Skip to main content

7-Eleven, Inc. v. Planning Board of the Borough of Elmwood Park

A-5809-05T3 and A-5918-05T3 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; VARIANCES — Where a land use board unreasonably bases its decision on non-expert testimony about problems encountered at another of the applicant’s locations in the municipality, such a denial is arbitrary, capricious and unreasonable.

A convenience food store franchisor wished to buy land in order to construct a store. The site was located in a commercial zone that permitted this use. The franchisor sought approval to demolish an existing gas station and to construct and operate a convenience food store. The application also sought approval of required on-site parking, a designated loading area for delivery vehicles and access driveways and aisles, all of which complied with the requirements of the local ordinance. However, the planning board denied the franchisor’s application for site plan approval to build its store. The board based its denial on problems that the municipality found at another of the franchisor’s stores in the municipality, and not on any deficiencies on the franchisor’s site plan application.

The franchisor sued to reverse the municipality’s denial of its application for preliminary and final site plan approval. The lower court affirmed the planning board’s decision holding that the record contained adequate evidence that the planning board acted reasonably in denying the application.

The Appellate Division reversed and directed the planning board to grant site plan approval because the application complied with the local ordinance which did not have specific requirements for parking and access to the property. It also found that the planning board’s decision was unreasonably based on non-expert testimony about problems encountered at another of the franchisor’s location. Therefore, the Appellate Division held that the planning board’s denial was arbitrary, capricious and unreasonable.

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •