Piscataway lawsuit opens new front in fights against warehouse sprawl

In challenge to zoning board, residents cite air pollution, height rules. Lawsuit is believed to be first in warehouse boom
Credit: (Edmund DelSol from Pixabay)
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Public concern over warehouse sprawl in New Jersey took a new turn as a dozen residents and two community groups in Piscataway, Middlesex County, sued the township’s zoning board, saying it had been “arbitrary and capricious” in approving a plan for almost 900,000 square feet of warehouse development.

The warehouse plan would add truck traffic and air pollution in an area that already gets low marks for air quality from the American Lung Association, they claim in their lawsuit. The extra pollution would add to the burdens of the local community, which is deemed an “environmental justice” community and some 75% of whose population are people of color.

The lawsuit argues that the zoning board was wrong to approve development of a 25-acre site zoned as “rural/residential,” and said that fumes from 60 truck bays would hurt children and staff at an adjoining elementary school.

The suit is believed to be the first example of a community legal challenge to a surge in warehouse construction in New Jersey spurred by a scramble for space by developers responding to a huge increase in demand for goods ordered online.

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It follows a bill recently introduced in the Legislature that seeks to curb warehouse sprawl by requiring towns to seek approval from neighboring municipalities before issuing permits for warehouse developments. Disputes would be resolved by county or state planning boards.

Fears for already scarce open space

And the suit reflects concerns that the current proliferation of warehouses, with the expectation of more to come, is eating into already scarce open space in America’s most densely populated state and industrializing its remaining rural corners.

In the first quarter of 2021, the total area of leased warehouse space in northern and central New Jersey grew by 11.1 million square feet from a year earlier, the biggest quarterly gain in 20 years, according to a survey by Newmark, a commercial real estate firm.

In the lawsuit, filed last month, the plaintiffs argue that the Piscataway Township Zoning Board of Adjustment failed to justify a variance to the existing zoning, and failed to demonstrate that the variance can be issued without detriment to the public good.

The plaintiffs say the board approved the plan even though the warehouses would be almost 50 feet tall, some 15 feet higher than the height limit under existing zoning regulations. And it says the new buildings would cover almost 37% of the site, well in excess of the 20% allowed under current regulations.

The suit asks the Superior Court to declare the board’s approval null and void, and to deny the warehouse application by the developer, M&M Realty.

Two warehouses totaling about 360,000 square feet would be built on the site, in place of existing single-family residences, now vacant, that would be demolished, according to the application. The remainder of the site would provide parking for 363 cars and 60 trucks.

Impact on air quality, children’s health

“We strongly believe that the developer failed to provide, and the board failed to consider, a comprehensive list of pros and cons,” said Kamuela Tillman, one of the plaintiffs. “The board did not take the impact on our air quality or our children’s health into consideration at all.”

The warehouses would be built next to the Randolphville Elementary School, which houses some 500 students from kindergarten through third grade, plus 50 teachers and staff, the plaintiffs said in a statement. They said Piscataway is designated as an overburdened community by New Jersey’s new environmental justice law, and already has an F rating for air quality from the American Lung Association.

Syed Shoaib, another plaintiff, accused local officials of ignoring the need for environmental justice, as identified by the state’s new law on the issue. “NJ is moving towards protecting communities, like Piscataway, that have been harmed by environmental racism. Our local officials should be protecting the environment and addressing climate change, not building warehouses near schools,” he said.

The two community groups that joined the plaintiff list are the Piscataway Progressive Democratic Organization and the Piscataway Youth Progressive Organization.

A statewide list of overburdened communities compiled by the Department of Environmental Protection, as required by the environmental justice law, identifies 30 in Piscataway Township with up to 55% of the population classified as low-income.

The law defines an overburdened community as one where at least 35% of households qualify as low-income; at least 40% identify as a minority or as members of a tribe, and at least 40% have limited English proficiency.

Open letter to zoning board

The parcel adjoins a residential area and has access to highways only via residential streets, the residents said in an earlier open letter to the zoning board. They argued that the site provides an air-quality “buffer” for other recent warehouse developments in Piscataway.

Jim Kinneally, an attorney for the zoning board, said the board had good reasons for allowing a variance that would permit the warehouses to be built.

“The applicant provided significant expert testimony to justify the relief that they sought,” he said, referring to the variance. “I believe that the board’s decision is based on sound legal ground, and I think it’s likely to be upheld by the court.”

A representative for M&M Realty said it is company policy not to comment on pending legal matters.

Micah Rasmussen, a Rider University professor who earlier this year led a successful community campaign against a planned warehouse in Upper Freehold Township, Monmouth County,  said it’s unfortunate that communities must take legal action in an attempt to curb warehouse development. He predicted that the Piscataway plaintiffs will have a “solid shot” at winning their case, since courts tend to favor established zoning laws.

Rasmussen said warehouse applications should be subject to regional or statewide planning so that permission to build them would be subject to an overall strategy rather than to local planning boards that may be attracted to the extra taxation dollars that the developments bring — with little regard for the impact on neighboring communities, which may not want nearby warehouse development.

“If being careful and deliberate about our state’s remaining undeveloped land is a statewide policy goal, then local planning and zoning boards ought to be able to make decisions on the basis of whether an application supports it or not,” he said.

But Jim Gilbert, a former head of the New Jersey State Planning Commission, predicted that the plaintiffs “have their work cut out” because of a “mish-mosh” of uncoordinated land-use policy in New Jersey. He estimated that some 70% of development is determined by boards of adjustment, which he said often look for ways of undoing local master plans that were put in place by planning boards.

“Good luck to the objectors in Piscataway,” Gilbert said. “The prospects are not good.”

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