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Loori Bus Company v. Township of Middletown Zoning Board of Adjustment

A-3499-09T3 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; USE VARIANCES — School bus facilities are a use necessarily accessory to school buildings themselves and, thus are a clearly beneficial use that presumptively satisfies the positive criteria needed to obtain a use variance.

A school bus company sought both a use variance to construct an additional bus parking area on a lot adjoining its existing bus depot and parking lot, and a bulk variance to permit construction of a gravel lot instead of a paved lot. At the zoning board hearing, the company’s owner testified that eighty percent of his company’s work was for the local school district, with another twenty percent for neighboring school districts. The owner also testified that the existing parking area was too small to accommodate the company’s buses. In rejecting the application, the municipality found that the use was not inherently beneficial because the company presented no testimony that additional parking for school buses was required by a school board. The board analyzed the application as one for an ordinary use, rather than an inherently beneficial use, and found that expanding the prior non-conforming use would bring traffic, diesel fumes, headlights, and noise closer to the adjoining residential homes.

The company filed a complaint in lieu of prerogative writs, and the lower court found that school bus facilities are a use necessarily accessory to the school buildings themselves and, thus, a clearly beneficial use. It also found that there was a need for the expansion, and that the lot was particularly suited to the proposed use. The land use board appealed.

In the appeal, the Appellate Division found that the zoning board had based its decision on a legally incorrect definition of an inherently beneficial use. The Court also noted that the board had exaggerated the potential harm and premised its decision on a baseless finding that there had been massive public opposition to the application, when only one objector testified at the hearings.

Ordinarily, an applicant seeking a use variance must satisfy the positive and the negative criteria required by the Municipal Land Use Law. However, if a use is inherently beneficial, the applicant presumptively satisfies the positive criteria. The Court found that any concern over possible negative effects on the surrounding neighborhood could be mitigated by imposing reasonable conditions. As a result, it remanded the bulk variance application to the zoning board because the board had never addressed the issue.


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