PAKS FAST SERVICE INC v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MAHWAH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1948-10T2

PAKS FAST SERVICE, INC.,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT

OF THE TOWNSHIP OF MAHWAH

and PILOT CORPORATION,

Defendants-Respondents.

___________________________________

Telephonically argued June 6, 2011

Decided August 23, 2011

Before Judges Fuentes, Ashrafi and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No.

L-904-10.

Kevin J. Moore argued the cause for appellant (Sills Cummis & Gross P.C., attorneys; Mr. Moore, of counsel and on the brief).

Ben R. Cascio argued the cause for respondent Mahwah Township Zoning Board of Adjustment.

James L. Lott, Jr. argued the cause for respondent Pilot Corporation (Riker Danzig Scherer Hyland & Perretti, LLP, attorneys;

Mr. Lott, of counsel and on the brief;

Scott L. Carlson and Diane N. Hickey, on the brief).
 

PER CURIAM

Plaintiff Paks Fast Service, Inc., which is a business competitor of defendant Pilot Corporation, appeals from a November 4, 2010 judgment of the Law Division dismissing its prerogative writs complaint. The Law Division concluded that defendant Zoning Board of Adjustment of the Township of Mahwah (the Board) did not act arbitrarily, capriciously, or unreasonably in granting to Pilot a conditional use variance to rebuild an existing truck stop as a standard gas station and convenience store on State Highway 17. The variance was needed because of a zoning ordinance that regulates how close a gas station can be to certain public facilities, and Pilot's property is close to Mahwah High School.

Plaintiff's argument on appeal is narrowly focused on whether the Board and the trial court correctly applied the second part of the negative criteria required for the granting of any variance under N.J.S.A. 40:55D-70, namely, that the variance does not substantially impair the intent and purpose of the zoning plan or ordinance. Plaintiff cites action taken by the Township Council while Pilot's development application was pending to argue that the variance is at odds with a restrictive zoning ordinance adopted by the Township. Having considered plaintiff's argument and the factual record presented, we now affirm the judgment of the Law Division.

I.

Pilot is the lessee of 4.5 acres on Route 17 South in Mahwah. The property also has frontage on Ridge Road and is within 200 feet of public property on which Mahwah High School is located. Gasoline stations are a conditionally permitted use in the Township's B-40 highway business zoning district, where Pilot's property is located. Pilot was operating a truck stop and fueling station on the property with access to both Route 17 and Ridge Road. The facility had several diesel fuel dispensers, a truck scale, parking spaces, and two buildings containing a convenience store, restaurant, truck repair shop, and several motel rooms. The property contained no landscaping and had fallen into disrepair.

In April 2007, Pilot filed an application with the Planning Board of the Township of Mahwah (the Planning Board) for site plan approval to remodel and improve the property. It proposed razing the deteriorated truck stop and replacing it with a more traditional gas station facility, including gasoline and diesel fueling pumps, truck and car parking spaces, and a convenience store. Pilot proposed to close the Ridge Road access to the property and build a four-foot "board on board" fence along the Ridge Road frontage. Also, it would add landscaping, screening, and buffering along that side of the property.

At the time that Pilot presented its initial proposal to the Planning Board, the Township's zoning ordinance prohibited gas stations or vehicle repair shops within 200 feet of any schools and certain other public facilities that were located along the same street and on the same block. Because Pilot's property is on a different block from Mahwah High School, the restriction did not apply to the use of the property as a truck stop or to Pilot's development proposal.

While Pilot's application was pending before the Planning Board, however, the Township Council introduced a new Ordinance 1606 that would amend and enhance the distance restriction as follows:

No gasoline station or vehicular repair service shop shall be located on property within five hundred (500') feet of the following uses: schools, playgrounds, churches, hospitals, public libraries or institutions for dependent children.

Under the amended ordinance, the proposed development would no longer be in compliance with zoning regulations because its location on a different block from the public use would not exempt it from the distance restriction.

On January 28, 2008, the Planning Board passed a resolution favorably reporting on Ordinance 1606's consistency with the Township's master plan and recommending its adoption. On the same date, the Planning Board denied without prejudice Pilot's application for site plan approval after Pilot declined to consent to an extension of time for the Planning Board review of its application.

At a public hearing on February 21, 2008, the Township Council discussed and adopted Ordinance 1606. Counsel for both plaintiff and Pilot appeared at the meeting and presented argument and factual information for the governing body's consideration.

