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Mountain Hill, L.L.C. v. Zoning Board of Adjustment of the Township of Middletown

403 N.J. Super. 210, 958 A.2d 42 (App. Div. 2008)

ZONING; SPLIT ZONING — Where parking in each of two different land use zones is sufficient to accommodate all of the uses in each zone, and driveways connecting adjacent projects are not necessary to access either zone from a public street, no use variance is required for such cross-zone driveways.

A developer owned split-zoned property. A portion of the property was located in an M-1 zone. This permitted light industrial uses but did not permit residential uses, supermarkets or department stores. The other portion of the property was located in a planned development (PD) zone, which permitted town centers and mixed uses. The developer proposed to build cross-zone driveways to allow access to the properties in both the M-1 and PD zones. The developer argued that since there was sufficient parking and access to public streets for the properties located within each zone without the use of the cross-zone driveways, the driveways were not critical to the use of either zone and were merely incidental or accessory uses. The developer noted that the properties within the M-1 zone had five means of access to the public streets and the properties within the PD zone had seven means of access, both of which, standing alone, were sufficient for the use of the property within the respective zones. The municipality, however, claimed that the developer needed a variance because the common driveways located within the M-1 zone were an accessory use to the PD zone.

The lower court agreed with the municipality. The developer appealed and the Appellate Division reversed, noting that, as a general rule, the use of property in a residential zone to gain access to a commercial property is a commercial use in violation of zoning laws. When determining whether a driveway crossing two zones in an improper use, the issues are: (a) whether the driveway is essential to the business use; and (b) if it presents a threat to the permitted use. If a cross-zone driveway is an essential and integral part of the commercial use, then the cross-zone driveway violates the zoning code for the portion located within the residential zone. If the cross-zone driveway is not an integral part of the commercial use, the question is whether the driveway leading to a commercial property is more advantageous to the commercial property and alters the residential character of the other property. If the cross-zone driveway is more advantageous to the commercial property and is detrimental to the residential character of the residential property, then a variance would be required.

This case was not about the balancing the interests of strictly residential property with commercial property. Both the M-1 zone and PD zone allowed for commercial uses, although the M-1 zone did not permit residential uses or some specific commercial uses. The Court analyzed whether the use of cross-zone driveways located within the M-1 zone that cross into the PD zone were essential and integral to the uses within the PD zone and threatened the permitted uses within the M-1 zone. It found that the cross-zone driveways were not essential for those uses that were prohibited in the M-1 zone but allowed in the PD zone, since there were sufficient access points to the PD zone from the public streets without using the cross-zone driveways. The Court also found that the non-conforming use of the M-1 driveways to access the PD zone did not threaten the permitted uses within the M-1 zone, most of which were similar to the permitted uses for the M-1 zone. Therefore, the Court concluded that the cross-zone driveways were accessory uses that did not require a variance.


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