After getting rebuffed by Lakewood Township's Zoning Board back in July, Aisle Nine on Route 9 and 10th Street is planning to return next Monday, November 14th to the Zoning Board for yet another attempt to gain a favorable approval to permit them to expand - but with a scaled down and more transparent application and an additional off-street truck unloading spot.

As previously reported here on FAA News, back in July, Aisle Nine presented an application to the Zoning Board to expand by building a new 3-story building on the former Cheder School lot adjacent to their existing building, to make room for additional retail space on the first floor, and warehouse storage space, food preparation rooms and offices on the second and third floor, and to expand and clean up the parking lot by demolishing the existing gas station and reconfiguring the existing parking lot to fit an additional 10 parking spaces, for a total of 37 parking spaces. These parking spaces include 6 spaces right in front of the store, where there are always pallets blocking anyone from parking there. Additionally, their proposed building expansion would include a single off-road delivery truck loading area which would be accessible from 10th Street.

According to public records obtained by FAA News, Aisle Nine purchased the former Cheder School lot from Beth Medrash Govoha for $750,000. The trailers and refuse on that site would be removed to make way for the Aisle Nine expansion.

As noted in our first report, the legal notice for the application was deficient as it incorrectly indicated that the subject property was located in the R-20 zone when it is actually located in the R-OP zone.

We also noted that the proposed office space was not included in their legal notice, nor was parking proposed for the office space. The architectural plans submitted showed 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 should need to provide 5.5 (6) parking spaces for these offices.

As the office use was not included in the legal notice, we noted that appeared to be a violation of the New Jersey Municipal Land Use Law (40:55D-11) which requires legal notices to state "the nature of the matters to be considered". We also noted that the New Jersey Appellate Division, under Perlmart v. Lacey Tp. Planning Bd, has clarified 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", and that "proper notice is a jurisdictional prerequisite, and a failure to so provide is fatal to the Board's approval", and the Appellate Division tossed out the Board approval, saying that 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 even consider the application.

We also noted that new off-road loading spot, which would be extolled to the Board by the applicant's professionals saying that it will eliminate the existing condition of the trucks congesting this narrow road while unloading, is accessible only from 10th Street which is a narrow, 30 feet wide road. 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 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.

Finally, the Township ordinance requires provisions for "one or more cart corrals" for the shopping carts. It is unclear if they have provisions for a cart corral.

At the Board hearing in July, the Board halted the plans, demanding more transparency in the architectural plans and additional parking.

Board members pointed out that there is still a lot of "unmarked space" in the architectural plans. Noting that Aisle Nine has somehow expanded from the "convenience store" the Board originally approved, board members inquired how can we trust that the "food prep areas" (for which they are only providing minimal amount of parking) won't be converted to additional retail space which will fit many more people.

Board member Moish Ingber also noted that many offices could be built in the "unmarked areas" and they are not providing any parking for offices.

Board Member Moish Lankry, noted that as a proprietor of food establishment, he knows that food preparation areas are different from standard "industrial warehouses" as they often have a lot more employees at once and therefore, sufficient parking must be provided for them as well. Mr. Lankry commented "your plan will triple the size of the existing store, you need to triple the parking spaces as well".

The proposed building addition will include an off-road truck loading spot which will be accessed from 10th Street. Board members expressed concerns with the amount of delivery trucks already blocking multiple driveways on the block, saying that the proposed single delivery spot is insufficient. They also noted that the proposed delivery spot will be accessed only from 10th Street which is only 30 feet wide, and this will not suffice for a large truck to k-turn into the proposed loading spot.

When the Board opened the meeting to public participation, David Helmreich, who is also a member of the Planning Board, strongly objected to the application.

Mr. Helmreich noted (as FAA News previously noted) that the legal notice is deficient because it lists the wrong zone. He also noted that the notice should be deficient because it doesn't accurately describe the proposal as a major expansion of a supermarket (the notice simply says "commercial building").

Mr. Helmreich also stated that the "sufficient" parking plan is actually grossly not sufficient, as the Township ordinance (18-807) delineates that in a "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", and the reduced requirement of "1 space per 1,000 sq feet for warehouse space" only applies to "wholesale trade establishments" which this is not.

Mr. Helmreich urged the Board to table the application and direct the developers to completely redesign the application and provide accurate notice to the neighbors and public.

Engineer Brian Flannery attempted to tell the Board that there are "benefits" to this application as the existing building is only 2 stories and the additional building will be 3 stories and this will "fit better into the neighborhood" as it is "a high building just like BMG"!

Board Member Moish Lankry summed it all up, saying "there is nothing beneficial in this application. If we approve this as submitted, the situation will get much worse than it is now." He added "you have a successful store, but you need to provide sufficient parking."

