RACEWAY REALTY, LLC v. EDISON TOWNSHIP ZONING BOARD OF ADJUSTMENT

 

(NOTE: The status of this decision is Published.)

                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-1271-16T4

RACEWAY REALTY, LLC,

           Plaintiff-Appellant,

     v.

EDISON TOWNSHIP ZONING BOARD OF
ADJUSTMENT and THE TOWNSHIP OF
EDISON,

          Defendants-Respondents.
___________________________________

           Argued May 15, 2018 – Decided May 29, 2018

           Before Judges Fisher, Fasciale and Sumners.

           On appeal from Superior Court of New Jersey,
           Law Division, Middlesex County, Docket No. L-
           2827-15.

           Paul H. Schneider argued the cause for
           appellant (Giordano, Halleran & Ciesla, PC,
           attorneys; Paul H. Schneider and Afiyfa H.
           Ellington, on the brief).

           Ted Del Guercio, III, argued the cause for
           respondent Township of Edison (McManimon,
           Scotland & Baumann, LLC, attorneys; Ted Del
           Guercio, III, on the brief).

           Bhavini Tara Shah argued the cause for
           respondent Edison Township Zoning Board of
           Adjustment (Law Office of Bhavini Tara Shah,
           attorneys, join in the brief of respondent
           Township of Edison).

PER CURIAM

     Plaintiff Raceway Realty, LLC, which owns and operates a gas

station   in   Edison,    appeals   a   trial    court   decision   to     leave

undisturbed defendant Edison Township Zoning Board of Adjustment's

determination that plaintiff needed to seek site-plan approval

when adding two gasoline pump dispensers. The appeal chiefly turns

on whether this circumstance falls within the "small additions and

changes" exception to a general requirement, imposed by an Edison

ordinance, that all development applications require site-plan

approval. Judge James P. Hurley found this exception inapplicable

– because it does not apply to conditional uses, such as Raceway's

gas station – and that site-plan approval was required. We agree

and affirm.

     Based on evidence and testimony adduced at a one-day hearing,

Judge Hurley found that Raceway's Route 1 gas station is located

in a zoning district where gas stations constitute conditional

uses. Exxon Mobil Corporation previously owned the property; in

divesting itself of some of its New Jersey assets, Exxon sold the

property to Blackstone Petroleum in 2012. This divestiture plan

called for installation of new underground storage tanks and

renovation     of   the   pump   islands.       Soon   after   applying       for


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construction permits, Blackstone conveyed the property to Raceway.

Construction permits were approved but when it was learned that

two gasoline dispensers were added to "the front concrete apron

of the existing building," a zoning official – concluding Raceway

was engaged in more than a simple renovation or replacement of

existing pumps – prohibited use of these additional pumps and

advised that site-plan approval was necessary. That determination

ultimately inspired this action in lieu of prerogative writs.

     Judge Hurley determined that because Raceway's use of the

property constitutes a conditional use, not all of the requirements

for the small-additions-and-changes exception to the site-plan

approval requirement1 could be met. Specifically, Judge Hurley



1 Edison Ordinance 36-8.1 imposes a general requirement for site
plan approval but also provides, in subsection (b)(1), that site
plan approval isn't required if the following three criteria are
found to exist:

          (a) The proposed addition is less than ten
          (10%) percent of the existing gross floor area
          or one thousand (1,000) square feet of floor
          area of the building(s) on the lot, whichever
          the lesser;

          (b) No more than ten (10) new parking spaces
          are required for the addition or an increase
          of ten (10%) percent of the existing number
          of spaces, whichever the lesser;

          (c) A change of occupancy and/or a change of
          use, other than a conditional use as set forth
          in the zoning ordinance; provided, that the


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recognized that this exception distinguishes between permitted

uses and conditional uses. He also concluded that not all three

of 36-8.1(b)(1)'s requirements could be satisfied because the

language of subsection (c) – the phrase emphasized in footnote 1

– applies only to a change of occupancy or a change of use "other

than a conditional use." He rejected the contention that this

"other than" language related only to changes of use and not

changes of occupancy.2

     Raceway appeals, arguing:

          I. THE TRIAL JUDGE ERRED IN AFFIRMING THE
          ZONING BOARD'S INTERPRETATION OF THE TOWNSHIP
          ORDINANCE SECTION 36-8.1 AS TO REQUIRE SITE
          PLAN REVIEW FOR ALL PREEXISTING CONDITIONAL
          USE LOTS.

          II. THE TRIAL JUDGE ERRED IN AFFIRMING THE
          ZONING BOARD'S DECISION BECAUSE IT WAS
          ARBITRARY, CAPRICIOUS AND UNREASONABLE.

          existing building and new use comply with all
          of the above and the structure and lot comply
          with all of the zoning district regulations,
          inclusive of parking, buffer areas and
          location and size of signs for a change of use
          and/or change of occupancy, and a written
          report from the site plan committee that
          adequate landscaping exists or is proposed.

          [Emphasis added.]
2
 Judge Hurley rejected Raceway's estoppel argument – based on the
issuance of the construction permits – because Raceway still
possessed an opportunity for relief through an application for
site-plan approval. The judge did not determine – but left for a
future prerogative writs action – the possibility that defendants
might be estopped upon the denial of site-plan approval.

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We reject these arguments and affirm substantially for the reasons

set forth by Judge Hurley in his cogent and well-reasoned oral

decision.

     Affirmed.




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