Skip to main content



Atlantic Container, Inc. v. Township of Eagleswood Planning Board

321 N.J. Super. 261, 728 A.2d 849 (App. Div. 1999)

ZONING; SIMILAR USES—A court must apply a zoning ordinance to the proposed use and not just decide if the proposed use is generally compatible with what the court perceives to be the general intent of the drafters of the ordinance.

A materials recovery company sought an interpretation of a zoning ordinance from the municipality’s planning board to avoid having to obtain a use variance for its proposed facility. The board deemed the company’s facilities to be dissimilar and inconsistent with any of the listed uses in the ordinances relating to the limited manufacturing zone in which the facility was located. The applicant then obtained a ruling from the Law Division which effectively reversed the planning board and interpreted the municipal ordinance to allow the proposed facility without the necessity of a use variance. On appeal, the planning board argued that the Law Division judge erred in applying an overboard definition to the word “similar” in its interpretation of the municipality’s zoning ordinance.

The Appellate Division disagreed with the lower court judge and implicitly criticized the manner in which the judge reached his decision. Fundamentally, it was upset that the lower court did not refer to any permitted use that was similar and not inconsistent with the proposed materials recovery facility. The lower court relied on a ruling by the planning board’s attorney that not all reclaiming-type plants were prohibited. The Appellate Division believed that whether or not the attorney’s interpretation was correct, the Law Division judge was still required to apply the ordinance, as written, to the use presented. According to the Appellate Division, the most that the lower court judge could say was that: “it appears that the proposed reclamation use is similar to and not inconsistent with the uses permitted in the zone.” The lower court was further criticized for a “somewhat speculative comparison with uses which create perhaps more objectionable results by noise, fumes, emissions and traffic.” Although the record before the lower court was essentially silent about the impact of truck traffic and noise pollution, that court nevertheless found that the applicant’s “use is a relatively innocuous and quiesescent.” The Appellate Division believed that, even if the lower court judge could properly have considered such matters, they did not change the operational use of the facilities. Essentially, the Appellant Division felt that the Law Division judge made the determination that the “intent of the drafters was to create a light industrial zone and then concluded that the proposed materials recovery facility was a light industrial use. In this regard he merely substituted his view of the ordinance for that of the planning board, and failed to analyze. the Township’s ordinance and specifically apply its requirements that ‘any industrial use [be] similar and not inconsistent’ with the above-listed uses in the applicable section of the ordinance.” There is no question that the exclusion of certain uses from an industrial district is a matter within the sound discretion of the municipality’s legislative body. The Court was satisfied that the drafters of the ordinance intended a limited industrial zone which allowed “some, but not all, types of industrial or manufacturing activity.” The Appellate Division reviewed the list of permitted uses and compared those uses to the proposed use submitted by the applicant and found that the list of permitted industries all involved a process of manufacturing, fabricating, or producing useful goods on the site, while the proposed use was nothing more than the sorting and reshipment of solid waste. Consequently, the decision of the lower court was reversed and the determination of the planning board was reinstated.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com