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The Stop & Shop Supermarket Company v. The Bd. of Adj. of the Township of Springfield

315 N.J. Super. 427, 718 A.2d 1218 (App. Div. 1998)

ZONING; VARIANCES—A grant of a use variance is predicated on the suitability of a particular site for a particular enterprise and is not necessarily transferable to a subsequent user with a similar, but qualitatively different use.

The front of a property was zoned as commercial and the rear of the property was zoned for single family residential use. In 1956, an upscale department store obtained a variance to permit the residential portion of the property to be used for off-street parking. In 1968, it applied for a use variance to extend the rear portion of its department store building into the residential zone. The zoning board again granted the application, finding that the department store “provided shopping of quality not otherwise available in the community.” It further determined that extension of the building into the residential zone would not impair the value or use of the surrounding areas. Years later, the department store abandoned the location.

A supermarket operator purchased the property in 1996. Intending to open a supermarket on the property, it applied to the zoning officer for an interpretation as to whether its proposed use of the property would comport with the previously granted variances. The zoning board’s attorney concluded that the proposed use of the property as a supermarket differed substantially from the prior operation as a department store. The supermarket appealed the attorney’s decision to the board. At several hearings, it argued that it could develop the property for any purpose consistent with the permitted commercial use under the municipal zoning ordinance. In effect, it argued that the effect of the variances was to rezone the rear portion of the property from residential to commercial, and that changes in the intensity of the use of the land and traffic were to be considered during the site plan review of the development. The board determined that the prior variances did not authorize operation of a supermarket or a parking lot in a residential zone accessory to such use. In its resolution, the board stressed that its grant of the 1956 and 1968 variances reflected “only the quality, design and intensity of the proposed” department store. The board believed that the operation of a supermarket presented marked differences in traffic patterns, truck deliveries, and hours of operation. It concluded that the supermarket activities were not “similar in nature, kind or use intensity” and were not permitted under the variances previously granted.

The supermarket brought an action in lieu of prerogative writ. The Law Division reversed the board’s decision and reasoned that prior variances were “not personal to the owner to whom it [was] granted but [were] available to the grantee’s successors.” The Law Division also held that the supermarket was not required to show that its operations were “similar in intensity of use” to those of its predecessor in title. The Appellate Division reversed and found that in granting the original variances, the board only considered the specific enterprise proposed by the department store in its application. A use variance “is an official quasi-legislative, quasi-judicial determination that the use or structure allowed is not offensive to the [zoning] ordinance in the broad context of the particular circumstances.” Use variances are appropriate only in exceptional cases. The grant of a use variance is predicated upon the thesis that the “development of [the] site in the community…is particularly appropriate for that very enterprise.” Any proposed significant change or alteration in the use of a property requires further consideration by a board of adjustment. Here, where the board found that the use of the property proposed by the supermarket constituted a substantial intensification of the use permitted under the prior variances, the board could reasonably find that the proposed change of use was substantial and warranted further review through an application for a variance.


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