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Paks Fast Service, Inc. v. Zoning Board of Adjustment of the Township of Mahwah

A-1948-10T2 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING — A governing body does not have the power to interfere with a zoning board’s right to exercise its authority to grant a variance because a zoning board has the sole statutory power to evaluate and to either grant or deny a variance authorizing deviation from a condition for use of an applicant’s property.

A zoning applicant leased property in a highway business zoning district and operated a truck stop and fueling station there. The property had access to a main highway and a side road. It filed a site plan approval application with the planning board to remodel and improve the property. The applicant’s proposal called for replacing the truck stop with a more traditional gas station facility. At the time of the initial proposal, the municipality’s zoning ordinance prohibited gas stations within 200 feet of any schools or certain other public facilities located along the same street or block. The applicant’s property was on a different block than the high school, so the restriction did not apply.

While the application was pending, the municipality amended its ordinance to enhance the restriction. Under the revised ordinance, the proposed development would no longer be in compliance with the zoning regulations because it was within 500 feet of a school.

The application was denied without prejudice. At a later date, the applicant filed a variance application to deviate from the distance restriction. In a significant change, it included a large chain link fence along the side road so that access to its property from the side road would be closed. The planning board approved this application and granted the variance. A competing business filed an action challenging the board’s decision. The lower court ruled that the board did not act arbitrarily, capriciously, or unreasonably in granting the conditional use variance.

In an appeal, the competitor contended that the lower court incorrectly applied the second part of the negative criteria requirement for granting a variance. The standard for granting a variance includes proof of satisfactory positive criteria by a showing of special reasons for the variance and also that the “negative criteria” be satisfied. To satisfy the negative criteria, an applicant must show that the variance can be granted without substantial detriment to the public good and that the grant of a use variance is not inconsistent with the intent and purpose of the municipality’s master plan and zoning ordinances. The board must show that granting of the variance is reconcilable with the municipality’s legislative determination that the zoning condition should be imposed. Here, the Court concluded that the board had fulfilled its obligation. The board found that the closing of the side road access, the proposed landscaping and buffering, and the proposed new fencing would accomplish the purpose of the ordinance by separating the gas station use from that of the high school.

Furthermore, the municipality’s council did not intend to prohibit a gas station at the site under all circumstances, but rather left it to the board to review any application for a variance from the 500-foot distance requirement and to determine if the statutory criteria had been met. A governing body does not have power to interfere with a zoning board’s proper exercise of its authority to grant a variance. To the Court, the board had acted consistently with its statutory power to evaluate and either grant or deny a variance authorizing deviation from a condition for use of the property, and the board’s decision was supported by substantial evidence that the proposed development would satisfy the purpose of the 500-foot requirement through alternatives of fencing, buffering, landscaping, and terminating access to a local road. Thus, the lower court’s ruling was affirmed.

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