Talbott, J.c.c., Temporarily Assigned.
This is a prerogative writ action brought by Woodland Civic Association, an association of taxpayers residing in the Township of Cherry Hill, to review the actions of the zoning board of adjustment (board) and the Township Council of Cherry Hill in granting a use variance to Brick Homes, Inc. (Brick) pursuant to N.J.S.A. 40:55-39(d).
This matter comes before the court on cross-motions for summary judgment. In the alternative, plaintiff has moved that the case be remanded to the board for further proceedings. The court has before it a record of proceedings before the board taken December 4, 1975, together with the interrogatories on file and copies of the petition of appeal, affidavit of service of notice, notice to property owners, resolution of the board of adjustment, resolution of the governing body, and resolution of the governing body and board of adjustment relating to a previous zoning application for the subject site.
Based upon the extensive record now before it the court finds the following facts.
The subject property is located at 601 Longwood Avenue, Plat 8, Block 104, Lot 1 of the Tax Map of the Township of Cherry Hill. The tract is situated in a district zoned R-2, residential. It lies adjacent to Route 38, a heavily traveled state highway. Next door sits a busy McDonald's restaurant and across the street is located another fast food restaurant, now closed. Nearby is located a Two Guys department store and other commercial and industrial establishments.
The property is presently occupied by an unsightly, deteriorating warehouse used by Brick for office and storage
purposes. The warehouse exists as a prior nonconforming use.
Brick first applied for a variance for this property in November of 1972, Appeal No. 1407. At that time the proposed use was as construction office and showroom. It was apparently Brick's intent to use the structure for a home remodeling business. After public hearing the Board granted the requested variance, but the township council reversed the board's action and Brick appealed to the Superior Court. In a letter opinion the judge presiding over that case found that the question was a close one since the subject property is across from and adjacent to commercial uses and is quite near Route 38, but held that the question was one whose resolution was better left with the local governing body. Summary judgment was therefore entered against Brick.
At the time the first suit was filed the property was zoned in part as B-2 and in part as R-2. Sometime thereafter the entire property was zoned R-2. Brick once again filed suit against Cherry Hill Township to contest the validity of the new zone classification. After suit was filed settlement negotiations commenced and it was agreed by the parties that Brick would dismiss the suit, without prejudice, pending application before the board for a variance for use of the property as an office building rather than the initial proposed use of construction office and showroom.
Pursuant to that stipulation of dismissal Brick petitioned the board for a "d" type variance on November 19, 1975. All property owners within 200 feet of the subject tract were duly served with notice of the appeal, as required by N.J.S.A. 40:55-44, on November 24, 1975. The hearing on the petition was set for December 4, 1975.
By letter dated December 1, 1975 plaintiffs requested a continuance in order that they might have adequate time to secure counsel and develop a case in opposition to the requested variance. This request was orally renewed at the commencement of the December 4, 1975 hearing and was denied by the board. At the hearing itself Brick presented
the testimony of Brick's owner and an expert in real estate appraisal. Photographs of the existing structure and the surrounding area and drawings and renderings of the proposed structure were submitted as evidence in support of the application. Those objecting to the variance cross-examined Brick's witnesses, and at the conclusion of the testimony were afforded the opportunity to make statements in opposition to the variance. The opposition centered on the possibility that commercial vehicles, construction equipment and building materials would be parked or stored on the premises. Although the board indicated that such uses would not be permitted, neighboring residents still feared that Brick would not abide by the conditions attached to the variance.
By resolution dated December 18, 1975 the board approved the variance, with conditions. By resolution dated January 12, 1976, after hearing arguments from members of the association and from plaintiff's counsel, ...