The Ocean Signal | April 26th - May 10th, 2013
South Toms River Wawa Application Faces Clashing Support and Opposition by Erik Weber SOUTH TOMS RIVER The application to construct a Wawa food and fuel dispensing retail location on Dover Road, here, was again heard in an April 16th land use board meeting at the special location of the South Toms River Elementary School cafeteria as a previous February meeting was canceled when too many members of the public filled borough hall and violated its fire code. As with that earlier meeting, the hearing took on the air of a court proceeding, with Edward J. Liston, Jr., an attorney based on Hooper Avenue in Toms River representing Sunil “Sonny” Dhir, and Steven Nehmad, representing Wawa Inc. from the Egg Harbor Township, Atlantic County-based legal firm of Nehmad, Perillo and Davis, verbally sparring through numerous points of the hearing. Mr. Dhir is the owner of the nearby 7-11 convenience store as well as a gas dispensing franchise located directly across from the proposed Wawa site on Dover Road, now a barren, partly-wooded tract between Chamberlain Street and Railroad Avenue formerly used by the Clayton Block Company. Wawa, Inc. is seeking a use variance and major site plan approval that would bring a new 5,051 square foot combination retail food and 8-pump, 16-dispenser fuel service operation there. The variance was requested as the land is located in both the Highway Development (HD) and single family residential zoning districts under the current borough ordinance. An additional minor bulk variance was also requested. Mr. Dhir had twice sued the corporation in 2011 for allegedly filing an incorrect request with the Pinelands Commission for a certificate of completeness to allow it to move forward to an application hearing with the borough land use board and for allegedly filing an incorrect notice to surrounding property owners. The lawsuits were withdrawn in March 2012. Mr. Nehmad stated that it was the first time in his 37year career of practicing land use law that a client of his was ever sued before an application was even brought before a land use board. At the previous meeting, Mr. Nehmad had stated that as the site was located west of the Garden State Parkway it was in the boundaries of the protected pinelands region that permitted the use of the site for their proposal as at the time of the application’s filing the borough ordinances were not certified by the commission. According to the Comprehensive Management Plan of the Pinelands Commission, as authorized by the 1979 Pinelands Protection Act and federal National Parks and Recreation Act of 1978, “local governments will be primarily responsible for implementing the Plan. to attain that degree of local involvement and responsibility, the Act set forth a procedure under which county and municipal master plans and land use ordinances are made consistent with the Plan. While some of the Plan’s provisions are mandatory, such as the den-
sity limitations and the requirement that growth areas accept development credits, many other aspects are intended to give municipalities resource management goals to work toward as they revise their land use regulations... if a municipality does not revise its plan and ordinances as required by the Pinelands Protection Act, the Commission is required by law to enforce the Plan’s minimum standards verbatim.” In the past several months, borough officials have been quick to have their ordinances certified by the commission and are now having their zoning map adjusted to meet certification requirements. At the start of the meeting, Chairwoman Carla Kearney announced that regardless the progress made on the application’s hearing, the meeting, which started at 7 pm, would end at 10 pm, with the hearing being carried to the next meeting beginning at 9:45 pm to allow for the board to conduct regular business. By 7 pm, most of the cafeteria tables and benches were filled with interested residents and general members of the public, and approximately one dozen of those present wore black t-shirts with “I (heart) Wawa” on the front. Patrolman John Wissel also spoke prior to the meeting’s official start, warning those present to watch their conduct during the meeting. During the February meeting, numerous individuals shouted over or through the proceedings, often in opposition of anything Mr. Nehmad had stated. “I don’t care how upset or mad you get if things don’t go your way,” he said. “It doesn’t matter – nothing happens here on this property.” From the moment the hearing opened, Mr. Liston and Mr. Nehmad argued over various objections, requests and legal references over the meeting notice, variance requests and more by Mr. Liston to the point that Michael Elward, attorney for the board, had to state that the procedure of the hearing would be that Mr. Nehmad would present the application, including calling the various professionals for statements on the site plan, after which time Mr. Liston would be able to respond to those same professionals, and finally the public would be able to comment. Afterward, Mr. Liston would be permitted to present his argument on behalf of Mr. Dhir against the application, including calling his own professionals to speak on the same, to which Mr. Nehmad would be able to respond in full, and then the public. By the time the meeting was called and the application carried to the next meeting at 9:45 pm, Mr. Nehmad had not completed his initial presentation of the application, and numerous officials and residents present openly derided the likelihood that the hearing would drag on until the end of the year. The South Toms River Land Use Board meets once per month.
