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DeGeorge v. BTO Enterprises, Inc.

A-1646-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; CONDITIONAL USES—Even if similar uses exist in a zone as accessory uses to a permitted use, and even if a particular use is a conditional use in the zone, it may be barred as a stand-alone use.

A company obtained a use variance for its commercial dump truck garage. A neighbor successfully challenged the grant before the Law Division and the garage owner appealed. The neighbor argued that the company failed to meet the criteria established in N.J.S.A. 40:55D-70(d)(1), specifically that the dump truck garage had not satisfied the “aesthetic improvement” rubric, and that the applicant never showed that the property was so “peculiarly fitted to the particular location” that the general welfare would be served by approval of the use variance.

The lower court found that the garage owner had made no concessions that would have improved the aesthetics of the area. Further, it could not understand how a diesel parking garage conceivably could provide an aesthetic benefit. As to being peculiarly fitted, the garage owner’s claim that it needed the variance to be able to use an otherwise unusable portion of the property due to a severe grade shift went only to the issue of subdivision and not to the issue of a use variance. It also held that neither the applicant’s offer to provide a drainage system for the unusable portion of the property nor to put the garage in harmony with other garages in the area was sufficient to satisfy the positive criteria.

Finally, the garage owner attempted to show that its variance application was for a conditional use variance and consequently should have been subject to the different and more lenient criteria of N.J.S.A. 40:55D-70(d)(3). The owner, however, never presented its conditional use case to the zoning board. The evidence before the lower court demonstrated that the use was not permitted in the pertinent zone. Although similar garages were permitted as conditional uses in other zones, this particular zone imposed a condition that a commercial garage was a conditional use only be permitted as an accessory to a service station. Since this garage was not associated with a service station, it did not qualify. The Appellate Division upheld the lower court’s upholding of the board’s decision.

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