DEPETRIS FAMILY ASSOCIATES 2, LLC VS. MEDFORD TOWNSHIP ZONING BOARD OF ADJUSTMENT (L-2149-19, BURLINGTON COUNTY AND STATEWIDE)

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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1287-20

DEPETRIS FAMILY
ASSOCIATES 2, LLC,

         Plaintiff-Appellant,

v.

MEDFORD TOWNSHIP
ZONING BOARD OF
ADJUSTMENT,

     Defendant-Respondent.
________________________

                   Argued April 26, 2021 – Decided May 17, 2021

                   Before Judges Sabatino and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Burlington County, Docket No. L-2149-19.

                   Robert S. Baranowski, Jr., argued the cause for
                   appellant (Hyland Levin Shapiro, LLP, attorneys;
                   Robert S. Baranowski, Jr., and Megan Knowlton Balne,
                   on the briefs).

                   Christopher J. Norman argued the cause for respondent
                   (Craig, Annin & Baxter, LLP, and Platt & Riso, PC,
                   attorneys; Christopher J. Norman, on the brief).
PER CURIAM

      This land use appeal arises from an application by plaintiff DePetris

Family Associates 2, LLC ("DePetris") seeking to build a drive-thru1 Dunkin'

Donuts establishment in Medford Township along with three adjacent retail

buildings. Although coffee shops are allowed in the pertinent Community

Commercial ("CC") zone in Medford, the zoning ordinance treats such

businesses with a "drive-thru" component as only conditional uses. Hence, a

use variance is required to enable the drive-thru feature.

      DePetris applied to the municipality's Zoning Board of Adjustment ("the

Board") for a use variance for the proposed project, along with several bulk

variances.   By a five-to-two vote, the Board rejected the application,

substantially (albeit not exclusively) because of concerns about traffic impacts,

in particular, customers who would be making left-hand turns into and out of

the Dunkin' Donuts.




1
  Although the term "drive-through" would be more formal and traditional, we
instead shall use "drive-thru" in this opinion, comporting with how the term is
spelled in the record and the parties' briefs.
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       DePetris challenged the Board's denial by filing a complaint in lieu of

prerogative writs in the Law Division. The Law Division upheld the Board's

decision, and this appeal by DePetris ensued.

      For the reasons that follow, we must remand this matter because the

Board's resolution failed to analyze DePetris's revision of its application at the

end of the hearings. Specifically, the resolution assumed there would be "full

movement access" to the Dunkin' Donuts by motorists at all hours, overlooking

that DePetris agreed in its revised plan to a daily prohibition on left-hand turns

out of the premises onto Taunton Road between the anticipated peak usage hours

of 7:00 a.m. to 9:00 a.m. Because this revision appears to affect a key aspect of

the use variance analysis, the matter must be reconsidered by the Board to take

the revision into account and evaluate it explicitly.

                                        I.

      Since we are remanding the case, we need not detail the facts and

procedural history at length. The following background will suffice for present

purposes.

      DePetris first applied for a use variance from the Board to build a drive-

thru Dunkin' Donuts within a different parcel it owns, a retail complex known

as the Village at Taunton Forge. That parcel fronts Tuckerton Road (Burlington


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                                        3
County Route 620) at a stoplight-controlled intersection with Taunton Road

(Burlington County Road 623). At that intersection, Tuckerton Road consists

of two lanes and runs northwest to southeast, while Taunton Road is a two-lane

road that runs northeast to southwest. It is undisputed that the intersection is

busy, particularly during rush hours.

