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Declement v. Township of Elk

2005 WL 3115829 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; HOURS OF OPERATION—A land use board need not rely on an ordinance that limits a business’s hours of operations when making limited hours a condition to granting approvals so long as the restrictions are reasonably related to the special problems of the site in question.

A property owner got approval for a site plan “for operation of [its] gas station and convenience store with the condition that the facility could only operate between the hours of 6:00 a.m. and midnight. Subsequently, the area that included the location of [the service station] was rezoned from rural/agricultural to moderate density commercial property… .” A subsequent change in business competition prompted the property owner “to seek the elimination of the limitation on the hours of operation.” Its argument was that there was no ordinance generally restricting the hours operation on any business in the commercial zone. Thus, it argued that round-the-clock operation would not require a variance. Nonetheless, the land use board denied the property owner’s application to amend the site plan and eliminate the limitation on hours of operation. The property owner appealed to the lower court arguing that the land use board had acted arbitrarily and capriciously in denying the amendment request. The lower court denied relief stating, “what we’re dealing with is a very limited application before the Combined Board to modify a three and one-half year old decision. There is no law that is put before [the court] which says that a Board such as the Combined Zoning Board can’t attach conditions to a site plan subdivision approval. It’s obviously the law of this State that such conditions, as long as they are reasonable [may be imposed].” On appeal, service station owner pointed out that another business in a nearby C-1 Neighborhood Commercial zone was permitted 24 hour operation whereas its own business, located in C-2 Highway Commercial zone, was being denied such a privilege. The Appellate Division thought that “the characteristics of the two businesses” were different. The other store was only a mini-mart convenience store, whereas the applicant’s business included a gasoline service station. The record of the land use board “revealed a legitimate concern over lighting and noise generated by tractor-trailers and large delivery vehicles associated directly with the gasoline service station component of [the appellant’s] facility.” In fact, it held that the land use board’s denial of an expansion of the hours of operation “turned upon its consideration of the potential impact of such amendment on neighboring residents.” According to the Court, that was not per se arbitrary, capricious or unreasonable.

The Court also addressed the argument that the land use board “had no authority to limit the hours of operation of a business in [the] absence of a municipal ordinance authorizing such limitations.” It rejected that argument on procedural and substantive grounds. Procedurally, it believed that the objection should have been raised when the initial site plan approval was granted. On the merits, it pointed to New Jersey case law that recognizes “the power of a zoning board to impose reasonable limitations.” In doing so, it cited an earlier Appellate Division opinion which stated: “[t]he theory is that certain uses, considered by the local legislative body to be essential or desirable for the welfare of the community and its citizenry or substantial segments of it, are entirely appropriate and not essentially incompatible with the basic uses in any zone (or in certain particular zones), but not at every or any location therein or without restrictions or conditions being imposed by reason of special problems the use or its particular location in relation to neighboring properties presents from a zoning standpoint, such as traffic congestion, safety, health, noise, and the like. ... [A board may grant approval] subject to such specific safeguarding conditions as the agency may impose by reason of the nature, location and incidents of the particular use.”


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