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Randolph Investors Limited Partnership v. The Bd. of Adjustment of Readington Twp.

A-6303-99T2 (N.J. Super. App. Div. 2001) (Unpublished)

ZONING; PRINCIPAL USES—Adding a gas station, otherwise a conditional use, to a prior non-conforming carwash is patently an intensification, neither negligible nor insubstantial, and such a combined use is subject to use variance requirements even if use as a gas station alone were not.

A contract-buyer of a tract measuring less than two acres sought to use the property as a gasoline station, automobile repair facility, and carwash. Those uses were not permitted by the zoning ordinance. The zoning ordinance addressed heavy traffic along a major highway that ran through the district. It permitted “[l]ess traffic-intensive uses [] on lots of two acres or less, moderate traffic-generating uses [] on lots between two and five acres in area, and heavier traffic-generating uses [] on lots of five acres or more.” Carwashes as a principal use were not permitted at all in the district, and gasoline stations and automobile repair shops were permitted only as conditional uses throughout the district. On lots of two acres or less, the zoning ordinance permitted only one principal use. The initial application was denied. The contract-buyer submitted a new variance application seeking approval for a carwash only and that application was granted. It never built the carwash, but four years later sought modification of its variance “in order to add gas pumps, i.e., a gasoline station to the carwash use although it did not then seek approval for an automobile repair facility.” That application was denied. The case reached the Appellate Division, which viewed the applicant’s theory as being that “the limitation of the zoning ordinance to one principal use on a property of this size [was] not applicable here because the two uses, a carwash and a gasoline station, [were] not independent uses but [were], rather accessory to each other.” The contract-buyer asserted that because the carwash use was now a permitted use by reason of the earlier variance grant, its application for a gas station should have been considered as a conditional-use application rather than as an application for another use variance. Lastly, it argued that certain conditions attached by the ordinance to the conditional use were unconstitutional. More particularly, it challenged “the required distance between gasoline stations and the required number of parking spaces… .”

The Court thought it to be “perfectly obvious” that the applicant was attempting to obtain, by piecemeal applications that which it failed to obtain by a single application. Therefore, the Court would not characterize the service station application as if it were the first, new and only use of the property. To the Court, it was “perfectly clear that adding the gasoline station would constitute an expansion of the permitted non-conforming carwash use.” Under well-settled law, “an expansion of a non-conforming use results from a change in that use or an intensification thereof that is neither negligible nor insubstantial.” Where there is a doubt as to whether a change is substantial, “that doubt is required to be resolved against the enlargement.” Consequently, expansion of a non-conforming use requires a use variance “for the entire proposed enterprise and must meet the required positive and negative criteria informing its grant.” According to the Court, “[a]dding a gas station to a carwash is patently an intensification that is neither negligible nor insubstantial… .” It doesn’t matter whether a gas station is a permitted use, a conditional use, or a prohibited use. Here, the Court held that it was clear that the applicant wanted “a carwash and a gas station. A carwash requires a use variance. In our view, it makes no ultimate difference to the required approval process if [the applicant] were to seek both uses simultaneously, the carwash first or the gas station first. The fact remains that the combined use is subject to use-variance requirements, even if one of the uses individually, is not.” As to any argument that the gasoline station was an accessory use to the carwash or vice versa, the Court had no doubt that “the carwash operation proposed by [the applicant was] not intended as part of the proposed gas station operation but as an independent enterprise.” To the Court, the only relationship between the carwash to the gas station was that they both served users of automobiles. It didn’t matter that the applicant argued that the combined operation would be more profitable than either operation alone. “Relative profitability of use does not give rise to a justification for a use variance.” Once the Court found that the applicant failed to demonstrate special reasons for the required use variance, it did not consider the constitutional challenges to the ordinance because they were not germane to the zoning board’s conclusion that no special reasons had been shown by the applicant to allow the use variance.

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