Since then, the Aisle Nine expansion team has been hard at work revising their plans. Their new legal notice is also faulty as it also contains the inaccurate R-20 zoning district, and it also does not include the office use. However, the good news is that they are downsizing to a 2-story building, as well as adding an additional off-street truck unloading spot, and their new architectural floor plans are slightly more transparent.

The new plans indicate that their existing 2 story building has a first floor area of 4,725 square feet of retail space and they are proposing an expansion of 1,806 square feet for a total of 6,531 square feet of retail space. The second floor currently contains offices, floor food storage and preparation area of 4,725 square feet and this is proposed to remain. Additionally, they are proposing a two story warehouse of 4,240 square feet.

After the demolition of the gas station and the re-configuration of the parking lot, including rehabilitating the narrow parking spaces in front of the store which are now covered up by racks, they are proposing 37 parking spaces.

According to a parking narrative submitted by Engineer Glen Lines of NewLines Engineering, they meet the Township's parking requirements for retail space which requires 1 space per 200 sq feet and their first floor will have a total of 6,531 sq feet of retail space (which requires 33 parking spaces), and they meet the Township's parking requirements for the warehouse space which requires 1 space per 1,000 sq feet of warehouse space and they have 4,240 sq feet of warehouse space (which requires 4 parking spaces).

Mr. Lines claims in his letter that the second floor office, floor food storage and preparation area of 4,725 square feet "has no parking requirement
as it is an ancillary use to the food store. The employees who will occupy this spaces are included in the requirement for the retail space. This is similar to the UDO requirement for a restaurant that requires one space for every 50 square feet of patron use, but no parking for the kitchen or wait staff".

This is quite an interesting argument as the Township Ordinance (18-807B) states:

"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."

The ordinance clearly states "gross floor area", and the Township's Definition of Terms ordinance (18-200) defines floor area as "the sum of the gross horizontal areas of the several floors of the building, measured from the exterior faces of exterior walls or from the center line of walls separating two buildings", i.e. the sum of the gross horizontal areas of the several floors of the building are clearly included in the Gross Floor Area and should therefore require parking as well.

Additionally, while Mr. Lines claims that the offices, food storage and prep area is an accessory use and does not require parking, he acknowledges that the warehouse space does require parking.

This acknowledgement further makes no sense as the Retail Shopping Center ordinance does not specify a parking requirement for warehouse space, and the only requirement for parking for warehouse space is in the wholesale trade establishments ordinance which requires 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.

Therefore, Mr. Lines' dueling calculations just don't seem to work hand in hand.

[The good news is that at least this does clarify why the office use is not listed in their legal notice - because they are considering it to be an accessory use. However, this is troubling for 2 reasons:
1) The Township ordinance does not permit offices as a permitted accessory use to a retail shopping center.
2) The Appellate Division in Pond Run Watershed Association vs Hamilton Zoning Board, discussed a case where there was a planned restaurant serving alcohol and that was never published in the notice.
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. As Aisle Nine did not include the proposed offices in their legal notice, neighbors don't see a heightened concern for which they should run to oppose the application and therefore the notice failed to meet its intended purpose, mooting the validity of the notice.]

Other than that, here's what else you need to know about this application:

Their is currently one driveway on Tenth Street and two driveways on Madison Avenue. The applicant proposes to remove one of the driveways on Madison Avenue and reconfigure the remaining driveways to be more consistent with appropriate standards.

NJDOT approval of the reconfiguration of the Madison Avenue access will be required. Board Engineer Terry Vogt wrote to Aisle Nine's professionals that they should be prepared to offer testimony regarding the onsite circulation and local traffic impacts, if any, and information regarding whether the increase in traffic rises to the level of a significant increase per County and NJDOT standards.

A detailed lighting design has been provided which appears to propose three pole mounted lights and one building mounted light.

No landscaping appears to be proposed. Landscaping, including in accordance with the Township's buffer requirements must either be provided to the satisfaction of the board, or they just seek a waiver.

As with the previous design concept, the six parking spaces which are in front of the story are 9’x16.25’ in area which is undersized per the Township's requirement of 9’x18’ size parking spaces. Therefore, they require a design waiver.

The application also seeks a front setback variance of 9.07 feet where 25 feet is required, a side yard setback variance of 5.22 feet proposed where 12 feet required, a rear yard setback variance of .21 feet where 15 feet is required, a building coverage variance of 35.97% where 25% is the maximum permitted, and a height variance of 44 feet where 35 feet is permitted.

