A Superior Court judge in New Jersey has hammered Home Depot’s efforts to construct a store in Logan Township, New Jersey. The Gloucester County Times reports today that the court has upheld a Logan Township Zoning Board decision to deny a use variance that would have brought the big box store to the township. A use variance was required by Home Depot at the intersection of Center Square Road and Pureland Drive because the proposed location is not zoned for retail. The judge supported the zoning board’s decision that the developer did not meet its burden and the board made a fair decision. “To my knowledge this is the first time a local board was upheld in the denying of a use variance for a big box application,” a township official told the newspaper. The developer, Center Square Real Estate Development, tried to put its best face on the decision. “This wasn’t shooting down a big box, we were seeking a use variance,” he said. “It’s really a loss for the town and the taxpayers in the long run. They’re losing out on a nice ratable.” This case took roughly one year to resolve. The developer originally filed an application with the zoning board in March 2006 for a use variance to build a 132,659 s.f. Home Depot with garden center plus an additional 71,847 s.f. for a retail shopping center. The developer had to show “special reason” as to why a use variance should be granted, and demonstrate that this huge project would not impair the township’s zoning ordinance. The Logan township zoning board denied the variance on a 5-2 vote, citing concerns with the traffic impact on the community. “In that shopping area the existing stores are community orientated. If there was a big box there it would draw people from all over,” a township official explained. The developer, as usual, contended that their project would make the traffic flow improve, because upgrades and turning lanes would have been added to the intersection. The developer argued that traffic would not increase in the area since most people do not shop at a Home Depot during rush hour. “The traffic would have been off peak, not during rush hour,” the developer claimed. “People go to Home Depot on the weekends. They don’t go shopping at rush hour.”
This is an interesting theory: that Home Depot shoppers arrive mainly on the weekends. It is true that Saturdays are peak car trips times for stores like Home Depot, but the weekdays get heavy volume also from shoppers arriving before and after work. The judge obviously was not moved by the developer’s statements, but sided with the township’s traffic concerns instead. This case illustrates the concept that if a local board feels the traffic will not work, the courts are likely to support them, assuming there has been some expert testimony entered into the local hearing record that states traffic will be a problem. Local boards often don’t believe they can make such statements, because the developer comes in with his traffic engineer who says thousands of new car trips per day are going to make the roads work better. However, if the local board has its own peer review traffic engineer, or presents some testimony that the traffic will be bad, the outcome in court is likely to be the same as in this Logan case. If a local board caves in and is intimidated by the developer’s traffic testimony, it is equally hard for citizens groups to prevail in court on the traffic issue, even when they have presented compelling arguments from their own traffic engineer. This is because the courts usually do not wish to substitute their judgment for that of local boards when interpreting a local ordinance. The key is to make sure your local board understands that it can reject a project based on traffic, as long as it has credible evidence to back up its assertions.