GETTY PETROLEUM MARKETING, INC. v. CITY OF BAYONNE ZONING BOARD OF ADJUSTMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5204-06T15204-06T1

GETTY PETROLEUM MARKETING, INC.,

a Corporation of the State of

Maryland,

Plaintiff-Appellant,

v.

CITY OF BAYONNE ZONING BOARD OF

ADJUSTMENT and QUICKCHEK FOOD

STORES, INC.,

Defendants-Respondents.

__________________________________

 

Argued April 30, 2008 - Decided

Before Judges Wefing, Parker and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, No. L-5433-06.

George J. Kroculick argued the cause for

appellant (Duane Morris, attorneys; Mr.

Kroculick, of counsel and on the brief;

Michael J. McCalley, on the brief).

Richard N. Campisano argued the cause for

respondent City of Bayonne Zoning Board of

Adjustment.

Elaine Berkenwald argued the cause for

respondent Quickcheck Food Stores, Inc.

(Law Offices of Dennis J. Oury, attorneys;

Mr. Oury, of counsel; Ms. Berkenwald and

Ericka Ravettine, on the brief).

PER CURIAM

Plaintiff Getty Petroleum Marketing, Inc. ("Getty") filed an action in lieu of prerogative writs challenging a resolution of defendant Bayonne Zoning Board of Adjustment ("Board") granting use variances to defendant QuickChek Food Stores, Inc. ("QuickChek"). The trial court entered judgment for defendants, and plaintiff has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The property in question is comprised of two adjoining lots which, together, constitute an L-shaped parcel nearly one acre in size. It is located between Broadway and Avenue E in Bayonne and has frontage both on East 52nd Street and East 53rd Street. The lot that fronts on East 53rd Street is located in Bayonne's C-2 Community/Commercial zone and the lot that fronts on East 52nd Street is located in the city's R-2 Detached/Attached Residential zone.

On the 53rd Street side there is a furniture store warehouse, a shopping center, a bus depot, an auto repair business and other commercial properties. On the 52nd Street side the block is comprised of two-family homes. The entire parcel is currently occupied by a trailer park, which is not a permitted use in either zone. Vehicle access in and out of the trailer park is by way of a driveway on the 52nd Street side. On the 53rd Street side, the parcel is approximately five hundred feet from Interchange 14A of the New Jersey Turnpike Extension. 53rd Street is heavily traveled in this area because of its proximity to the Turnpike.

QuickChek proposed to purchase these two lots and convert them from the present trailer park to a gasoline station combined with a five thousand square foot convenience store. The site would be open for business seven days a week, twenty-four hours a day. The convenience store was proposed to be placed primarily on the lot located in the R-2 zone and the gasoline station would be placed on the lot located in the C-2 zone. The station would have ten fueling pumps. Although it would sell diesel fuel, it would do so only for automobiles. Trucks would not be permitted to refuel at the station.

A gasoline station is not a permitted use in either zone. Thus QuickChek required use variances for both the convenience store and the gasoline station. It did not require any dimensional variances.

QuickChek presented a traffic expert who noted the heavy traffic volume on 53rd Street during the morning and afternoon rush hours. He expressed the opinion that the presence of the QuickChek facility would only produce a two to five percent increase in traffic volume. He also noted that because the facility would not have an entrance on 52nd Street, there would be a reduction in traffic on that street and an increase in available parking for the residents of the street. An objector presented a traffic expert who disputed the opinions of QuickChek expert.

QuickChek also presented a planning expert who expressed the opinion that the site was particularly well-suited to accommodate the proposed uses. He noted both the volume of automobile traffic and the proximity to the Turnpike as particular reasons why a gasoline station was appropriate at the site. He noted that the convenience store was not intended to accommodate full-scale shopping but to serve as a convenience for a motorist who wished to get a cup of coffee or snack or small items such as a container of milk. He also noted that because of the proximity to the Turnpike, 53rd Street did not function as a local, neighborhood street but rather as a "collector road" for traffic entering and exiting the Turnpike.

In addition, he noted that at the present time, the trailer park fronted directly upon 52nd Street, with no set-back or buffering. The convenience store was to be set back approximately twenty feet from 52nd Street and would have grass, bushes and other landscaping to serve as a buffer. It would thus, in his opinion, be less intrusive into the residential zone than the existing trailer park. He also noted that the existing uses on 53rd Street, such as the large furniture warehouse, made residential development of the 52nd Street lot unlikely.

Plaintiff presented an expert who disagreed. According to Getty's expert, the proposed use was inappropriate because it would change the 52nd Street block from primarily residential to two-thirds commercial. He also considered the proposed use a more intense use than the existing trailer park although he did concede it would alleviate some of the parking shortage.

Generally, decisions made by a zoning board are presumptively valid, and should be reversed only if arbitrary, capricious, and unreasonable. Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 166-67 (1992). Courts must recognize that local officials, who are familiar with a community's characteristics and interests, are best equipped to pass on variance applications. Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965). Boards must be allowed latitude in exercising their delegated discretion because of their knowledge of local conditions. Ibid. "[C]ourts ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58-59 (1999).

