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Getty Petroleum Marketing, Inc. v. City of Bayonne Zoning Board of Adjustment

A-5204-06T1 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING — Decisions made by municipal land use boards are entitled to considerable deference because local boards are more familiar with a community’s characteristics and interests than a court.

A company proposed the building of a convenience store and a gasoline station on an irregularly shaped property where a trailer park stood. The property, which consisted of two lots, fronted two parallel streets. One of the lots was in a residential zone and fronted a residential street and the other was commercially zoned and fronted a heavily trafficked road that led to a major highway. The company applied for a variance from the zoning board of adjustment because the convenience store was not a permitted use in the residential zone where it was to be built. A variance was also necessary for the gas station which was not a permitted use on either lot. An objector who operated a nearby gas station challenged the company’s variance application. Following the hearing on the variance request, the board approved the application, which was affirmed by the lower court on an action brought by the objector.

On appeal, the Appellate Division pointed out that decisions made by municipal boards are entitled to considerable deference because local boards are more familiar with a community’s characteristics and interests than a court. It also pointed out that because legislative policy preferred planning by ordinance as opposed to by variance, less deference is given to the granting of variances than to a denial of a variances. The Court found that the board properly determined that the positive criteria of establishing the benefit to the surrounding community had been met by the applicant based partly on the aesthetic improvement to the area by replacing an existing trailer park with the new construction. The Court also found that the negative criteria of showing that the granting of the variance would not have a detrimental effect on the surrounding community had been met.

The board’s determinations: that there would be a revitalization of the under-utilized site; green space would act as buffering; and there would be a lessening of traffic on the residential street outweighed any detriment resulting from an increase in traffic along the heavily trafficked road, were found to provide adequate grounds for the approval of the variance. As a result of the Court’s findings, the board’s approval of the variance was affirmed.


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