“A Responsible Corporate Citizen”
Mr. Nehmad began his statements by first calling Wawa a “responsible corporate citizen” of over 30 years who wanted to develop the
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approximately three acre portion of a 20 acre site as a “single use [for] the sale of convenience-related items food and fuel.” He added that the combined food and fuel dispensing use first appeared in New Jersey in 1996 and that today “there are just over 100 sites in New Jersey that Wawa owns and operates.” The lawyer continued that if approved, Wawa would “invest approximately $6 million into this endeavor in the community” and that the proposed site plan was “consistent with the most recently adopted master plan that this land use board adopted” in 2012, even though it is not currently certified by the Pinelands Commission. Mr. Nehmad also addressed Mr. Dhir’s opposition to the Wawa application, stating that he “is a business competitor of ours who operates a gas station across the street and also the 7-11 that he owns and operates.” He then referred to a lawsuit between the Shop-Rite and Mayfair supermarket chains that he said stated “whenever a business competitor funds opposition in a land use case, you as a board can take into consideration the fact that the competitor is funding the opposition in assessing the credibility of witnesses you hear.” Mr. Nehmad then referenced the New Jersey Antitrust Act, which he said “reflects the strong public policy of showing that competition is good for the public because competition is good for the consumer.” He also stated that the argument that the Wawa was proposing multiple uses on the same site was incorrect, as the food and fuel were convenience items would be provided by the same corporate entity and not two separate businesses. Mr. Liston teased Mr. Nehmad about how many times he had called Wawa a “responsible corporate citizen” and asked that the board not be fooled by the Pineland Commission’s certificate of completeness as a stamp of approval as “all it says is you can go forward here in South Toms River” with the hearing. “Second thing - counsel is trying to run my client down by saying he is a competitor and doesn’t have the right of free speech here in the United States,” he continued. “That’s just wrong - yes he’s a competitor as are other people in the room whose business will face extinction if Wawa is approved. go out to Manchester Township and see what the Wawa gas station did to the Exxon on Route 70.” “You know they can’t consider anything like that,” protested Mr. Elward. “I understand that, but on the other hand everyone has the right to be heard and the right to protect their own economic interest,” replied Mr. Liston, who added that his client was only trying to do the same “where in our view, Wawa is trying to put every other small merchant in this town out of business.”
The Architect
Mark Whitaker, PE, a principal in the Lake Como firm Dynamic Engineering Consultants, was the first professional called to testify on behalf of the application and
had provided its design. With 20 years of experience in both environmental engineering and real estate development fields, Mr. Whitaker was involved in the investigation and remediation of contaminated properties from 1993 to 2002. For the past 11 years, he has been responsible for the design of and land use approvals for commercial, retail and residential development properties in the northeast, including various site plan designs for Wawa, Inc., including several in Toms River, Brick and Stafford townships. Other local sites designed by Mr. Whitaker within the protected pinelands zone include a business park in Stafford Township, BMW car dealership in Egg Harbor Township and a Wawa in Hammonton. Mr. Whitaker described various attributes of the site, surrounding area and structure as previously stated above and further stated that the pumps and nozzles present at the fuel dispensers were not large enough to handle tractor trailers, and that if constructed all employees were instructed to deny service to such large vehicles as to avoid causing traffic hazards on site and off. The primary access driveway would be located in the center of the site between the convenience store and fueling canopy, which is also the center point between Chamberlain Street and Railroad Avenue. Further road improvements would be made to Dover Road that are conditionally approved by Ocean County officials, including the establishment of a twoway left turn lane to service both the Wawa and all commercial properties across the street as a way to reduce traffic hazards. Two other vehicle access points were also proposed on the site on Chamberlain Street and Railroad Avenue. There would be 42 parking spaces on the site that meet the borough’s required 10’ by 20’ requirement, and a variance was requested on seven spots that are one foot short, at 10’ by 19,’ in order to facilitate a wider aisle for vehicles on a portion of the site. Mr. Whitaker pointed out that under borough code, only 26 parking spots were required for the size of the convenience store proposed, but that the applicant was providing nearly double that amount, and that even the seven 10’ by 19’ size were larger than the industry standard 9’ by 18.’ The site also would comply with borough and pinelands storm water management guidelines and offer sufficient and proper drainage throughout the developed portion of the property. Fifteen light-emitting diode ( LED) light fixtures would be placed 20.5 feet high in a low profile to allow the full cutoff of evenly distributed light and reduce light pollution. Twelve wallpacks applied to the convenience store would also provide illumination to the site, as would 24 recessed fixtures beneath the canopy. A mixture of oaks, evergreens, shrubs and various other ornamental grasses would be planted around the site “to create visual interest” that would also be irrigated, and a sidewalk along the site would also be constructed to promote pedestrian access through the area. Another variance was requested by the applicant to provide a larger freestanding sign than is currently allowed by borough ordinance that Mr. Whitaker said would provide motorists a better ease of seeing the fueling prices
down the roadway, which is required by law. He added that signage at commercial properties across and up and down Dover Road were regularly much larger than the borough ordinance allowed.
