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Saadala v. East Brunswick Zoning Board of Adjustment,

412 N.J. Super. 541, 991 A.2d 866 (App. Div. 2010) (Unpublished)

ZONING; VARIANCES — Variance applications for new uses are subject to more restrictive standards than such applications are for prior non-conforming uses; for example, an applicant under the former circumstances must show that either the general welfare is served because the proposed use is particularly fitted to the location or that undue hardships exist because the property cannot be reasonably adapted to a conforming use.

A convenience store operated in a commercial zone, but part of its property was located in a residential zone where convenience stores were not permitted. However, because the convenience store had been constructed before the current zoning code was adopted, it was allowed to operate as a pre-existing, non-conforming use. The convenience store was adjacent to a gas station, which was also operating as a pre-existing, non-conforming use. After the county and municipality condemned strips of the two adjacent properties to widen a nearby intersection, the gas station closed down and removed its pumps. The convenience store then proposed to expand its business and create a mini-mart – a combination convenience store and gas station. The convenience store contracted to buy the gas station and another adjacent lot also located in a residential zone.

The convenience store requested use variances for both the existing convenience store and the proposed gas station, arguing that the creation of the combined mini-mart was an expansion of the non-conforming uses of both properties and not a new use. Whereas there are more restrictive standards applicable to a variance application for a new use, the standards for expanding a pre-existing non-conforming use are less restrictive. The zoning board approved the application, but a resident challenged the zoning board’s approval. The lower court affirmed. It concluded that there were two independent, non-conforming uses that would be consolidated into a single use. Therefore, it deemed the application an expansion of a non-conforming use.

On appeal, the Appellate Division reversed. The Court noted that non-conforming uses are inconsistent with the objectives of uniform zoning, and therefore they are only permitted to continue if they are substantially the same kind of use as existed at the time the zoning code was passed. The Court noted that the convenience store had agreed that its development plan did not involve merely the continuation of the prior use. It found that under the convenience store’s plan, a non-conforming convenience store on one lot and a non-conforming gas station on another lot were being replaced with an integrated, non-conforming business on the two lots, plus the additional lot that was never used for a non-conforming business. The Court concluded that the new construction was not merely an expansion of the convenience store or gas station, but constituted a substantial change in the use of the properties.

As further evidence that the mini-mart was a new use and not an expansion of a pre-existing use, the Court noted that, under the current zoning code, a gas station/mini-mart is in a different category than either convenience stores or gas stations. Having concluded that the proposed mini-mart was a new use, and not the continuation of two pre-existing non-conforming uses, the Court analyzed whether the convenience store met the more restrictive standards applicable to variance applications for new uses. Under those standards, if a use is not inherently beneficial, the applicant needed to show special reasons. For example, it must show that either the general welfare is served because the use is particularly fitted to the particular location, or that undue hardships exist because the property cannot be reasonably adapted to a conforming use. The convenience store did not prove the special reasons that the property was particularly fitted for a mini-mart or that without the variance the property could not be put to a productive use.

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