After Ordinance 1606 was adopted, Pilot filed an application in August 2008 before the Board of Adjustment for a variance under N.J.S.A. 40:55D-70d(3) to deviate from the 500 foot restriction.1 The revised application was identical in most respects to the initial development proposal before the Planning Board, but it had some changes, the most significant for the purposes of this appeal being an eight-foot, "swimming-pool-grade," chain link fence along the Ridge Road frontage. Again, the Ridge Road access to the property would be closed.

The Board's hearing on Pilot's application was conducted over twenty dates and finally culminated in approval of Pilot's development proposal fifteen months later, on November 24, 2009. The Board memorialized its decision in a detailed, comprehensive resolution dated January 6, 2010.

Plaintiff promptly filed an action in lieu of prerogative writs in the Law Division challenging the Board's decision. On June 10, 2010, the Law Division denied plaintiff's application for a stay to restrain Pilot from proceeding with construction of the new facility. Construction was completed and business operations began at Pilot's new gas station and convenience store in September 2010.

The Law Division held a one-day trial on September 24, 2010, and issued a written decision on October 12, 2010, followed by its judgment dated November 4, 2010. The court denied plaintiff's challenge to the d(3) conditional use variance. Plaintiff filed a timely appeal before us.

II.

Decisions of zoning boards to grant or deny applications constitute quasi-judicial decisions of municipal administrative agencies, Willoughby v. Plan. Bd. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997); Kotlarich v. Mayor of Ramsey, 51 N.J. Super. 520, 540-42 (App. Div. 1958), and are presumed to be valid, Cell S. of N.J. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002); Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 285 (1965). Our review is limited to determining whether the decision of the local board is "supported by the record and is not so arbitrary, capricious or unreasonable as to amount to an abuse of discretion." New Brunswick Cellular v. Bd. of Adj. of S. Plainfield, 160 N.J. 1, 14 (1999); Smart SMR of N.Y. v. Bor. of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1988). A court must not substitute its own judgment for that of the board unless there is a clear abuse of discretion. See Cell S. of N.J., supra, 172 N.J. at 82. The burden is on the challenging party to show that the board s decision was arbitrary, capricious, or unreasonable. See Smart SMR of N.Y., supra, 152 N.J. at 327; Kramer, supra, 45 N.J. at 296.

The crux of plaintiff's arguments on appeal is that the Board failed to adhere to the decision of the Township Council when it adopted Ordinance 1606 placing a 500 foot restriction on development of gas stations near schools. Plaintiff contends the Board was required to acknowledge that the Township Council was aware of Pilot's development application and had expressly adopted the ordinance prohibiting the intended use. Plaintiff cites Medici v. BPR Co., 107 N.J. 1 (1987), as compelling authority that a variance should not be granted where the governing body has had an opportunity to consider the proposed use and declined to permit it.

In Medici, the Court considered the standard that applies to the granting of a variance under N.J.S.A. 40:55D-70d(1) for a use that is prohibited in a zoning district. In addition to proof of the positive criteria showing "special reasons" for the variance, see id. at 9-18, the applicant must prove the negative criteria under the statute, namely, "that the variance can be granted without substantial detriment to the public good," and that "the grant of a use variance is not inconsistent with the intent and purpose of the master plan and zoning ordinances." Id. at 4. Furthermore, "an enhanced quality of proof" is required to satisfy the applicant's burden of demonstrating the negative criteria and entitlement to a variance. Ibid.

In describing proofs required to satisfy the second prong of the negative criteria, the Court stated that an applicant and the board of adjustment must "reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Id. at 21. The applicant might demonstrate, for example, that "the character of a community has changed substantially since the adoption of the master plan" or that "a variance for a use omitted from the ordinance is not incompatible with the intent and purpose of the governing body when the ordinance was passed." Ibid. The Court warned that "[r]econciliation on this basis becomes increasingly difficult when the governing body has been made aware of prior applications for the same use variance but has declined to revise the zoning ordinance." Id. at 21-22.

Several years after Medici, the Court was called upon to consider a variance under N.J.S.A. 40:55D-70d(3) for a deviation from conditions imposed on a use that is permitted in a zoning district but only upon the conditions set in the ordinance. In Coventry Square, Inc. v. Westwood Zoning Board of Adjustment, 138 N.J. 285, 287 (1994), the Court held that, a d(3) variance "need not meet the stringent special reasons standards for a commercial-use variance that we summarized in [Medici]." As to the positive criteria, the applicant must demonstrate "the site proposed for the conditional use, in the context of the applicant's proposed site plan, continues to be an appropriate site for the conditional use notwithstanding the deviations from one or more conditions imposed by the ordinance." Id. at 298. The Court stated further:

That standard of proof will focus both the applicant's and the board's attention on the specific deviation from conditions imposed by the ordinance, and will permit the board to find special reasons to support the variance only if it is persuaded that the non-compliance with conditions does not affect the suitability of the site for the conditional use.