      By a five-to-two vote in 2017, the Board rejected DePetris's application

for a use variance for a drive-thru Dunkin' Donuts at the Village at Taunton

Forge parcel. That rejection was largely due to concerns about traffic and safety

relating to left-hand turns out of the premises onto Tuckerton Road made by

motorists heading northwest in the direction of Evesham Township and

Philadelphia. In its 2017 resolution denying that application, the Board included

the following suggestion:

            The Zoning Board finds that a more suitable and
            appropriate location for a Dunkin['] Donuts with [a]
            drive-thru may exist on the opposite side of Tuckerton
            Road (e.g.[,] where the recently vacant PNC Bank
            building is located). There, the [a.m.] traffic heading
            westbound to Evesham Township [on Tuckerton Road]
            could readily egress from a Dunkin['] Donuts drive-thru
            by a more manageable and safer right-turn.

            [(Emphasis added).]

      DePetris challenged the Board's denial concerning the Village at Taunton

Forge parcel, through a civil action in lieu of prerogative writs. The judge (now

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                                        4
retired) who presided over that case, agreed with DePetris's arguments and

reversed the Board's decision and remanded for further proceedings. Thereafter,

the Board appealed to this court. In an unpublished opinion issued by a different

panel of this court, we reversed the Law Division and reinstated the Board's

denial as to the first parcel. DePetris Family, LLC v. Medford Twp. Zoning Bd.

of Adjustment, No. A-6009-17 (App. Div. Apr. 21, 2020).

      Meanwhile, DePetris acquired the former bank parcel, which had

previously had a drive-thru component, and again sought a use variance for a

Dunkin' Donuts. This proposed project would also include several retail shops.

      Specifically, in April 2019, DePetris 2 submitted an application to the

Board for use and bulk variance approval to develop a 6,804 square foot retail

shopping center, including an 1,804-square-foot Dunkin' Donuts with a drive-

thru, and up to three adjoining retail or other uses. The site was the vacant

0.917-acre lot formerly occupied by the PNC Bank.

      The Board reviewed this application at public hearings conducted on June

19, 2019 and July 17, 2019. Plaintiff presented four expert witnesses, including




2
  The business entity's name is slightly different than the owner of the first
parcel, but it is clear that it is a related entity owned or controlled by James
DePetris.
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                                       5
an architect, an engineer, a traffic consultant, and a professional planner, plus

testimony from Mr. DePetris and the proposed operator of the Dunkin' Donuts.

      The proposed access drive on Taunton Road is located 150 feet from the

Tuckerton Road/Taunton Road traffic-light intersection.        Plaintiff's traffic

expert explained that, because of the "pass-by" nature of its business, the

Dunkin' Donuts would not appreciably increase the number of vehicles traveling

through the intersection. Instead, the establishment would tend to cause some

motorists who were already on their journey to pull over briefly and use the

drive-thru to obtain a morning coffee and other items. The drive-thru is expected

during peak times to serve over 100 customers in an hour.

      The traffic expert testified that the proposed Dunkin' Donuts, from a

parking and traffic analysis, would be "complementary" to the three proposed

retail stores, given the drive-thru's peak usage times before the retail stores

would open. He stated that 95% of Dunkin' Donuts business traffic on weekdays

is during the a.m. peak hours, i.e., between 7:15 and 8:30 a.m. Additionally, the

Dunkin' Donuts would account for 70% of the site's traffic on Saturdays. He

testified that 17% less traffic exists at the intersection during the morning

commute than at other hours, and that the proposed Dunkin' Donuts would

increase overall traffic at the intersection by only 1-3%.


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                                        6
      The expert estimated that 88% of all traffic patronizing the Dunkin'

Donuts would use the drive-thru. He asserted the proposed drive-thru lane had

been designed to permit queuing for up to nine motor vehicles. According to

the expert, the average queuing, on the whole, would be four-to-five motor

vehicles at a time, with an average of six during the peak hour.

      Several residents testified in opposition to the project, nearly all of them

expressing concerns about traffic impacts at the intersection. The municipal

engineer and several Board members likewise voiced concerns about traffic

impacts, especially customers in the morning who would be making left-hand

turns out of the Dunkin' Donuts onto Taunton Road near the traffic light.

