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Pilot Travel Centers, LLC v. Zoning Board of Adjustment of the Township of Mahwah

A-4661-07T2 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; VARIANCES — Before a zoning board determines which standard of review it must employ when reviewing a use variance application, it must first determine whether the applicant is proposing a non-permitted use for the site or is seeking to expand a pre-existing non-conforming use or is seeking relief from a specific condition imposed upon a conditional use otherwise permitted in the zone.

A developer proposed demolishing existing buildings on its property and constructing a “travel center.” Travel centers in the zoning district were not listed as a permitted use and were thus prohibited without a use variance. A use variance only could be awarded pursuant to three separate sections of the applicable statute. To grant a variance to permit a use or principal structure in a district which restricts such use or principal structure, section d(1) of N.J.S.A. 40:55D-70 applies. To expand a pre-existing nonconforming use, section d(2) is to be applied. To grant a variance for a deviation from a specification pertaining solely to a conditional use, section d(3) is applicable. A different standard of review is utilized under each section of the statute.

The developer applied either for a variance to expand its pre-existing nonconforming use (as a truck stop) under section d(2) or a variance for a conditional use under section d(3) of the statute. A conditional use is a use that is already permitted in a particular zone, but only under certain conditions. One of the zoning board members visited one of the applicant’s sites in another state and reported his observations to the full board. The zoning board then applied the more stringent standard applicable to consideration of a use variance under section d(1) of the statute, but did not explain why the application was most appropriately viewed as a use variance under section d(1), as opposed to sections d(2) or d(3). It then concluded that the developer had failed to establish the “special reasons” needed for the requested relief and denied the application. The developer appealed the board’s decision and also claimed that the board member’s testimony and report violated due process rights.

The lower court affirmed the board’s ruling. Without specifically ruling on the propriety of the board’s conclusion that developer required a d(1) use variance, it concluded that the board acted reasonably in considering the application in that light. It noted that the New Jersey Supreme Court in Medici established the appropriate standard of review for a commercial use variance request made pursuant to section d(1). Then, it held that the developer failed to meet its burden of proof under the Medici standard. The developer appealed.

The Appellate Division reversed, holding that implicit in both the board and lower court’s determination was the conclusion that the developer was proposing a non-permitted use for the site. Thus, the board never considered whether the applicant was seeking to expand a pre-existing nonconforming use or seeking relief from specific conditions imposed upon a conditional use otherwise permitted in the zone. The Court agreed with the applicant that this was an erroneous conclusion which led the board to apply the more stringent d(1) standards in evaluating the application. It ruled that the standard of review to be employed is significantly different when the request is one for a conditional use variance under d(3) than under d(1). The analysis for a conditional use variance focuses on the nature of the deviation, rather than on the use itself, and a board must evaluate the deviation’s potential effect on the surrounding properties and the zone plan. Accordingly, it held the nature of the variance sought determines the board’s standard of review. It also held that while an applicant may argue that it meets the criteria for the grant of a variance under any of the use variance subsections, as the developer did here, it was critical for the board to determine, and adequately explain, why its review under a particular subsection was appropriate. It ruled that, in this case, the board failed to do so.

Further, the Court noted that the developer never conceded that the application required review under the section d(1) standard. The Court stated that the developer clearly argued that a section d(3) conditional use variance was appropriate. It concluded that the board never explained why it did not consider the developer’s application as one seeking a conditional use ordinance to which the onerous burden of proof required to support a use variance did not apply. In addition, the Court found that the lower court and the board never considered the applicant’s alternate argument that, at worst, its development was an expansion of a non-conforming use. The Court stated that in the absence of a necessary administrative finding, i.e., why the application required review as one seeking a use variance under section d(1), it was unable to adequately review and pass upon the merits of the applicant’s appeal. The Court did not reach any conclusion on the merits as to whether the applicant’s proposed use was permitted under any of the applicable subsections. Instead, it remanded the case to the board for reconsideration and specific findings.

As to the applicant’s claim that the testimony of one of the board members constituted denial of its due process protection, the Court held that a board may use any reliable source of information, including written reports of other agencies or testimony of public officials. It ruled, however, that if the board was to rely on such testimony, the facts relied upon must be placed on the record. Here, it ruled that any error arising out of the board member’s testimony about his visit to the site, and placement of his report into evidence, was clearly harmless and in no way prejudiced the applicant’s procedural rights. It remarked that such testimony should be avoided, however, because while the information may be accurate, and the board member’s opinions justified, there was nothing to indicate that he possessed the expertise necessary to reach his conclusions.

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