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Scholastic Bus Co. Inc. v. Zoning Board of the Borough of Fair Lawn

326 N.J. Super. 49, 740 A.2d 657 (App. Div. 1999)

ZONING; USE VARIANCES—Faced with an inherently beneficial use, a zoning board is obligated to consider how the detrimental effect of the use can be mitigated by imposing reasonable conditions on that use.

A bus company and a property owner applied for a use variance to locate a school bus parking and maintenance facility in an industrial zone. The zoning board denied the application solely because of the expected effect on off-site traffic coupled with ingress and egress difficulties at the site. A neighbor operated a cement plant on adjacent property and both the site in question and the cement plant were accessed by a “paper” street which intersected with a heavily traveled country road. The cement company’s concrete carrying trucks used that intersection. The bus company intended to move its local fleet of 35 to 40 school buses and 70 vans in and out of the property in eight traffic movements per day. That traffic would share the “paper” street with the cement trucks. The bus company’s application for a Certificate of Occupancy was denied on the ground that a use variance was necessary because the local zoning officer believed that the industrial zone did not permit the contemplated use. The application for a use variance was bifurcated from the site plan consideration of the proposed development. The objectors presented witnesses who testified that it was very difficult to use the “paper” street and to enter the busy intersection with the country road because of the physical arrangements, angles, and slopes of the roads. The testimony was to the effect that the school buses and vans would have a difficult time turning onto the country road when the cement trucks were returning to the property. Significantly, however, one of the objector’s main witnesses testified that this difficulty could be alleviated if the school bus company improved the intersection of the roads. When the board denied the variance application, it concluded that a “school bus depot is an inherently beneficial use,” but the negative criteria were not met because the school vehicles would exacerbate “poor traffic movements in the area and increase the risk of collision.” The resolution also stated that the board was “aware of no conditions that it can impose to reduce these detrimental effects of the proposed use variance.” The Court did not need to determine whether the proposed use was a permitted use because the zoning ordinance had subsequently been amended to bar the operation of school buses within the industrial zone. It agreed with the zoning board that the proposed use was inherently beneficial. In fact, it felt that even if such a use were not inherently beneficial, the proposed site was particularly suited for the proposed use and, therefore, would have satisfied the positive criteria. The Court held that in this case the zoning board failed to consider how the detrimental effect could be reduced by imposing reasonable conditions on the use. It did not properly consider the objector’s expert’s recommendation of five specific conditions that could be imposed to reduce any detrimental effect on the proposed use. The objectors argued to the Court that what its expert suggested was “massive and terribly problematic,” and therefore the board was justified in concluding that there were no conditions that it could impose. The Court disagreed. It held that the expert did not testify that the conditions were unworkable and also held that there was no basis for the zoning board’s conclusion that it was not aware of any conditions it could impose to reduce the detrimental effects. Consequently, the matter was remanded for fact finding to the zoning board for the imposition of reasonable conditions on the use.


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