Because of the "strong legislative policy favoring land use planning by ordinance rather than by variance," a board's grant of a use variance, also called a (d) variance, "will always be the exception rather than the rule." William M. Cox, New Jersey Zoning and Land Use Administration 7-4.1 at 164 (2008) (citing Sica, supra, 127 N.J. at 156; Funeral Home Mgmt. v. Basralian, 319 N.J. Super. 200, 207 (App. Div. 1999); Stop & Shop Supermarket Co. v. Bd. of Adjustment of Springfield, 315 N.J. Super. 427, 434 (App. Div. 1998), rev'd on other grounds, 162 N.J. 418 (2000); Elco v. R.C. Maxwell Co., 292 N.J. Super. 118, 126 (App. Div. 1996); Feiler v. Fort Lee Bd. of Adjustment, 240 N.J. Super. 250, 255 (App. Div. 1990), certif. denied, 127 N.J. 325 (1991); Chesterbrooke Ltd. P'ship v. Planning Bd. of Chester, 237 N.J. Super. 118, 128 (App. Div. 1989), certif. denied, 118 N.J. 234 (1989)). Therefore, "although deference must be given to any decision by a board of adjustment, a reviewing court gives less deference to a grant than to a denial of a use variance." Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75 (App. Div. 2006). A reviewing court should examine the record to determine if the "'board's decision comports with the statutory criteria and is founded on adequate evidence.'" Ibid. (quoting Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 385 (1990)).

Because of the strong policy in favor of zoning by ordinance rather than by variance, there are definite limits on the authority of a local board to grant a use variance. Such variances may be granted where:

(1) "special reasons" exist for the variance (the "positive criteria"); and (2) the variance can be granted without substantial detriment to the public good and will not substantially impair the intent and purposes of the zone plan and zoning ordinance (the "negative criteria"). N.J.S.A. 40:55D-70(d) . . . .

[Elco v. R.C. Maxwell Co., 292 N.J. Super. 118, 127 (App. Div. 1996) (citations omitted).]

Thus, a zoning board must apply the two-part test, and find both positive criteria and negative criteria in order to justify the grant of a use variance. The trial court was thus called upon to determine whether the Board's findings meet the appropriate criteria and are supported by adequate evidence in the record.

Of the three categories of circumstances that may constitute the requisite "special reasons," the only one applicable to the instant matter is the third:

(3) where the use would serve the general welfare because the proposed site is particularly suitable for the proposed use.

[Saddle Brook Realty, supra, 388 N.J. Super. at 76 (internal quotation marks omitted).]

We have previously set forth the evidence that QuickChek presented to the Board over three days of hearings to demonstrate why this site was particularly suited to the proposed use, such as its size, its proximity to the Turnpike, and the difficulty in placing new residential development on the property fronting on 52nd Street even though zoned as residential.

Plaintiff, who operates another gasoline station approximately two blocks away, contended that QuickChek could place its facility in a different location within the City which did not have such high traffic volume. In effect, it did not dispute the need for such a facility, it just wished it to be placed elsewhere. QuickChek argued persuasively that it was just such high volume traffic that made the site suitable for the proposed use.

The Board also noted with respect to the positive criteria that the proposed use would be an aesthetic improvement over the existing trailer park. Aesthetics alone may not be used to justify the grant of a use variance. Burbridge v. Governing Body of Mine Hill, 117 N.J. 376 (1990), is not to the contrary. There, the Supreme Court upheld the expansion of a preexisting, nonconforming use because the expansion would have the result of lessening the aesthetic intrusion of an automobile repair shop and junk yard. The Court carefully noted that "ambience alone can seldom be a proper basis for special reasons." Id. at 392. Here, as we have noted, the Board did not base its decision only on ambience or aesthetics.

We agree with the trial court that the Board did not act in an arbitrary, capricious or unreasonable manner when it accepted QuickChek's evidence and arguments with respect to satisfying the positive criteria.

We turn now to negative criteria. There are two prongs to the negative criteria requirement. First, the applicant must show that the variance can be granted "without substantial detriment to the public good." N.J.S.A. 40:55D-70(d). Second, the applicant must meet "an enhanced quality of proof," and the Board must make "clear and specific findings" that the variance "is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici v. BPR Co., 107 N.J. 1, 21 (1987).

Regarding the first prong, QuickChek's showing of special reasons affects the analysis of the negative criteria because "the determination of detriment to the public good is of necessity proportional to the degree to which the positive criteria have been satisfied." Cox, supra, 8-2.1 at 228.

Here, the Board found that granting the variance "will not cause detriment to the public health, safety and welfare," because other non-residential uses are present in the neighborhood, because the use "will not create a negative social impact" but will "revitalize an under[-]utilized site," because it will add "more green space and buffering" than the present use, because the "mass and coverage of the proposed use are less intense" than the current use, and because the use will "result in improved aesthetics and architectural upgrade of an old outdated trailer park." The Board did find that increased traffic would present a detriment to the public good, a finding consistent with the admission of QuickChek's traffic expert that the traffic level would fall to "F," or "failure." The Board felt that the problem should be mitigated by directing the additional traffic to the 53rd Street side, in the commercial zone. The Board's finding that the detriment would be "slight" met the first prong of the negative criteria.

In order to meet the second prong of the negative criteria requirement, "[t]he applicant's proofs and the board's findings . . . must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Saddle Brook Realty, supra, 388 N.J. Super. at 79 (quoting Medici, supra, 107 N.J. at 21).

We also find sufficient support in the record for the trial court's finding that the Board's determination of the negative criteria was not arbitrary, capricious, or unreasonable. The Board found, for instance, that the proposed facility would further the goal of the master plan to create a desirable visual impact at the entrance to the community. It is not up to this court, just as it was not up to the trial court, to come to a different conclusion. The specifics of creating an "attractive gateway location" will be addressed at the subsequent application for site plan approval.

Further, by providing no vehicular access from 52nd Street, the proposed use will lessen automobile traffic on 52nd Street and make some parking available for the residents. It thus furthers an appropriate goal of the zoning ordinance.

 
Plaintiff bore the burden of proof before the trial court that the Board's approval of QuickChek's application was arbitrary, capricious or unreasonable. We find no basis to overturn the trial court's conclusion that plaintiff failed to carry its burden.

The order under review is affirmed.

(continued)

(continued)

11

A-5204-06T1

July 28, 2008