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The developers of the Aisle Nine grocery store are seeking approval from Lakewood Township's Zoning Board to expand with additional warehouse storage space, food preparation rooms, offices and an off-road delivery truck loading area.

The application is ZB Appeal 4244 and is on the Board's agenda for this coming Monday night's public hearing. The Board Attorney and Engineer did not spot any legal issues, however, from our review, it appears that their legal notice is deficient and therefore the Board lacks jurisdiction to hear the application and needs to carry the application until the applicant publishes a new notice. The Board's next meeting won't be until September.

The legal notice, published by Attorney Adam Pfeffer on June 3rd and mailed to property owners within 200 feet states:

PLEASE TAKE NOTICE that AISLE NINE LLC has applied to the Lakewood Township Zoning Board of Adjustment for preliminary and final major site plan together with Use & bulk variance approval to construct an addition to the existing property known as Lots 1 & 5 in Block 98 which contains a gas station and a commercial building with grocery store on Lot 1. There is a refuse enclosure and trailer on Lot 5 which trailer is proposed to be removed. 

The property is situated at the corner of Madison Avenue & 10th Street and is situated in the R-20 single family residential zone. The existing grocery store and gas station are pre-existing non-conforming uses and applicant will seek the following variances: Minimum front yard setback of 9.04 feet is proposed where 25 feet is required; Minimum rear yard setback of .21 feet is proposed where 15 feet is required; Minimum side yard setback of 6.88 feet is proposed where 12 feet is required; Maximum building height of 48 feet is proposed where 35 feet maximum is allowed. 

Said application shall include a request for any and all other variances and waivers as may be required by submission and discussion of the plans. 

The aforesaid has been scheduled for a hearing before the Lakewood Township Zoning Board of Adjustment, at the Municipal Building, 231 Third Street, Lakewood, New Jersey on Monday, June 13, 2022 at 7:00 p.m. or as soon thereafter as possible. The application, maps and supporting documents are on file in the Lakewood Township Zoning Board of Adjustment office , 212 Fourth Street, Lakewood, N.J. Any questions, comments or submittals by the public should be directed to the Board Secretary, Fran Siegel, during normal business hours (732 ) 364-2500 X5601

According to the notice, the site is located in the R-20 single family residential zone. However, it is actually located in the R-OP Residential Office Park zone. As such, the notice should be deficient.

The notice should also be deficient because it fails to mention that there are offices proposed in this application.

The New Jersey Municipal Land Use Law (40 § 55D-11) requires legal notices to state "the nature of the matters to be considered."

The New Jersey Appellate Division, under Perlmart v. Lacey Tp. Planning Bd, has clarified that "proper notice is a jurisdictional prerequisite, and a failure to so provide is fatal to the Board's approval".

In the Perlmart case, the Apellate Division invalidated the notice, finding that "the purpose for notifying the public of the nature of the matters to be considered is to ensure that members of the general public... are properly apprised ... so they may make an informed determination as to whether they should participate in the hearing or at least look more closely at the plans on file".

In simpler terms, the Apellate Division tossed out a Board approval because the notice did not reasonably provide neighbors and the public an accurate description of what the property will be used for, and as such, the board lacked jurisdiction to consider the application.

Subsequent to Perlmart, the Apellate Division heard Pond Run Watershed Association vs Hamilton Zoning Board, where there was a planned restaurant serving alcohol and that was never published in the notice.

As part of the court's analysis of the earlier Perlmart decision, the court noted that traffic and public safety issues associated with a facility serving intoxicating beverages would reasonably be of "heightened concern" to surrounding residents and property owners, and as such, the court found fault in that the notice should have specifically included this use.

In a similar mindset, all office buildings in Lakewood have parking shortages, therefore, this use may be cause for "heightened concern" among neighbors who would have come out to oppose the approval if they knew about it beforehand (especially because Aisle Nine's application does not provide parking for these offices as we will explain below); as Aisle Nine's notice did not include the proposed office use, the notice should be deemed deficient and the Board lacks jurisdiction to hear the application.

If and when the Board does have jurisdiction to hear the case, here's what you need to know:

The application seeks to expand their current site, located on Route 9 between 9th and 10th Street, onto the former Cheder School lot, which, according to public records, they recently purchased for $750,000 from Beth Medrash Govoha. The trailers and refuse on that site would be removed to make way for the Aisle Nine expansion.

A new, off-road, delivery truck loading spot will be installed off 10th Street, in front of the expanded lot (adjacent to the existing driveway).

