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Able Oil Company v. Zoning Board of Adjustment of the Town of Newton

A-1174-04T3 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; ACCESSORY USE —The fuel storage tanks of a distribution facility are the principal structures or uses because the facility can operate without related office and other buildings, all of which are accessory uses to the fuel tanks.

A property owner operated a fuel storage, sales, and distribution facility within a municipality’s general and commercial zoning district. The owner’s business was a permitted use for more than thirty years. The owner had an office/warehouse building, garage, equipment shed, loading racks, and ten underground storage tanks, all used in connection with the operation of its business. One day, an explosion destroyed the office and warehouse building, the equipment shed, and one of the loading racks. The underground tanks were not damaged, and the owner was able to resume fuel sale operations once electrical service was restored. After the explosion, the municipal zoning ordinance was revised to prohibit the maintenance of fuel storage and distribution facilities within the general and commercial zoning district. The owner applied for a permit to build a larger office and warehouse, which was denied. The municipal zoning officer also denied the owner’s application for a certificate of a legal pre-existing use. The zoning board found that the office and warehouse building was the principal structure that was essential to the operation of the fuel storage and distribution facility. It determined that, since the building was destroyed, the business could no longer operate and the non-conforming use was abandoned. The zoning board relied on its planner’s conclusion that the underground storage tanks were not principal uses, but only accessory uses of the property that were no longer operational due to the fire. The owner filed suit against the zoning board seeking a reversal of the denial of its application for a certificate of legal non-conforming use.

The lower court reversed the zoning board’s decision. It found that the principal use of the property as a fuel storage and distribution facility was a permitted use prior to the amendment to the zoning ordinance. It found that the principal use, as a fuel storage and distribution facility was not destroyed with the fire, and that the principal structures necessary for the operations of the business were the underground storage tanks and not the office/warehouse building. The lower court noted that the owner could continue its business without the office/warehouse building, as long as the underground tanks were still intact. The Appellate Division affirmed, agreeing that the underground tanks were principal structures as part of the overall fuel distribution complex and were not merely accessory uses. It found that the underground tanks were at least as important, if not more important, than the office/warehouse building for the operation of a fuel storage and distribution business. The Court also found that, so long as the municipality restored electricity, the underground tanks could operate and the business could continue even without the office/warehouse building. Therefore, the Court found that the owner’s business was a legal pre-existing use and the owner could rebuild the buildings provided that it received site plan approval.


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