SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6009-17T1

DEPETRIS FAMILY, LLC,

Plaintiff-Respondent,

v.

MEDFORD TOWNSHIP ZONING

BOARD OF ADJUSTMENT,

Defendant-Appellant.

_______________________________

Submitted March 16, 2020 – Decided April 21, 2020

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, 

Law Division, Burlington County, Docket No. L1938-17.

Platt & Riso, PC, attorneys for appellant (Christopher 

J. Norman, on the briefs).

Hyland Levin Shapiro LLP, attorneys for respondent 

(Robert Baranowski, on the brief). 

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
A-6009-17T1 2

In this action in lieu of prerogative writs, defendant Medford Township 

Zoning Board of Adjustment (the Board) appeals from an August 9, 2018 

judgment in favor of plaintiff Depetris Family, LLC, reversing the Board's 

denial of plaintiff's variance application and remanding to the Board for 

further proceedings. We reverse and uphold the Board's denial of the use

variance application. 

Plaintiff owns real property, known as the Village at Taunton Forge 

Shopping Center (the Center), in the Township of Medford, located in the 

Community Commercial Zoning District (CC Zone). In 2014, the Board 

approved plaintiff's plan to redevelop the Center, including permission for a 

coffee shop. Plaintiff instead proposed opening a Dunkin' Donuts with a 

drive-through; however, the CC Zone prohibits fast food restaurants, including 

drive-through food establishments. Plaintiff therefore applied for a use 

variance and site plan approval. 

The Board held hearings over the course of three days between March 

2017 and July 2017. Plaintiff's representatives, and Dunkin' Donuts's

representatives, testified in support of the application. Board members, who 

were familiar with the local conditions, expressed concern about how the 

proposed drive-through would impact traffic. The Board reviewed a traffic 

study, which confirmed that the average time needed to make a left turn out of 
A-6009-17T1 3

the Center and onto Tuckerton Road during morning peak traffic was 78.2 

seconds per vehicle, and that with the addition of the drive-through, typically 

three to four vehicles would queue while waiting to make that left turn. Thus, 

drivers may wait several minutes before being able to exit the Center. The 

study also considered an alternative, more circuitous exit route, which would 

require an average time of 37.8 seconds per turn. At the end of the hearings, 

the Board denied the application. 

The Board premised the application's denial on its conclusion that the 

drive-through would be an ineffective and unsafe egress from the shopping 

center for left turns onto Tuckerton Road between 7:00 a.m. and 9:00 a.m. It 

relied on Price Co. v. Zoning Board of Adjustment of Union, 279 N.J. Super. 

327, 334 (Law Div. 1993) (stating that Board members could reject expert 

testimony and rely on their own knowledge of traffic conditions), aff'd o.b., 

279 N.J. Super. 207 (App. Div. 1994).

On appeal, the Board raises the following points for this court's 

consideration:

POINT I

THE ZONING BOARD'S DENIAL OF THE 

REQUESTED USE VARIANCE WAS 

REASONABLY MADE AND SUPPORTED BY 

EVIDENCE IN THE RECORD BELOW.
A-6009-17T1 4

In its reply brief, the Board raises the following additional points, which we 

have renumbered: 

A. The Zoning Board Reasonably Relied Upon 

The Traffic Gap Study Finding Of A 78.2 Second 

Delay For Left-Turns Onto Tuckerton Road To 

Justify Its Denial Of The Use Variance.

B. The Zoning Board's Denial Of Use Variance 

Approval Was Not Based Upon Any 

Misinformation Or Misunderstanding. 

C. The Zoning Board Did Not Discriminate 

Against Respondent's Dunkin['] Donut[s]

Application, Compared To Other Coffee Shops 

With Drive-[Throughs] Granted Use Variance 

Approval In Other CC Zoning Districts of 

Medford Township.

