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Arthur’s Self Service, Inc. v. Township of North Brunswick Zoning Board of Adjustment

A-3804-03T2 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; USE VARIANCES—It is not a zoning board’s obligation to point out to an applicant seeking an amended site plan approval that it must satisfy the criteria for a use variance if the site plan request actually encompasses a change in use.

In 2000, a landowner was granted approval for a use variance permitting a car wash on its property. In 2002, the owner sought approval of an amended site plan that included a quick lube facility. At public hearings before the local zoning board of adjustment, the owner’s architect testified that virtually all new car wash facilities had quick lube components to make the facilities financially viable. He testified that the oil tanks would be above ground and would meet governmental requirements. The difference between the original approval and the amended plan was that the original approval was for a rectangular building with four self-service bays and two automatic car washes, while the amended plan proposed a square building, placed closer to the adjacent highway. It required a front yard setback variance. There was no need for parking because customers would not have to leave their cars for either the car wash or the quick lube. A traffic engineer testified that although traffic would increase, the lube facility would not generate significant traffic. However, the public expressed great concern over increased traffic and the board denied the application. One board member concluded that the applicant never intended to build pursuant to its original approved application and that the applicant was “pulling” a “bait and switch.”

On appeal, the Law Division affirmed the board’s decision. It held that bulk variances applicable to an application for a “(c)” variance are subsumed into the “(d)” variance so that when a board makes its decision, it has to evaluate the impact of the proposed uses against the negative criteria set forth under both sections “(c)” and “(d)” of N.J.S.A 40:55D-70. It found very little testimony from the applicant on the appropriateness of the non-conforming car wash use and the accessory quick lube use because the applicant approached the application from a point of view of it being an amended site plan as opposed to a change in the use. The court found that the application was in fact a change of the use, and thus the application should have been for a modification or amendment to the approval for the “(d)” variance or a new application for a variance under subsection “(d).”

On appeal from the Law Division, the applicant argued that the only legal issue was whether the front yard setback variance was properly denied in accordance with the Municipal Land Use Law (MLUL). The Appellate Division disagreed, pointing out that in addition to requesting the front yard setback variance, the applicant also requested approval of an amended site plan. In that site plan, in addition to the changes to the size, setback, and shape of the building, there were changes to the business use, landscaping, and customer ingress and egress from the property. The board referred to the use changes and the traffic flow on the site plan as its reason for rejecting the application. Because the amended site plan was submitted after a grant of a use variance in 2000, the applicant had to satisfy the negative criteria for a “(d)” variance. Thus, the applicant was required to show that the approval could be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance.
The Court also pointed out that although the applicant presented testimony from a landscape architect regarding the improved landscaping on the property in connection with the proposed, reduced setback, a reduction in the setback was requested due to the change in the use and site plan, and not to improve the lot’s appearance. The applicant needed the setback to provide traffic circulation for both the tunnel car wash and for the quick lube facility. The stacking of vehicles and its potential for overflow onto the street where vehicles entered was of particular concern to the board. Thus, the Court concluded that the applicant failed to prove that the amended site plan could be granted without substantial detriment to the public good or without substantial impairment of the intent and purpose of the zone plan and zoning ordinance.

The applicant also asserted that the doctrine of estoppel prohibited the board from requiring it to offer proofs in support of an amended use variance. The Appellate Division held that the zoning board was not required to tell this applicant that its site plan amendment was subject to the same negative criteria as a “(d)” variance. Furthermore, the applicant failed to show that it relied, to its detriment, on this omission by the board. While the board never specifically stated that it was evaluating the amended site plan as a use variance, the applicant was given ample opportunity to present evidence supporting the plan and was given the opportunity to respond to the board’s and the public’s concerns regarding the perceived detriment. The applicant also failed to show what different evidence it would have presented had the board discussed its site plan amendment in terms of being a use variance. Regardless, the Court stated that the applicant should have known that the board would have been evaluating the application by applying the negative criteria of a “(d)” variance.

The Court also found that the applicant was well aware that it was requesting approval of both a bulk variance and an amended site plan subsequent to the use variance that the board granted in 2000. The subsequent site plan was required to meet the negative criteria of a “(d)” variance. Thus, regardless of how the lower court interpreted the MLUL in finding that “(c)” variances are subsumed in “(d)” variances, the applicant was required to show that approval of its plan would not cause a substantial detriment to the public good.

Finally, the Court concluded that a quick lube facility was not a permitted accessory that would have allowed the applicant to construct it without a variance. Accessory uses, which are either not permitted by ordinance or which are accessory to a nonconforming principal use can only be allowed by way of a variance under N.J.S.A. 40:55D-70(d)(1). Here, even if the quick lube operation was treated as an accessory use to a nonconforming car wash, the application was still subject to the negative criteria under a “(d)” variance, which the applicant failed to satisfy. Therefore, the Court affirmed the lower court’s decision that affirmed the board’s denial of the amended site plan application.


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