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E-Z Auto Service Inc., v. Mayor and Township Committee for The Township of Plumstead

A-4853-03T5 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; CONVENIENCE STORES Where both convenience stores and gasoline stations are expressly permitted in the commercial zone of a municipality, the combination of a gas service station with a convenience store, a widespread use throughout New Jersey, can be considered to be a single principal use for a single lot, and need not be treated as two separate principal uses.

A contract buyer sought three zoning and planning approvals to allow construction of a convenience store with gasoline service operations on two adjacent lots. One lot was designated as part of zone C-3, a commercial designation. Its permitted uses included retail or wholesale businesses, automobile service stations, and convenience food establishments. Present on the lot was a restaurant. Long before, there had been gasoline service on the lot. The other lot was zoned R-40, a residential designation intended for one-acre detached single-family residential homes. This lot contained a single-family residence and a commercial auto repair shop that had previously received a variance for its use. A residence and a towing company were adjacent to this lot.

The final site plan for the construction called for a 4,911 square-foot convenience store with twelve fueling positions. An expert professional planner testified before the municipality’s land use board in support of recommending a zoning change for purposes of this use. She stated that the change would eliminate seven existing variances for the two lots and would be consistent with the surrounding land uses and with the existing commercial use of the site. The board recommended that the municipality’s governing body adopt the zoning change. Its passage was opposed by a business competitor, who argued, through its environmental consultant, that the gas service would create air pollution, storm water, and drinking water issues that would conflict with the municipality’s Master Plan for land use. The competitor’s traffic engineer testified of increased traffic. Its professional planner offered that the land use board should consider an application for a use variance rather than a zone change because a zone change would constitute creeping zoning. Nonetheless, the municipality’s governing body approved the zone change and enacted the applicable ordinance.

The business competitor filed for relief in the lower court, arguing that the rezoning was spot zoning - invalid and a deviation from the Master Plan. The lower court thought the history of the two lots was important. It observed that a prior variance allowed for the existing automobile repair shop and a residence on one lot. It also found that there was a valid municipal reason to rezone the property because one of the lots was already zoned for commercial use and the other contiguous lot had one current use that was a permitted commercial use. It seemed logical to the lower court that placing this lot in the commercial zone would be consistent with the municipality’s Master Plan as the lot was already not exclusively used for residential purposes. As such, it affirmed the rezoning decision.

The business competitor appealed this decision. The Appellate Division first pointed out that a zoning ordinance is presumed valid but may be overcome by a showing that is clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the zoning statute. It also pointed out that a zoning ordinance must be reasonable under the circumstances. The Court found that the addition of one lot to the commercial zone at issue was substantially consistent with the Master Plan because the lot was contiguous to the commercial zone and contained a use that was a permitted use in the commercial zone. According to the Court, the change of zone did not introduce a use that did not already exist on the site. The change simply reflected the current and past use of the site. The Court also was satisfied that the rezoning was supported by a valid municipal purpose and expert testimony was reasonably relied upon in support of the rezoning.

The Court rejected the business competitor’s argument that a use variance was required notwithstanding the zoning change, as the Court observed that the zoning ordinance did not limit the number of principal uses on a single lot, and both convenience stores and gas stations were expressly permitted in the commercial zone. The Court also favorably weighed the land use board’s resolution’s comment that throughout New Jersey the combination of a gas service station with convenience store facilities was widespread as a single commercial use of commercial property. The Court also approved of the lower court’s deference to the land use board’s interpretation of the municipal engineer’s opinion that only two land use variances would be required by the applicant’s commercial use on the lots, as opposed to the business competitor’s comment that as many as forty-seven variances would be required. The Court notably commented that the business competitor only discussed one variance in its brief, and so its proofs fell far short in rebutting the presumption that the land use board had properly exercised its discretion. The Court also found that the contract buyer had agreed to abide by all conditions imposed by the land use board, including restrictions on deliveries between certain hours. It concluded that there was no indication that the land use board wrongfully rejected any uncontroverted testimony or that the applicant’s experts or the board’s professionals accepted the business competitor’s position. Accordingly, the Appellate Division affirmed the lower court’s judgment.

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