      Near the end of the second day of hearings on July 17, a Board member

asked plaintiff's counsel if DePetris would be willing to modify its application.

The Board member noted that he regarded the left-hand turn onto Taunton as

"problematic," and also expressed concerns about aspects of the bulk variances

sought, particularly the deviation from lot coverage restrictions. Other Board

members chimed in, likewise noting, among other things, the left-hand turn

problems.

      Plaintiff's counsel obtained a recess to confer with his client and experts

about these concerns.    When the hearing was resumed, plaintiff's counsel


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                                        7
announced that DePetris would agree "to restrict the left turn movements out

onto Taunton Road from 7:00 a.m. to 9:00 a.m." Pursuant to this revised

proposal, left turns into the Dunkin' Donuts would still be permitted at all hours.

      A Board member asked plaintiff's counsel to clarify whether the proposed

restriction on left-hand turns out of the parcel would only be in force on

weekdays. Counsel responded that the restriction would be in force from 7:00

a.m. to 9:00 a.m., seven days a week. Counsel also agreed to other restrictions

that did not involve traffic matters.

      A roll call vote ensued, with two Board members voting in favor of the

modified application and five voting nay.

      The Board issued a resolution on August 21, 2019 rejecting the

application.   The resolution cited various reasons why DePetris had not

persuaded a majority of the Board members that it had met its burden to establish

the so-called "positive criteria" and "negative criteria" for a use variance under

N.J.S.A. 40:55D-70(d) and Medici v. BPR Co., 

107 N.J. 1

, 18, 21 (1987). The

resolution further explained why the bulk variances sought by DePetris

concerning lot coverage and other items had also been rejected.

      Critical to our review here, paragraph 38 of the resolution states the

following about the traffic and left-hand-turn concerns:


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                                        8
            The Zoning Board finds that Applicant's proposed plan
            for a full movement access at Taunton Road creates an
            unsafe ingress/egress and inefficient traffic circulation
            for motor vehicles attempting a left-turn movement
            from the Dunkin['] Donuts onto Taunton Road. This
            Zoning Board finding is supported by [B]oard
            members' personal knowledge of existing conditions at
            this    highly-trafficked   intersection     and    their
            understanding that the zoning prohibition of drive-
            thru's in the CC Zone is based, in part, on traffic
            considerations.

            [(Emphasis added).]

      Notably, this analysis does not address the applicant's revised proposal

that would restrict left-hand turns onto Taunton Road each day during peak

hours of 7:00 a.m. to 9:00 a.m.      The temporal restriction is mentioned in

paragraph 35 of the resolution (although misstated as a six-day limitation) as a

component of the modified application, but it is not analyzed.

      Later, in the final paragraph of the resolution (number 44), the Board

"emphasizes that the drive-thru traffic at a Dunkin['] Donuts during the [a.m.]

peak hour is significantly higher and more intense than drive-thru traffic at a

bank and pharmacy throughout a full business day." But this finding ignores the

applicant's concession that it would disallow left-hand turns onto Taunton Road

during peak morning hours.



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                                       9
      When counsel argued this case before the Law Division in a remote

hearing on June 5, 2020, the judge3 pressed the Board's attorney about the

significance of DePetris's agreement "not to have left hand turns during the peak

morning hour[s]." The Board's counsel responded that drivers often do not "pay

attention to those signs," although he cited no supporting data to substantiate

this phenomenon or how frequently it occurs.

      The judge issued an oral opinion affirming the Board's decision, agreeing

that DePetris had not established the positive and negative criteria required to

obtain a use variance, and, moreover, that the Board was justified in rejecting

the applicant's multiple requests for bulk variances. The judge determined that

the Board's decision was neither arbitrary nor capricious. This appeal ensued.

                                       II.

