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Wawa, Inc. v. The Zoning Board of Adjustment of the Township of Old Bridge

A-2620-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; VARIANCES — It is not enough that a land use board’s records suggest that a property itself was particularly well fitted for a proposed use because an applicant has the burden to establish satisfaction of the positive criteria for uses that are not inherently beneficial.

A business with a leasehold interest in real property sought preliminary and final site plan approval with bulk and use variance relief to construct a convenience store and gasoline filling station. The property was located in an office general zone which did not permit such uses. At a hearing, testimony was given that the property was particularly suited for such uses; however testimony also suggested that increased traffic would be generated at and around the proposed site, creating vehicle stacking and merger problems. The board denied the application because of the significant traffic impacts and because the proposed uses were not inherently beneficial to the community. The zone already had an abundance of convenience stores, filling stations, and other retail uses.

The convenience store filed an action seeking a reversal of the board’s decision. The lower court reversed the board’s denial of the land use application. The lower court held that the proposed development would have little or no negative impact on the surrounding properties, and that a variance could be granted to the business without substantially impairing the intent and purpose of the zone plan and zoning ordinance. The Court held that the board’s decision was arbitrary, capricious, and unreasonable, and reversed the board’s denial.

On appeal, the Appellate Division reversed the lower court and reinstated the zoning board’s resolution denying the land use application. The Court found that, under law, it was not enough that the record suggested that the property itself was particularly well-fitted for the proposed use. It noted that the board had found that a convenience store with a gasoline filling station was not needed in the community, and that the lower court had not addressed the issues of community need, or whether another viable location existed. Therefore, the Court found that the business was obligated to, but failed to, satisfy its complete burden of establishing the positive criteria for a uses that were not inherently beneficial.

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