[Id. at 298-99.]

Therefore, an applicant for a d(3) conditional use variance "must show that the site will accommodate the problems associated with the use even though the proposal does not comply with the conditions the ordinance established to address those problems." Id. at 299.

With respect to the second prong of the negative criteria, "the board of adjustment must be satisfied that the grant of the conditional-use variance for the specific project at the designated site is reconcilable with the municipality's legislative determination that the condition should be imposed on all conditional uses in that zoning district." Ibid.

Here, the Board did exactly what Coventry Square requires in considering Pilot's application and ultimately granting the d(3) variance. In its January 6, 2010 resolution, the Board stated:

[T]he site continues to be appropriate for the use notwithstanding the generally applicable conditional use standard requiring a five hundred foot separation between service stations and certain public uses, including schools, because the modified site access, proposed landscaping and fencing plan will effectively buffer and screen the site from the neighboring properties, and will provide all of the benefits of the required (or intended) spatial separation. The Board further concludes that the grant of the variance is reconcilable with the municipality's determination that the condition be imposed on the use because the proposed fencing and buffering, as well as the closing of the Ridge Road driveway, will serve to completely separate the site from the neighboring properties, including the schools, and that the proposed development will pose no significant detriment to the Township of Mahwah or the neighboring properties. The Board also finds the variance request to be reconcilable with the municipality's determination that the condition be imposed on service station uses because the existing use is a non-conforming use in B-40 zone. The proposed use is a permitted conditional use in the B-40 zone and will be consistent with the zone plan for the Borough not with standing [sic] the requested variance. In addition, the school facilities are topographically separated from the proposed use and are also separated by Ridge Road and additional land area thereby meeting the intent of the condition requiring a 500 foot separation between the uses.

The Board also concluded that remediation of the site "will provide a tangible and substantial benefit to the public and neighboring properties, including the schools."

Thus, as the Law Division concluded, the Board found that the closing of the Ridge Road access, the landscaping and buffering, and the fencing on the Ridge Road side of the property would accomplish the purpose of Ordinance 1606 by separating the gas station use from the high school. With access and visibility of the gas station only from Route 17, vehicular and pedestrian traffic on Ridge Road would not come into contact with the gas station. The Board properly concluded, in accordance with Coventry Square, supra, 138 N.J. at 299, that the site will accommodate the problems associated with the use even though it is closer than 500 feet to the school property, and that the development proposal and variance are reconcilable with the Township Council's legislative purpose in adopting the distance restriction.

The Board was fully aware of the Township Council's action in adopting Ordinance 1606 when it voted to grant the variance and approve the development. A transcript of the public meeting in which Ordinance 1606 was discussed and adopted by the Township Council was placed in evidence at the Board hearings, and a planning expert for plaintiff also testified regarding the new ordinance.

In adopting the ordinance, the Township Council did not intend to prohibit a gas station at the site under all circumstances, especially since one already existed there. Rather, the Township Council left it within the discretionary power of the Board to review any application for a d(3) variance from the 500 foot distance regulation and to determine whether the statutory criteria had been met.

Moreover, a governing body does not have power to restrict a board of adjustment from proper exercise of its authority to grant a variance. See Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 53 (1998) ("Although the governing body is the chief municipal legislative body, N.J.S.A. 40:55D-4, and is empowered to enact zoning ordinances, N.J.S.A. 40:55D-62, its power is tempered by the ability of the planning board and board of adjustment to permit deviation from those ordinances in appropriate circumstances."). A board of adjustment may not arrogate to itself the zoning power of the governing body, see Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adj., 154 N.J. 62, 78, 81 (1998); Vidal v. Lisanti Foods, Inc., 292 N.J. Super. 555, 564 (App. Div. 1996), and, in turn, the governing body may not infringe upon the powers expressly reserved by statute to the planning and zoning boards. Paruszewski, supra, 154 N.J. at 53 (citing N.J.S.A. 40:55D-20).

The Board acted consistently with its statutory power to evaluate and either grant or deny a variance authorizing deviation from a condition for use of the property. Its decision was supported by substantial evidence that Pilot's proposed development will satisfy the purpose of the 500 foot distance requirement through alternatives of fencing, buffering, landscaping, and terminating access to Ridge Road. The Board's decision was not arbitrary, capricious, or unreasonable.

1 Pilot's application also requested certain waivers, dimensional variances, and site plan approval. Those requests and approvals have not been challenged.