The Traffic Engineer
Nicholas Verderese, a principal in the Lake Comobased Dynamic Traffic, LLC, was the second professional called to testify on behalf of the applicant, as he had provided the traffic study portion of the plan. A traffic engineer and transportation planner, his experience goes back nearly 23 years and includes positions as a highway/structural project engineer, civil/structural project engineer and a principal in traffic engineering and transportation planning for much of that time. He stated that he had appeared before approximately half the municipalities in Ocean County on prior applications, including one in South Toms River, for The Learning Experience on Double Trouble Road several years ago. Mr. Verderese also said that he had appeared for a different Wawa application four times in the past year to two years but had completed traffic studies and other work for approximately 50 sites for the corporation. Upon studying the traffic along Dover Road, Railroad Avenue and Chamberlain Street - including existing roadway traffic, speed limits, right of ways, striping, signalization and more - in March and April 2011, he learned that they reached their general commuter peak times between 7 and 9 am and 4 and 6 pm, with peak hours existing from 7:30 to 8:30 am and 4 to 5 pm. Upon meeting with county engineers, Mr. Verderese stated the proposal for a twoway left turn lane was first brought up at their request to reduce a possible traffic hazard with the increased access points into the Wawa site. After studying existing traffic, projections were then made to determine what increase in traffic could be expected with the convenience store and fueling dispensers by using a nationallyaccepted standard land use designation that relates to
expected traffic increase for convenience stores with fuel pumps. His study estimated that in a one non-peak hour period, 110 vehicles would come on and off the property, while at morning and evening peak hours, that number would increase to 150. Mr. Verderese stated that the study also allowed for an estimate of “pass-by trips,” or stops into the site where a vehicle was already traveling to or from a destination regardless the convenience store and fueling station’s existence. That amount, he said, was that approximately 60 percent of traffic would already be on the roadway traveling to and from another destination, and therefore only 40 or 50 new vehicles would be found on the roadway per hour on off- and on-peak travel hours, or approximately one per every minute. “If you sat there, you probably wouldn’t even notice the new traffic in the area,” he said, adding that his study showed the increase in traffic would be minimal on Chamberlain and Railroad Avenue - approximately five percent - as neither of those roadways act as through streets for regular traffic flow. As a result, he said he did not find a need for any additional signalizing of nearby intersections, such as Chamberlain Street at Dover Road, which currently utilizes a stop sign. On-site traffic was also designed with wider aisles than industry standards 30 feet to the industry’s 24 feet - according to Mr. Verderese, who said that as a result fueling trucks would be able to flow in and out of the site easier to service the gas pumps and if an emergency were to occur, firetrucks would also be able to easily flow throughout the entire site to response to the incident. Following the statements made by Mr. Verderese on the application, the hearing was closed and carried to May’s land use board hearing, tentatively scheduled on May 21st at 7 pm in the elementary school cafeteria if borough officials are able to obtain permission for its use, which was not yet clear at the time of this publication.
Long Drive resident William Gleason looked over a photocopied site plan of the proposed Wawa on Dover Road during the April 16th land use board meeting. Erik Weber / Ocean Signal
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