      Generally, judicial review of a decision of a municipal planning board or

board of adjustment is highly deferential. "[T]he law presumes that boards of

adjustment and municipal governing bodies will act fairly and with proper

motives and for valid reasons [and] . . . [a] local zoning determination will be

set aside only when it is arbitrary, capricious or unreasonable." Kramer v. Bd.



3
   A different judge heard this application than the one who had heard the
previous case involving the Village at Taunton Forge parcel.
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                                      10
of Adjustment, Sea Girt, 

45 N.J. 268

, 296 (1965); see also Price v. Himeji, LLC,

214 N.J. 263

, 284 (2013) (reiterating the judiciary's limited standard of review

of zoning board decisions). The plaintiff has the burden of proving the land use

decision is arbitrary, capricious, or unreasonable. See Dunbar Homes, Inc. v.

Zoning Bd. of Adjustment of Franklin, 

233 N.J. 546

, 558 (2018).

      That said, a municipal land use board's interpretation of the law is

reviewed de novo and is not entitled to deference. Dunbar 

Homes, 233 N.J. at

559

(citation omitted). In addition, the record must contain sufficient evidence

to support the land use board's factual findings. Darst v. Blairstown Twp.

Zoning Bd. of Adjustment, 

410 N.J. Super. 314

, 325 (App. Div. 2009) (citation

omitted).

      With respect to obtaining use variances, the law prescribes that an

applicant has an enhanced burden. The applicable statute provides:

            No variance or other relief may be granted under the
            terms of this section . . . without a showing that 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(d) (emphasis added).]




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                                      11
The grant of a use variance pursuant to this section requires proof of both

"positive and negative criteria." Sica v. Bd. of Adjustment of Wall, 

127 N.J.

152

, 156 (1992).

      In cases where the asserted use is not inherently beneficial to the public

good, the applicant's proof of "positive criteria" requires a showing that special

reasons exist to grant the use variance. See N.J.S.A. 40:55D-70(d). These

"special reasons" are defined by the general purposes of the zoning laws, as

codified in N.J.S.A. 40:55D-2. Burbridge v. Twp. of Mine Hill, 

117 N.J. 376

,

386 (1990). The asserted positive criteria must be site-specific, in that the

applicant must show that the proposed use is "peculiarly fitted to the particular

location for which the variance is sought." Kohl v. Mayor of Fair Lawn, 

50 N.J.

268

, 279 (1967) (citations omitted) (emphasis added). In the years since Kohl

was decided, that requirement has not changed. 

Medici, 107 N.J. at 18

.

      Meanwhile, the "negative criteria" requirement of subsection (d)

incorporates two distinct, but related, forms of proof. First, an applicant must

show that the non-conforming use of the property will not cause "substantial

detriment to the public good."     N.J.S.A. 40:55D-70(d).     The focus of this

criterion is also site-specific, and requires an assessment of the proposed




                                                                           A-1287-20
                                       12
variance's impact on the surrounding properties, and whether it will cause

"damage to the character of the neighborhood." 

Medici, 107 N.J. at 22

n.12.

      A second demonstration required under the negative criteria prong of

subsection (d) is a showing that the proposed non-conforming use "will not

substantially impair the intent and the purpose of the zone plan and zoning

ordinance." N.J.S.A. 40:55D-70(d). The burdens involved in making this

showing were substantially increased by the Supreme Court in Medici.

Specifically, since Medici, applicants seeking a use variance must now offer "an

enhanced quality of proof . . . that the variance sought is not inconsistent with

the intent and purpose of the master plan and zoning ordinance." 

Medici, 107

N.J. at 21

. Such "enhanced proof" must "reconcile the proposed use variance

with the zoning ordinance's omission of the use from those permitted in the

zoning district." Ibid.; see also Saddle Brook Realty, LLC v. Twp. of Saddle

Brook Zoning Bd. of Adjustment, 

388 N.J. Super. 67

, 75 (App. Div. 2006).

      In applying these factors, zoning boards of adjustment must make "clear

and specific findings" as to the positive and negative criteria underlying their

decisions. 

