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Stavola Industries, LLC v. Brick Township Zoning Board of Adjustment

A-3794-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; USE VARIANCES — A valid ground to deny a use variance is that the applicant has failed to show that constructing a new facility is the only way to meet upgraded environmental standards.

An operator of an asphalt plant located in a rural residential zone applied for variances to demolish most of its structures at the site and to replace them with more modern equipment. With the new structures, it was expected to produce asphalt at twice the prior rate. It needed to build four silos for storage located in the same area as a water treatment facility. The municipal planning board denied the application, finding that a rehabilitation of the facility could cause byproduct contaminants to migrate downstream to the water treatment facility. It did not believe that the operator’s proposed system of preventing infiltration would be effective. The lower court affirmed, finding that the board had a heightened degree of concern regarding the drinking water supply becoming contaminated due to the additional heavy vehicles traffic that would follow the proposed upgrades. In doing so, it deferred to the board’s knowledge of its own community and supported the board’s conclusion that the replacement plant would not be compatible with the water treatment facility.

On further appeal, the operator asserted that a use variance was not necessary for the changes it wished to implement, and that the board’s denial was arbitrary and capricious. The Appellate Division saw the operation of the asphalt plant in a rural residential zone as a nonconforming use and held that any modernization would require a variance to allow expansion of the prior nonconforming use. The Court found that the board reasonably concluded that the operator had failed to prove that the proposed use promoted the general welfare which requires a showing that a proposed site is particularly suitable for the proposed use. The Court also found the board’s decision reasonable that the operator had not presented any evidence that constructing a new facility, with double the prior production capacity and ability to store asphalt, was the only way to meet upgraded environmental standards. It thought the applicant could retrofit existing equipment. The Court also held that the board had expressed valid reasons to deny the use variance, relying notably upon expert testimony that a use variance would result in additional truck traffic, and would result in contaminants drifting off present stockpiles. Thus, the Court concluded that the board’s decision was neither arbitrary nor capricious.

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