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Financial Services, L.L.C. v. Zoning Board of Adjustment of the Borough of Little Ferry

326 N.J. Super. 265, 741 A.2d 121 (App. Div. 1999)

ZONING; ACCESSORY USES—A check cashing business is not an accessory use to a gasoline service station.

A tract of land in a “B-H Highway Regional Business Zone” was occupied by a gasoline station. A small additional building was also on the lot. The gasoline station proposed to sublet the additional structure to a check-cashing business. The zoning for the tract, however, permitted only regionally oriented retail shopping centers (that could include gasoline filling stations), theaters, and auditoriums. There were a number of conditionally permitted uses, including banks and savings and loan institutions. Any uses other then the permitted uses were prohibited. In fact, a gasoline service station was expressly prohibited except as part of a regionally oriented shopping center. Further, the gasoline station was located on a nonconforming lot which lacked the required minimum area and was of insufficient depth. Its structures violated both front and rear yard setback requirements. The building in which the applicants desired to house the check cashing business had originally been designed as a food mart, and was currently being used for storage by the station operator. The municipality’s construction official denied the application, concluding that the zoning ordinance proscribed mixed uses on the same building lot. An application was then made to the zoning board of adjustment. The owner of the check-cashing business described the proposed use as “a non-bank bank.” Its traffic expert essentially found no detrimental impact from the traffic that the proposed business would generate. The expert also found that the applicant’s proposed five parking spaces would adequately serve the check cashing business’ customers. The board’s traffic expert testified that although the business would generate additional traffic, it would not create a “significant concern” on the adjacent major highway. However, the municipality’s expert was concerned that the highway had no shoulder for tractor trailers to pull to the side to park and, although conceding that the five proposed parking spaces met the zoning requirements, concluded that nine spaces would be more appropriate. The board unanimously denied the application citing safety concerns, increased traffic and congestion, inadequate parking, and the hardship to the neighbors from a third use on the property. The board also believed that the applicant failed to show that its application conformed to the master plan, would benefit the neighborhood or that it met any of the fifteen goals of zoning articulated in the Municipal Land Use Law. Further, the board members believed that the applicant had failed to demonstrate any special reasons, meet the negative criteria, show that the negative criteria outweighed the positive criteria, or demonstrate an actual need for a check cashing business. Based on all of those findings, the board concluded that it could not grant the relief requested “without substantial detriment to the public good and without substantially impairing the intent and purposes of the zone plan and zoning ordinances of the [municipality].” On appeal, the check cashing business argued that its use was accessory to a gasoline station. Alternatively it argued that because a check-cashing business is the equivalent of a bank or savings and loan association, the proposed use was a permitted conditional use. The Appellate Division was not sympathetic to the applicant’s arguments. According to the Court, the plain language of the zoning ordinance made it clear that a check cashing business is not an accessory use to a permitted use, nor is it a conditional use and, most significantly, it is not a use that can exist on the subject lot with the current nonconforming principal use and gasoline station. To qualify as an accessory use, a proposed use must be one customarily incidental and subordinate to a permitted principal use. “The terms, customarily incidental and subordinate, entail proof a proposed use is of minor significance and a use commonly, habitually, and by long-standing practice established as reasonably associated with the permitted principal use.” Further, the check cashing business’ failure to qualify as an accessory use made it a principal use. Beyond that, the gasoline station at issue was a nonconforming use. The zone permitted gasoline stations only as a part of regionally oriented shopping centers. Given that the gasoline station was a nonconforming principal use, the ordinance proscribed a second principal use. In fact, it limited the use of a building lot to “a” principal use and its accessory uses. The common meaning of “a” is one. Simply put, two principal uses were not permitted on any building lot under circumstances that do not constitute a regional shopping center. Moreover, even if the check cashing could be deemed a use accessory to a gasoline station, the proposed use would amount to the expansion of a nonconforming use, which would also have required a variance.


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