Medici, 107 N.J. at 21

. A board's resolution granting a use variance

must therefore contain sufficient findings to allow a reviewing court to conclude




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                                      13
that the board rigorously performed the required analysis of the proposed

variance's compatibility with the master plan and zoning ordinance.

Id. at 23.

      With these principles in mind, we proceed to address at this time two

facets of this case, one of which requires a remand.

      The first issue we address is the legal significance of the Board's comment

in its resolution concerning the first parcel, insofar as it suggested that DePetris

consider applying for a use variance for the vacated bank parcel across the street.

We agree with the Law Division judge that the comment was merely a

suggestion and should not guide the present litigation.

      For one thing, the passage used the word "may," which is indicative of

something that is possible but not mandated. In re State Bd. of Educ. Denial of

Petition, 

422 N.J. Super. 521

, 532 (App. Div. 2011).

      Second, as the judge rightly noted, the Board's suggestion concerned

another Dunkin' Donuts drive-thru, not a more expansive application that

includes three retail stores and a number of necessary bulk variances. We agree

that the earlier resolution is legally inconsequential.

      The second point we address is more concerning. For reasons that are

unclear, the traffic impact analysis in paragraph 38 of the Board's resolution says

nothing about DePetris's express revision of its application to include a peak-


                                                                             A-1287-20
                                        14
hour prohibition on left-hand turns out of the premises onto Taunton Road. As

we have recounted, that modification was tendered by DePetris in direct

response to concerns about left-hand turns expressed by the township engineer,

several Board members, and members of the public. The Board voted on the

modified application, not the original version.

      Because a substantial portion of the Dunkin' Donuts customers are

expected to patronize the drive-thru during the morning rush hours, and then

business slackens later in the day, the peak-hour concession potentially could

have a material impact on the traffic analysis. But the Board said nothing about

it within its evaluation. The non-evidential comments by its counsel at oral

argument in the Law Division about disobedient drivers, although perhaps

intuitively correct, cannot salvage the omission.

      N.J.S.A. 40:55D-10(g) requires municipal land use boards to render

written findings of fact and conclusions on "any application for development."

The importance of this obligation was underscored by the Supreme Court in

Medici, 107 N.J. at 21

, 23. Here, we cannot tell from the resolution why the

Board majority deemed the seven-day peak-hours limitation on left turns onto

Taunton Road inadequate to address the traffic objections.




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                                      15
      The Court has expressly "discouraged" reviewing courts from exercising

original jurisdiction over factfinding in land use cases. Price v. 

Himeji, 214 N.J.

at 294

. Only when "[n]o useful purpose would be served by remanding the

matter" may we decide the land use issue in the first instance.

Ibid. (alteration

in original)

(quoting Bressman v. Gash, 

131 N.J. 517

, 529 (1993)); see also

Urban v. Planning Bd. of Manasquan, 

124 N.J. 651

, 663 (1991) (remanding a

case to a land use board, with instructions to consider an applicant's amended

application).

      Although the Board's rejection of DePetris's application also concerned

non-traffic considerations, including the bulk variance requests, we cannot

determine whether such factors would have defeated the application without the

traffic concerns. Clearly the traffic concerns were a major part of the proceeding

and the commentary. It is not our role to read the minds of the decision-makers.

      Thus, we must remand this case to the Law Division, which in turn is

directed to remand the matter to the Board for further consideration and the

issuance of a new resolution. Either party is free to adduce further relevant

evidence on the traffic issues before the Board, including, for example, any data

that may exist or be compiled about the compliance of motorists with rush -hour




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turn limitations and signage, as well as expert analysis of how the rush-hour

limitation would be expected to impact the volume and flow of vehicles .

      We express no views about the merits, and decline to comment at this time

about the separate bulk variances.

      Vacated and remanded for further proceedings.        We do not retain

jurisdiction.




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                                     17

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