building on this and be a viable commercial application, I don't believe is a reasonable commercial application. And by enforcing that 50-foot buffer that would be required to these residential uses on this property, as I said in my earlier testimony, would basically be zoning this property into inutility, meaning that there is, in my opinion, without that waiver, no viable commercial application that could be constructed on this property.
When asked by the Board's Chairperson whether his opinion concerning the enforceability of the buffer requirements was predicated on the shape of the proposed building, Stevens opined that the layout of the restaurant could not be altered because "you wouldn't be able to provide the vehicular access that would be necessary for the site." When asked whether plaintiff could relocate the parking spaces to satisfy the buffer requirement, Stevens conceded it was possible to relocate up to ten spaces, although he was "not sure it's the best planning alternative for this site, but it is possible." White Castle's Regional Manager Thomas Bray also addressed the issue of relocating the parking area to the southeasterly section of the site. Bray rejected this alternative as "inconvenient" because it would make operations difficult and force customers to walk "125, 150 feet" to the restaurant.
The record also reflects plaintiff's willingness to amend its proposal in response to other concerns raised by the Board. For example, plaintiff revised its plans and relocated the crosswalk between the handicapped parking spaces and the restaurant, thereby enlarging the detention basin and increasing the turning radius on Route 36 to allow for additional truck traffic. This also permitted the relocation of the waste and trash enclosures.
Several residents of adjacent properties objected to plaintiff's unwillingness to comply with the Township's buffer requirements. Plaintiff's planner Ian Borden provided the following additional explanation in support of plaintiff's position on this issue:
So to create a precise 50-foot buffer from that property corner, that would be the movement of 14 parking spaces. That certainly is impractical since we have 21. So, you know, to strictly conform with the 50-foot buffer would need a relocation of 14 parking spaces, which is two-thirds of our total.This triggered the following response from one of the residents whose property was located near plaintiff's proposed restaurant:
Well, whatever they're doing. I just think it should be 50-foot [sic] all around. When I bought my house, I was told that if they put anything behind my house, it would have to be a 50-foot buffer from my house, or else I wouldn't have bought the house. Now
you're telling me that they're put [sic] 8 foot [sic] between me and a White Castle?
The Board denied plaintiff's site plan application on March 7, 2012. In its memorializing resolution dated April 4, 2012, the Board made a number of specific findings in support of its decision. Of particular relevance here, in paragraph eleven of the resolution the Board found:
The applicant's engineer here testified that the design exception could be eliminated if the parking were moved to the easterly portion of the property. Although that requires a short walk by some patrons, such a location would eliminate the need for the design exception. Basically, the Planning Board must decide if the existing neighbors should be impacted, of if some patrons should be inconvenienced. The design standard was placed in the ordinance to protect residential uses from the visual and noise impacts of parking lots for commercial uses. It would be unreasonable for the Planning Board to impose a burden on the existing residential properties, rather than shifting the inconvenience to the applicant to construct some of the parking on another location on its property.
The Board also rejected plaintiff's planner's opinion concerning the standard for relief codified in N.J.S.A. 40:55D-51(b). The Board found plaintiff failed to prove that "the literal enforcement of one or more provisions of the ordinance is impracticable or will exact undue hardship because of peculiar conditions pertaining to the land in question." N.J.S.A. 40:55D-51(b). The Board specifically found the need for the relief at issue was based on plaintiff's intransigence with respect to the design of the building housing the restaurant, not on any "peculiar conditions pertaining to the land." In the words used by the Board, "[t]he owners of the property created this odd assemblage." Under these circumstances, the Board found that moving the parking lot would not be "impracticable" within the meaning of N.J.S.A. 40:55D-51(b).
II
In its action in lieu of prerogative writs, plaintiff argued the Board's decision was arbitrary and capricious and not supported by the record developed and the evidence presented over four days of hearings. After considering the arguments of counsel and the record developed before the Board, the trial judge issued a memorandum of opinion reversing the Board's decision. According to the trial court, the dispositive issue was "whether the denial of the requested partial waiver of the residential buffer requirement was error and impermissibly favored non-conforming uses." Because the buffer requirement is codified in the Township's site design ordinance, as opposed to the municipal zoning ordinance, the trial judge held that only a "waiver" from the condition is required. The judge cited our opinion in Wawa Food Market v. Planning Board of Ship Bottom, 227 N.J. Super. 29 (App. Div.), certif. denied, 114 N.J. 299 (1988), as legal support for this conclusion.
According to the trial judge,
Impracticability in relation to a design exception must be governed by a lower standard than the standard required for a variance. Therefore, in considering whether the Applicant met the standard of "impracticability," this Court must consider the totality of the evidence presented to the Board. Impracticability does not mean the highest standard of "impossible" nor does it mean the lower standard of "inconvenient," rather, "impracticable" is judged by reasonableness in relation to the entire site plan.
