Home Depot used to say, “Good things happen when Home Depot comes to town.” And the corollary of that must be: Bad things happen when Home Depot doesn’t come to town. In the case of Logan Township, New Jersey, Home Depot has decided that if the town’s Zoning Board will not let them come to town, the developer will try to use litigation as a hammer to get in. The developer, Center Square Builders, was rejected by the Zoning Board, who said a Home Depot would create traffic problems on local roads. The developer is challenging that in Superior Court, according to the Gloucester County Times. Not surprisingly, the developer says his traffic engineer thinks the roadways will be fine. “Our traffic engineer said this use would generate no more traffic than other allowable uses in that location,” said a lawyer for the developer. Center Square Builders needed to get a land use change to allow them to build a 132,659 s.f. Home Depot, plus another 71,847 s.f. of additional retail space. Unfortunately for the developer, the land they chose was not properly zoned for big box stores. The parcel is zoned “interchange commercial,” and is intended for hotels, motels or restaurants. They could have applied for the Hotel Home Depot, but the Zoning Board voted 5-2 against rezoning the land. Rezoning requires an affirmative two-thirds vote, so the change failed by 3 votes. The lawyer for the township’s Zoning board told the newspaper that potential traffic problems concerned the board. “The board’s main concern is that Home Depot represented that the majority of customers would come off Interstate 295,” he said. “The board was not convinced that they would not come through local roads in the township.”
Big box developers believe that what you can’t get by regulation, try to get by litigation. The developer must now prove that the township was arbitrary and capricious. But in this case, the developer has no “as of right” use of this land because a large scale retail store is not a permitted use in this zone, and the township is under no mandate to rezone for any developer, big or small. The idea of an “interchange commercial” is to allow uses that are highway-related, like a hotel, motel or restaurant for travelers. People on the interstate don’t need to stop for a hammer. The developer now is relying on the hope that the town will be too intimidated to spend money on legal fees, and will give up the case. But the township likely knows they have a solid case, and judges don’t like to substitute their judgement for local officials when interpreting the local zoning code.