D. The Zoning Board's Approval Of Drive-

[Throughs] For A Bank And Rite Aid Pharmacy 

At Respondent's Shopping Center Is Not 

Dispositive Because Those Uses Are Not AM 

Peak Uses.

E. The 2015 Site Plan Approval For A Coffee 

Shop At Respondent's Shopping Center Without 

Drive-[Through] Is Not Dispositive, Because The 

Board Reasonably Concluded That Coffee Shops 

With Drive-[Throughs] Generate Higher 

Customer Trips.

F. The Zoning Board Engineer Provided The 

Zoning Board With Relevant Evidence Of A 

Traffic Gap Study Concluding That a 78.2 

Second Delay Would Exist For Left-Turns Onto 

Tuckerton Road And Allowed The Board 

Members To Reach Their Own Conclusions As 
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[To] Whether Such Condition Was Unacceptably

Inefficient Or Unsafe.

G. The Zoning Board Members' Collective Decision 

Is Set Forth In Its Resolution Of Denial. 

Our standard of review is well settled. "We have long recognized that 

zoning boards, 'because of their peculiar knowledge of local conditions[,] must 

be allowed wide latitude in the exercise of delegated discretion.'" Price v. 

Himeji, LLC, 214 N.J. 263, 284 (2013) (alteration in original) (quoting Kramer 

v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965)). A local board's 

decision "enjoy[s] a presumption of validity, and a court may not substitute its 

judgment for that of the board unless there has been a clear abuse of 

discretion." Ibid. A court "should not disturb the discretionary decisions of 

local boards that are supported by substantial evidence in the record and reflect 

a correct application of the relevant principles of land use law." Lang v. 

Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58-59 (1999).

Under the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163, a 

zoning board is vested with the power "[i]n particular cases for special 

reasons, [to] grant a variance to allow departure from regulations . . . to permit 

. . . a use or principal structure in a district restricted against such use or 

principal structure[.]" N.J.S.A. 40:55D-70(d). "No variance or other relief 

may be granted . . . without a showing that such variance or other relief can be 
A-6009-17T1 6

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." Ibid.

The Board contends that it reasonably relied on the traffic study in 

concluding that plaintiff's use variance application should be denied. "A

planning board should consider off-site traffic flow and safety in reviewing 

proposals for vehicular ingress to and egress from a site." Dunkin' Donuts of 

N.J., Inc. v. Twp. of N. Brunswick Planning Bd., 193 N.J. Super. 513, 515 

(App. Div. 1984) (citation omitted). "[T]he authority to prohibit or limit uses 

generating traffic into already congested streets or streets with a high rate of 

accidents is an exercise of the zoning power vested in the municipal governing 

body." Ibid. (citation omitted); see also El Shaer v. Planning Bd. of Lawrence, 

249 N.J. Super. 323, 329 (App. Div. 1991) (indicating that "it was entirely 

proper for the [b]oard to consider the accessibility to and from the 

development onto . . . a heavily travelled state highway"). 

In Price Co., the judge announced that, in considering whether to grant a 

use variance application, a zoning board has a right to consider existing traffic 

conditions and the impact that the proposed use would have on those 

conditions. 279 N.J. Super. at 334. The judge noted that the board had a right 
A-6009-17T1 7

to rely on "their own peculiar knowledge of traffic conditions" in rejecting the 

application for the use variance. Ibid. 

Here, the Board denied plaintiff's application based on comprehensive 

traffic reports and personal knowledge of traffic conditions in making their 

decision. It found that "the 78.2-second delay time for left-turn movements by 

each vehicle creates a potentially hazardous condition for impatient or 

inexperienced motor vehicle operators." At best, this drive-through Dunkin'

Donuts would result in inefficient traffic circulation at peak hours, and at 

worst it would result in unsafe traffic conditions. Cf. Sica v. Bd. of 

Adjustment of Wall, 127 N.J. 152, 166 (1992) (holding that a board should 

consider whether the use variance grant "would cause a substantial detriment 

to the public good"). 

