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DePetro v. Township of Wayne Planning Board

367 N.J. Super. 161, 842 A.2d 266 (App. Div. 2004)

ZONING; SELF-STORAGE—Operating self-storage units is not the same use as operating a commercial warehouse and zoning ordinances governing commercial storage buildings do not apply to self-storage buildings.

A local planning board approved a company’s application to build a self-storage facility within a “B” business zone. A competitor challenged the board’s approval and argued that the facility did not constitute a permitted use within the municipality’s business zone. The lower court approved the planning board’s decision, holding that the self-storage facility differed from a prohibited commercial storage warehouse in that it was used for personal, not commercial purposes. On appeal, the competitor again argued that the facility constituted a prohibited commercial use. In response, the applicant cross-appealed, arguing that its competitor lacked standing to be an objector.

The Appellate Division first held that the competitor’s challenge was not statutorily authorized. It ruled that the planning board did not have the authority to resolve a challenge to the interpretation of an ordinance like the one in this case. The competitor should have filed a request for interpretation with the board of adjustment. As a consequence, the Court held that the competitor lacked standing to appear before the planning board because the issues that it sought to raise were beyond the board’s statutory jurisdiction. On the other hand, the Court ruled that this mistaken choice of forum did not deny the competitor the opportunity to litigate the issue. It found that the competitor could qualify as an “interested party” under N.J.S.A. 40:55D-4. That statute defines “interested parties” as “any person ... whose right to use, acquire, or enjoy property is or may be affected by any action taken under the [Municipal Land Use Law].” Prior case law had established that this definition governs standing in court. The competitor had expressed a valid concern. It was not simply about competition, but whether the municipality’s zoning ordinance had been properly applied. It was entitled to standing even though its economic interest coincided with a strong public interest in the resolution of an issue. Consequently, the competitor was an “interested party.”

The competitor still did not prevail because the Court also affirmed the lower court’s conclusion that the company’s proposed development constituted a permitted use under the municipality’s zoning ordinance. As recognized by the lower court, a commercial storage warehouse, prohibited in the municipality’s “B” zone, differed considerably from the self-storage facility that the company proposed. Commercial storage warehouses are used by manufacturers and distributors for bulk storage and for the transfer of finished and unfinished goods. Such businesses engage in a high volume of heavy truck traffic, operate at all hours, create considerable noise, and are the source of a great deal of pollution. Conversely, self-storage facilities consist of individual, small compartments that operate during normal business hours, and do not lead to heavy, polluting truck traffic. Also, the New Jersey legislature had enacted specific legislation pertaining to self-storage facilities. The Self-Service Storage Facility Act specifically distinguishes between facilities subject to the Act and warehouses subject to the UCC.

The Court also reversed a decision by the lower court that would have limited storage at the facility to non-commercial goods and business records. The Court found no evidence upon which to base a distinction between commercial and non-commercial uses. In testimony and other evidence introduced at the hearings before the planning board, no distinction was made when addressing the concerns over traffic, pollution or hours of operation. Furthermore, the Court could not find a distinction between the storage of business records, which the lower court permitted, and the storage of small amounts of inventory, which the lower court precluded.

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