North Haledon v. Prospect Park Planning Board

A-6102-97T5 (N.J. Super App. Div. 1999) (Unpublished)
  • Opinion Date: May 26, 1999

ZONING; ACCESSORY USES—If, without its storage silos, an asphalt plant can operate and function without impairment of the principal structure’s basic use as an asphalt plant, the silos are an accessory use.

The operators of an existing asphalt plant within a rock quarry applied to the municipal planning board for site plan approval and a height variance to construct a new asphalt plant deeper within the quarry. The new facility was described as a modern, fully-automated asphalt facility and was to replace the existing plant. It was approved by the Department of Environmental Protection and endorsed by the utility company as “more energy efficient.” The local ordinance imposed a 30 foot height limitation on structures, but the property owner wanted to erect four storage silos, each approximately 82 feet high, and two mixing tanks, each approximately 39 feet high. The production capacity of the new plant was to be the same as that of the old plant and its hours of operation were to remain the same. The municipal planning board approved the site plan and the height variance. A neighboring municipality sought to have the Superior Court reverse the planning board approval, but that court affirmed the approval concluding, among other things, that the storage silos were accessory rather than principal structures. The Appellate Division affirmed that decision. Also on appeal, the neighboring municipality argued that the planning board lacked the jurisdiction to consider the height variance and that the matter should have been before the municipality’s zoning board. The Court held that the main body of the new plant was of a permissible height, but the entire new plant, being located within the quarry, was to be constructed in such a way that the tops of the new silos would still be approximately 50 feet lower that the silos of the old plant and 70 feet below the top of the quarry. Testimony was presented before the lower court that the purpose of the silos was to store different types of hot asphalt while the main plant was producing other asphalt. The plant could have been operated without silos, but it would not have been an efficient method of operating an asphalt plant. Because of these reasons, the Court also concluded that use of the silos and mixing tanks were “accessory” to the principal structure and relief from the height requirement could be granted by a planning board. Planning boards are vested with the jurisdiction to grant variances when considering site plan approval of a proposed development, but they do not have the ancillary power to grant certain kinds of variances, known as “d” variances. In essence, “d” variances apply to principal structures, while the variances that can be heard by a planning board apply to accessory uses. Accessory uses are those uses which are incidental and subordinate to the primary use of the property. Few fixed rules govern the making of the determination of whether a specific use is accessory or primary. To the Court, however, the function of the silos was analogous to that of a warehouse. Without the silos, the plant could operate and function without impairment of the principal structure’s basic use. Having reached the conclusion that the planning board could hear the matter, the Court also held that the planning board’s decision was neither arbitrary, capricious nor unreasonable. In the Court’s view, the applicant clearly demonstrated that there would be no substantial detriment caused by modernizing the asphalt plant. The evidence was clear that the new plant would be more energy efficient and less visible to the surrounding residential properties. Since the site plan application met the standards set forth in the site plan ordinance, the board had no choice but to approve the site plan.