The applicant's professionals are likely to extoll to the Board the virtues of this new off-road loading spot, saying that it will eliminate the existing condition of the trucks congesting this narrow road while unloading. However, the Township's policy is that all new development approvals need to include provisions for widening the road to 32 feet, and Aisle Nine's Site Plan does not include provisions for widening 10th Street, which is only 30 feet wide, to 32 feet wide. As such, it is unclear if trucks will indeed be able to k-turn and back in to the new truck loading spot.

Additionally, according to the architectural plans, there are new offices proposed with this expansion. The plans do not provide the required parking spaces for the offices.

According to the Site Plan designed by NewLines Engineering, the existing parking lot will be reconfigured to provide only 1 driveway on Route 9, and 2 driveways on 10th Street. After completion, the parking lot will contain a total of 37 parking spaces, 6 of which will be narrow and in front of the store, and will be marked for "compact cars only".

The Site Plan notes that this meets the Township ordinance which requires 1 parking space per 200 sq feet of retail space, as well as 1 parking space per every 1,000 square feet devoted to the warehouse.

However, this does not include parking for the offices. The architectural plans submitted show 1 existing office as well as 3 proposed offices and a conference room, for a total of 1379.07 sq feet. The Township requires 1 space per 250 sq feet of office space so they need to provide 5.5 (6) parking spaces for these offices. 

As such, while the Site Plan submitted by NewLines Engineering claims to have no parking variance, there actually is a glaring deficiency in parking. 

They also need to provide "one or more cart corrals" for the shopping carts. It is unclear if they have provisions for a cart corral.

Either way, the application requires a major Use Variance which gives the Board major latitude to require the applicant to provide additional parking.

The site is located in the R-OP zone which does not permit grocery stores. The Board previously granted a Use Variance to permit for the existing store. The expansion of the store is an expansion of a nonconforming use and as such, requires a D(2) variance from the Zoning Board. Under the New Jersey Municipal Land Use Law (NJSA 40:55D-70), the Board can only grant this variance if the applicant can provide testimony from a Professional Planner that this meets the criteria of "in particular cases for special reasons". The Board certainly has a lot of latitude here and should certainly gain as much parking as possible before granting an approval.

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Anonymous said...

Its actually much worse than that. The initial granted variance (in 2011) approved an expansion of an existing 'convenience store' to the current 4725 SF. Convenience stores by ordinance definition are limited to 5000 SF. This application requests an additional 6068 SF of gross floor area taking it out of the 'convenience store' definition. As such, this application is prohibited in the ROP zone and would require a separate zoning board variance just for the expansion of the store to 'supermarket' use. The notification was deficient as it does not mention that at all.
But its much worse than even that. The parking requirements are completely bogus. According to 18-807Off-Street Parking, Loading and Circulation.
[Ord. No. 2006-16 § 1; Ord. No. 2010-62]
Business uses shall comply with the following standards
Retail trade or personal service establishments, other than in a shopping center of 100,000 square feet or more: one space for each 200 square feet of gross floor area.
As such, this application showing a total of 10,793 of GFA requires 54 parking spaces they are only showing 37!
New Lines is trying to pull a fast one here. They attempt to apply the warehouse parking (1 space to every 1000 sf ) requirements here. But that is bogus. This reduced requirement is only applicable in very limited circumstances- namely 'wholesale trade establishments' which this clearly is not.
Wholesale trade establishments: one space for each 300 square feet of sales floor or display area and one space for every 1,000 square feet devoted to the warehouse.'

Anonymous said...

Here is the Townships definition of a wholesale establishment.

An establishment with the set purpose of selling commodities or goods in large quantities typically for resale.

A neighbor with seichel said...

Aisle Nine (Appeal # 4244) has a chutzpah to try expanding their store and bring even more customers and cars into the tiny lot. It was originally supposed to be similar to a convenience store and that's all. But the traffic mess generated by that place is just too much.

The place is a constant sakanah due to the overwhelming number of vehicles constantly going in and out of that place with NO ROOM TO PARK. In fact, many customers are forced to park on the sidewalks, in neighboring private parking lots, or illegally on 10th St. Route 9 also gets constantly backed up from cars trying to get in there but get stuck because there's no room to navigate in the tiny lot. Their food truck deliveries are also beyond insane and cause everyone in the area big headaches.

Simply put, the place is in a constant state of vehicular chaos. It needs to get downsized instead of expanded by several thousand square feet! Let’s hope the Board members have the common sense to DENY this application

Anonymous said...

You are absolutely right! So why didnt you come out to object? Please come next time and speak up! " All it takes for tyranny to win, is for good people to be silent and say nothing"

Anonymous said...

But AK is involved, so it will get approved. You have to be NaĆÆve to believe that a prime piece of property was sold for $750,000.00.

Anonymous said...

Yup. The Yeshivah sold this for more than that and is putting tremendous pressure on Halberstam to push this through. He is compromised.