All of the setback variances are typical bulk variances. However, the height variance which exceeds 10% of the permitted height requires a Use Variance.

Other than the Use Variance for the height, the legal notice illegibly and ambiguously states "The applicant is also seeking a use variance to operating the existing grocery store and the existing gas station is proposed to be removed." It is unclear what exactly the Use Variance application is for. Either way, it appears that a Use Variance is required for changing the original convenience store into a retail shopping center, as well as to use the new (former Cheder lot) for retail shopping center use.

The subject properties of the existing store and the proposed expansion are both located in the R-OP zone, which does not permit convenience stores or retail shopping centers.

At one point, the Aisle Nine property contained a car wash, and subsequently it contained a gas station and a small 1,635 square feet convenient store.

In order to enable a quiet expansion of this convenient store, the Township Committee amended their ordinance (18-1008 Service Stations and Public Garages) to include that "for all existing service stations and in all zones where service stations are permitted, a service station may have at the same location a fast-food convenience store as duel use."

Coincidentally, the Township ordinance does not directly define "fast-food convenience store", however, the Ordinance does define "fast food operations" as "a business establishment where food and drink are sold ready for consumption and where customers consume the food and drink either inside or outside the confines of the establishment", and the Ordinance does define"convenience store" as "a retail establishment typically offering for sale prepackaged food products, household items and other goods commonly associated with the same and having a gross floor area of less than 5,000 square feet."

Subsequently in July 2011, under Appeal # 3774, Madison Ave. Holdings LLC, seeked Board approval for a 3,575 square foot addition to the building. Board member Moshe Lankry stated he had a conflict and stepped down from hearing the application.

The application was represented by Attorney Ray Shea, Bob Burdick, professional engineer, and Brian Flannery, professional planner.

Mr. Flannery testified that due to the Committee's amended ordinance, despite the fact that gas stations were not permitted in this zone, because there was a gas station on this site they were now permitted to expand their convenient store as a duel use even without seeking a use variance. [This appears to be inaccurate because, already at that point, the total site of the expanded store would be bigger than 5,000 sq feet so it should have no longer qualified as a convenience store and should have already required a Use Variance to change into a Retail Shopping Center.]

The applicant's professionals testified that the additional store space is not intended to drive in any additional customers, rather they need the additional space so they could prep food upstairs and bring it downstairs for a "quick sale", noting that they expect it to be a "a grab and go, 4 or 5 minute transaction place", and that because the site is in the "downtown regional center, which [the Township defines as a] pedestrian friendly service" and its adjacent to Beth Medrash Govoha, they anticipate that "the predominant use of the convenience store will be the walk-ins from the adjoining campus students", and therefore there will be 4 parking spaces which will be restricted for employees only and "13 additional parking spaces".

Board member Avraham Naftali retorted that "this is a very large structure" and he was concerned about the number parking spaces and therefore asked for either more parking or to make the building smaller. Mr. Flannery responded that in order to increase parking they would need to eliminate a driveway and "DOT would be reluctant to allow them to eliminate a driveway."

Board members Judah Ribiat and Elliot Zaks expressed concern regarding the safety issue of pedestrians walking across the parking lot.

In response the applicant's professionals agreed to install curb and a sidewalk in front of the building, striping on the northerly side and the building in front of the parking lot as a walkway, enhance the landscaping on the northerly side of the site, and to install bollards so no shopping carts get into the gas station area.

Mr. Zaks asked where deliveries will take place. Mr. Burnick responded "along the north side of the building" (hmm... these days they actually take place on the street...)

Hearing all this testimony, board members stated that they believed, as was represented to them that this will "not be that much of an expansion because the people are there already and this will make it more convenient", and that "most of the customers will be walk-ins".

With the proposed expansion, however, Aisle Nine is certainly changing from a convenience store to a retail shopping center, which is a new use not permitted in this zone, and therefore, they require a Use Variance to change the store to the new use. Even if they would somehow claim that they are still a "convenience store", by demolishing the gas station they can no longer rely on their special ordinance which permits convenience stores in gas stations. Therefore, they would require a Use Variance to be able to maintain their convenience store even without having the gas station. They also require a Use Variance to permit the Retail Shopping Center use on the new lot.

Under the New Jersey Municipal Land Use Law, the Zoning Board may only grant a Use Variance in cases where the applicant testified why his application is a "particular case for special reasons". [Read more about the differences between a Planning Board variance and a Zoning Board variance here].

At the very, very least, Use Variance applications such as these, especially in such a parking-congested area, ought to not be bashful in providing the legitimately proper number of parking spaces, and certainly not to be looking for all sorts of loop holes as NewLines Engineering's Glen Lines is doing with this application.

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