A marathon zoning board meeting ended with a victory for local residents and a continuance for the Royal Farms project request for a variance. If you just want the bullet points: the developer for Royal Farms had asked for an interpretation to existing Evesham Zoning regulations to find that they were not building a service station within 500 feet of a playground. Alternatively, if they were found to be within 500 feet of a playground, Royal Farms requested a variance to allow the Royal Farms to be built anyway. After 4.5 hours, the Zoning Board did not interpret the regulations in their favor, but it was too late to consider a variance. The variance will be heard at the next zoning meeting on December 18th.
If you want more detailed information and analysis, read on. The meeting got quite convoluted at times, and trying to piece together what happened into an easy to digest narrative is proving challenging.
Damien Del Duca, attorney for FT Equities, owner and developer of the property in question, was given preliminary and final site approval by unanimous vote of the Planning Board back in April. On June 21st, 2018, the homeowners association (HOA) for the Orchards at Greentree filed a complaint with the Superior Court of Burlington County. The HOA agreed that the project met all of the requirements of Evesham code except one: Chapter 161 entitled ‘Zoning Modifications and Additional Requirements, section 161-1 ‘Conditional Uses’, Subsection 4b – “No service station/auto repair shop shall be located within 500 feet of any fire house, school, playground, church, hospital, public building or institution…” Mr Del Duca noted that this objection was not raised at the Planning Board meeting. If the Zoning Board found they were building within 500 feet of a school, the developer was prepared to request a variance which only the Zoning Board could issue, which is why the hearing was at the Zoning Board, not the Planning Board.
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| 500 Ft Radius from approximate location of fuel pumps, right through the Orchards pool |
Much of the evening was spent trying to define terms – without precise definition, an interpretation was not possible.
Playground – there is no definition contained within the Zoning statutes regarding what constitutes a ‘playground’. Mr Del Duca referenced the definition of playgrounds contained within the ‘Subdivisions’ section of Evesham code – when building a new development, what would be required for any playgrounds contained within that new development. This was the same definition I posted in my blog a few days ago in describing the upcoming Zoning Board meeting.
It was noted that this wasn’t really the appropriate definition of playground, as it was only used for new developments. The definition found within Merriam Webster dictionary was quoted. The definition contained within the book ‘New Illustrated Book of Development Definitions’ was quoted repeatedly, by both attorneys, as each thought it proved their point. And many residents, board members and the attorneys sought a common-sense definition of 'playground'.
There were multiple issues regarding the playground. Was the common area at the Orchards a playground? And if it was, what was included in it? The area in question contained a tot-lot, a basketball court, 2 tennis courts, open grassy areas, a pool, a kiddie pool and a drainage ditch. While the developers tried to limit what was included, specifically excluding the pool, the HOA argued the reverse. Many local residents testified that their children and grandchildren used the whole area, including all the grassy areas. One resident even testified that the drainage ditch was used for sledding in the winter, so that should be included as well.
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| Common area at the Orchards - a small 'tot lot' is hidden beneath the trees to the right, next to the basketball court |
Town Planner Ms Furey-Bruder was asked her opinion – she did not feel the area meets the definition of a playground and that certainly the pool would not be included in any definition as access to the pool is regulated and is separately defined in town code. The tot lot and courts could conceivably be considered ‘playground’, but not the pool.
My impression at this point was that the room was approaching a consensus, that a ‘playground’ was where kids play – a common sense definition. That the area did indeed contain a playground, though what was included in that was not yet determined.
Service Station – unlike 'playground', this term is defined in the Zoning section of town code. “Lands and buildings providing for the sale of fuel, lubricants, and automotive accessories, maintenance and repairs for motor vehicles may be provided, but no body repairs or painting or the storage of inoperable or wrecked vehicles beyond the time permitted in this chapter shall be permitted.”
The reason this definition becomes important is in trying to determine where to measure 500 feet to satisfy the ‘proximity requirement’. The developers wanted to measure from the gas canopy, while the HOA wanted to use the property line. Both Mr Del Duca and Ms Furey-Bruder testified that they felt this definition was antiquated. It was probably written in the 1950s, when many gas stations included repair shops on site, when there were open containers and fuel being drained and that standards for storing gasoline are much more efficient than in prior decades. (This section of code, however, was adopted into the Evesham Town Code in 2000.) When asked, Ms Furey-Bruder added that if she were writing requirements for a service station today, she would remove the proximity requirement entirely (the 500 feet restriction), and that any measurement should be done from the gas canopy, not the property line.
If one measures from the gas canopy, only the grassy fields and part of the pool are within 500 feet (neither of which the developers consider playground). If one measures from the property edge, the entire area in question is within 500 feet.
Mr Del Duca also noted that the law is written in such a way that the proximity requirement is intended for those service stations that include a repair shop. The phrase ‘service station/auto repair shop’ is only used once in this ordinance, and only in this section describing the 500 feet proximity clause. The phrase ‘service station’ on its own is used 13 times in this section.
After town professionals, attorneys and expert witnesses for both sides and a couple dozen members of the public spoke, the board voted 5-2 to deny the developer a favorable interpretation. Had it been earlier in the evening, the meeting would have commenced with a request for a variance, but that was postponed until the next Zoning Board meeting.
Prior to this vote, the attorney for the HOA also stated he felt that the developer didn’t comply with the statutes because Royal Farms should be considered a fast-food restaurant, not a store. Unlike Wawa, Royal Farms cooks their food on premises – Wawa only assembles the food. In addition, they have chairs and tables both inside and out for the option to dine at Royal Farms. That objection will be added to the suit in Burlington County Court, and will be discussed at the next Zoning Board meeting as well.
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| There are 4 Broaster 2400 Pressure Fryers at Royal Farms, Magnolia, NJ |
My thoughts:
How to measure 500 feet – I have mixed thoughts on this. On the one hand, measuring from property line to property line sounds reasonable, but it doesn’t always make sense. I was envisioning a giant BJs or Costco with the gas stations toward one side of the property. The entire lot in which the BJs lays would be huge, but the gas station is confined to one side. Does it make sense to measure from the property line? Below is Costco in Mount Laurel. At its furthest distance, the canopy is 732 feet from the edge of the property. Anything built on the next lot would already be 732 feet away from the ‘gas station’.
On the other hand, the lot for this Royal Farms is a lot smaller. Indeed, one of the Zoning Board members asked what were to happen if they were to subdivide the lot into a gas station and a convenience store. While you still might have the question of whether to measure from the canopy or the property edge, the property edge would be much closer to the gas station. On the other hand, if you were to subdivide, there is no bathroom provided to employees the gas station, nor is there any place to dispose of gas station refuse. Indeed the question of gas station refuse does seem significant. Where does the gas station garbage go? Doesn't a service station need a trash container? I’ve circled the gas canopy and used an arrow to indicate the location of the trash dumpster. So any automotive trash ends up much closer to the edge of the property than the gas canopy.
I visited the Royal Farms in Magnolia. While I was not able to locate motor oil, they do sell wiper fluid under the canopy, as well as anti-freeze and diesel exhaust fluid in the store. I would assume that anyone buying anti-freeze at Royal Farms is probably using the anti-freeze there as well.
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| Anti-freeze and Diesel Exhaust Fluid sold inside Royal Farms, Magnolia NJ |
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| Windshield washer fluid sold next to gas pumps, Royal Farms, Magnolia, NJ |
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| Indoor seating at Royal Farms, Magnolia, NJ |
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| Outdoor seating, Royal Farms, Magnolia, NJ |
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| Outside storage for reclaimed cooking oil - Royal Farms, Magnolia, NJ |
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