The Board members used their own knowledge and experience in 

considering the existing traffic conditions around the Center. See Price Co., 

279 N.J. Super. at 334. The Board emphasized that the roads are "heavily 

trafficked," especially during peak morning hours. In its decision, the Board 

explicitly stated it considered the submitted expert opinions in determining 

whether to grant the use variance. Based on those opinions, as well as 

personal considerations, the Board determined that the use variance should not 

be granted. 
A-6009-17T1 8

The Board asserts, and we agree, that it did not rely upon any 

"misinformation or misunderstanding" or facts to support its denial of the use 

variance application. Plaintiff argues that the Board "erroneously asserted that 

the study was conducted over the Easter break," and therefore traffic was 

"down significantly" that day. Although one Board member initially believed 

that the study was conducted during the local school's Easter break, the Board's 

engineer stated that the Board member was incorrect and that school was in 

session on the day the study was conducted. Additionally, the Board's 

chairperson reiterated that the Board member was incorrect, and the mistaken 

Board member himself then admitted that the school was on Easter break the 

following week. We therefore reject plaintiff's assertion that the entire Board 

was mistaken. The Board member corrected himself and recanted his 

statement. As plaintiff notes, the Board members were aware of the incorrect 

statement before making their ultimate determination. 

The Board argues that it reasonably denied this use variance 

application⸻despite approving applications for other coffee shops with drivethroughs⸻because of the impact this establishment would have on traffic in 

considering its location. The Board may contemplate off-site traffic 

considerations when determining whether or not to grant a use variance 
A-6009-17T1 9

application, and it can take steps to limit traffic into already congested areas. 

Dunkin' Donuts, 193 N.J. Super. at 515; see El Shaer, 249 N.J. Super. at 329. 

Here, there is no evidence that the Board discriminated against this 

proposed use variance compared to other coffee shops with drive-throughs in 

the area. The Board reasonably explained that the other coffee shops are 

located in areas that are considerably more accessible. Additionally, the 

approval of one of the other coffee shops was conditioned on a no-left turn out 

of the area. 

The Board previously approved drive-throughs in the Center for a RiteAid and for a bank. The Board contends that these previous approvals do not 

require them to now approve a Dunkin' Donuts drive-through in the same 

shopping center. We agree. Just because a proposed use fits within the 

scheme of an existing shopping center does not necessarily support the 

assertion that a particular location would be suitable for a fast food restaurant. 

Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of 

Adjustment, 388 N.J. Super. 67, 77 (App. Div. 2006); see also Funeral Home 

Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 209 (App. Div. 1999) (holding 

that "although property may be thought to be particularly suitable for a 

proposed use because the use fits well with the surrounding area . . . , that does 

not equate to special reasons"). Furthermore, even if a zoning board grants a 
A-6009-17T1 10

conditional site plan approval, the board is not required to ultimately grant 

approval if the applicant is unable to meet all conditions. See Park Ctr. at 

Route 35, Inc. v. Zoning Bd. of Adjustment of Woodbridge, 365 N.J. Super. 

284, 291 (App. Div. 2004). As the Board noted in its brief, those use 

variances were granted because they were "conditioned upon the installation of 

a pork chop1to prevent left-turn movements onto Tuckerton Road," which is 

the same reason for the denial here. 

The Board next argues that it was not required to grant a use variance for 

a Dunkin' Donuts with a drive-through, even though it had granted a 

preliminary approval for the site without a drive-through. The Board contends 

that a Dunkin' Donuts with a drive-through at another location generated sixty 

percent higher income after the drive-through was installed, therefore it was 

reasonable to conclude that more customers would come to the proposed 

Dunkin' Donuts, thus increasing traffic in and out of the Center. 

