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Wawa, Inc. v. City of Vineland Zoning Board of Adjustment

A-2723-05T2 (N.J. Super. App. Div. 2007) (Unpublished)

ZONING —Where a land use board’s decision regarding a use variance is expressly predicated upon an ordinance that it found to be invalid, it becomes moot whether the land use board properly interpreted the ordinance when it made its decision on the variance application.

A retailer sought a use variance to construct a convenience store and gasoline service station within a municipality’s residential zone. The application was denied and the retailer appealed. In its appeal of the board’s denial, it also “challenged the validity of the [municipality’s] ordinance designating the property as a residential zone.” The lower court reversed the board’s denial of the use variance and remanded the matter for reconsideration. It reserved, for future adjudication, the challenge to the validity of the ordinance. Later, the lower court declared the ordinance invalid as “inconsistent with the provisions of” the Municipal Land Use Law. Specifically, it found that the way that the municipality’s ordinance was drawn, there were no permitted uses allowable for the property in question. Therefore, it ordered that the municipality enact zoning regulations for the property in question and that those regulations be “consistent with the substantive and procedural provisions of the Municipal Land Use Law” and further that the ordinance “take into consideration expert testimony and the general nature and character of all portions of the [subject property], including but not limited to, the business/commercial uses that [had] been developed along the portion of the [subject property] abutting” a major road.

The land use board reconsidered the site plan application and granted approval. The municipality did not appeal the lower court’s invalidation of the zoning ordinance. Notwithstanding the history of the matter, the municipality and its zoning board of adjustment still pursued their appeal of the denial of the use variance. The Appellate Division, however, dismissed the appeal as moot because the disputed issue was resolved with respect to the parties who instituted the litigation. According to the Court, the municipality’s “failure to appeal the [lower] court’s order invalidating the zoning scheme created by its now defunct ordinance, presumptively nullifie[d] any previous action taken by the Board predicated upon that ordinance. Stated differently, because the Board’s decision denying [the applicant’s] use variance was expressly predicated upon the invalid ordinance, the question of whether the Board properly interpreted that ordinance when it denied [the applicant’s] application [had] been rendered moot.”

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