The judge credited Stevens' testimony explaining that the "need for the buffer requirement was triggered by the existence of the adjacent nonconforming residential uses in the business zone." He also noted plaintiff's willingness to increase the rear buffer from ten to twenty-four feet in response to the Board's concerns, and to landscape and provide fencing to screen the site from adjoining properties. Of particular note, the judge accepted plaintiff's position that complying with the fifty-foot buffer would render the site into "inutility" from a commercial perspective. He also accepted as significant the planner's testimony that the structure could not be moved forward to increase the buffer "without requiring variance relief." The judge further found that reconfiguring the building to avoid the need for a buffer waiver was not practical and acknowledged plaintiff's attempts to mitigate the deficiency by obtaining the surrounding lots.
Based on these findings, the judge weighed the Township's interest in enforcing the fifty-foot buffer against plaintiff's ability to comply, and concluded there was "not sufficient space around the restaurant building to provide 50 feet of buffer and allow for safe and efficient traffic circulation." The judge specifically rejected the Board's findings that plaintiff created its own hardship, noting plaintiff's landlord had acquired several other lots to increase the overall size of the site.
III
It is well-settled that in reviewing a municipal zoning board's decision, the judiciary must be mindful that the Legislature vested these boards with the discretion to make decisions that reflect the character and level of development within their municipality. Booth v. Bd. of Adjustment of Rockaway, 50 N.J. 302, 306 (1967). A planning board's discretionary decisions carry a rebuttable presumption of validity. Harvard Enters., Inc. v. Bd. of Adjustment of Madison, 56 N.J. 362, 368 (1970).
A trial court may not substitute its judgment for that of the municipal board unless the record establishes that the board's action was arbitrary, unreasonable, or capricious. Ibid. Regarding discretionary decisions, an appellate court is bound by the same standards as the trial court. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). However, a court is not bound to defer to a zoning board's legal interpretation of an ordinance. Cherney v. Matawan Borough Zoning Bd. of Adjustment, 221 N.J. Super. 141, 144-45 (App. Div. 1987).
N.J.S.A. 40:55D-51(b) provides:
The planning board when acting upon applications for preliminary site plan approval shall have the power to grant such exceptions from the requirements for site plan approval as may be reasonable and within the general purpose and intent of the provisions for the site plan review and approval of an ordinance adopted pursuant to this article, if the literal enforcement of one or more provisions of the ordinance is impracticable or will exact undue hardship because of peculiar conditions pertaining to the land in question.
(Emphasis added).
Here, the trial court found plaintiff established it was "impracticable" to comply with the ordinance's fifty-foot buffer requirement within the meaning of N.J.S.A. 40:55D-51(b) because "it is clear that this was the best the Applicant could do to conform to every requirement except for the buffer requirement." The court did not elaborate or otherwise explain the basis for reaching this conclusion. The Board argues we should construe "impracticability" in accordance with its plain meaning. We agree with Board's argument. "It is a basic rule of statutory construction to ascribe to plain language its ordinary meaning." Bridgewater-Raritan Educ. Ass'n v. Bd. of Educ. of the Bridgewater-Raritan Sch. Dist., ___ N.J. ___, ___ (2015) (slip op. at 14) (citing D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 119-20 (2007)). Words in a statute "should be interpreted in accordance with common sense in order to effectuate the legislative purpose." Morristown Assocs. V. Grant Oil Co., 220 N.J. 360, 380 (2015) (citing N.E.R.I. Corp. v. N.J. Highway Auth., 147 N.J. 223, 236 (1996)). The court may not "'rewrite a plainly-written enactment of the Legislature.'" DiProspero v. Penn, 183 N.J. 477, 492 (2005) (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)).
"Impracticability" is derived from the root word "impractical," which is defined as "not wise to put into or keep in practice or effect;" an inability to deal "sensibly or prudently with practical matters."
Applying this definition to the record developed before the Board, it is clear to us plaintiff's decision to steadfastly decline to meet the ordinance's buffer requirements was not "impractical" from a zoning perspective. Plaintiff's unwillingness to reconfigure the parking lot to accommodate the fifty-foot buffer requirement was expressly based on avoiding inconveniencing its future patrons by having to walk a longer distance to enter the restaurant. Plaintiff's concerns are therefore grounded on practical economic considerations. By contrast, the Board's view of "impracticability" was based on the intent of the fifty-foot buffer requirement from a zoning perspective.
The record supports the Board's position because the fifty-foot buffer is a practical means of addressing the concerns raised by the people who reside adjacent to plaintiff's site. The fifty-foot buffer would mitigate the noise and other quality of life disruptions associated with residing near a fast-food restaurant designed to operate twenty-four hours a day, seven days per week. The Board's decision to deny plaintiff's site plan application was not arbitrary or capricious because it was directly related to one of the expressed purposes identified by the Legislature in the Municipal Land Use Law: "To promote a desirable visual environment through creative development techniques and good civic design and arrangement." N.J.S.A. 40:55D-2(i).
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Impractical, Merriam-Webster.com, http://www.merriam-webster.com/dictionary/impractical (last visited May 24, 2015).