Plaintiff's traffic engineer testified that the amount of traffic added by 

the drive-through would not be significant. However, when pressed at the 

hearing to quantify the difference, the traffic engineer failed to provide 

1

 A pork chop is a triangular island with a tail pointing to approaching traffic. 

The pork chop forces traffic to go a certain way⸻in this case to the right⸻to 

prevent the attempt to make a left turn on Tuckerton Road. 
A-6009-17T1 11

numbers to reinforce his opinion. The Board disregarded that part of the 

factually unsupported traffic engineer's opinion.

In its resolution of decision, the Board specifically enumerates, as it 

argues here, that it used plaintiff's expert opinion to draw its own conclusions. 

The Zoning Board Engineer then reviewed [plaintiff's] 

complete supplemental traffic analysis in his report, 

. . . which concluded that, at full build out conditions, 

during the [a.m.] peak hour (from [seven a.m.] to 

[nine a.m.]), a Level of Service "F" is projected for a 

left-turn onto Tuckerton Road from the [Center's]

entrance with an average delay of 78.2 seconds per 

vehicle attempting such movement. The Zoning 

Board Engineer, thus opined that, on average, a total 

of [three] to [four] vehicles would likely [queue]/stack 

in attempting this left-turn movement[.]

As the Board made clear, it did not reject plaintiff's expert testimony. Rather, 

it used the expert's testimony and reports to come to its own conclusions. See

Price Co., 279 N.J. Super. at 334 (noting that the board "had a perfect right to 

reject the testimony of the traffic experts, to the extent that they disagreed with 

them, and to use their own peculiar knowledge of traffic conditions"). The Board 

explained how it got to its final decision and which facts and testimony it relied on. 

N.J.S.A. 40:55D-10(g) provides that "[t]he municipal agency shall 

include findings of fact and conclusions based thereon in each decision on any 

application for development and shall reduce the decision to writing." The 

agency must then "provide the findings and conclusions through . . . [a] 
A-6009-17T1 12

memorializing resolution adopted at a meeting[.]" Ibid. A decision on an 

application must be written and include "findings of fact and conclusions 

based thereon." Aurentz v. Planning Bd. of Little Egg Harbor, 171 N.J. Super. 

135, 142 (Law Div. 1979).

In Scully-Bozarth Post #1817 of Veterans of Foreign Wars v. Planning 

Board of Burlington, 362 N.J. Super. 296, 312-13 (App. Div. 2003), this court 

announced that discussion amongst board members in a public forum is 

beneficial, but not mandatory. This court urged that off-the-record discussions

between board members is appropriate. Ibid. Typically, before finalizing its 

resolution, board members will discuss multiple versions of the resolution to 

ensure that it encompasses all board member's intent. Ibid.; see Park Ctr. at 

Route 35, 365 N.J. Super. at 289 (holding that the entire record is to be 

considered in determining what was decided, notwithstanding the failure to 

include in the memorializing resolution). 

Here, the Board's resolution encompassed its findings, which were 

supported by the record. The nine-page resolution clearly announced the facts 

that the Board considered in making its decision. The resolution recognized 

testimony that it found unconvincing. It noted that the Board's engineer agreed 

with the information in plaintiff's traffic report and used it to come to his own 

conclusions. The Board clearly found that the grant of the use variance would 
A-6009-17T1 13

result in traffic delays of up to an average of 78.2 seconds per car, which 

would exacerbate traffic during peak morning hours. Because of these 

findings, the Board ultimately denied the use variance application. The 

Board's reasoning and findings were clearly enumerated in its resolution. 

Finally, the Board argues further that the judge misinterpreted Section 

602(D) of Medford's Land Development Ordinance (LDO). Specifically, the 

Board questioned the judge's conclusion that the Board's denial "was improper 

because Medford Township failed to adopt zoning standards for a use that is 

not a permitted use." This section applies only to fast food restaurants 

constructed prior to June 1, 1992, which does not include plaintiff. Thus, it is 

inapplicable. 

Reversed.