Bischoff, Morgan and King.
Plaintiffs, a corporation and its principals, engaged in the storing, selling and distribution of liquid propane gas (hereinafter LPG) appeal from the trial judge's affirmance of a denial of their application for a variance, pursuant to N.J.S.A. 40:55-39(d), to permit use of their land as a storage facility for LPG. Their announced intention was to erect four 30,000-gallon tanks for that purpose on the subject premises. The principal issue raised concerns the extent to which state approval of the site as safe for the purpose forecloses municipal disapproval thereof as being unsafe.
The subject premises, owned by plaintiffs, consist of approximately 11 acres of unimproved land in Maple Shade Township lying between Route 73 on the west and the Pennsauken Creek on the east. The tract is of an irregular shape, varying in depth from 450 to 600 feet, with the westerly 300 feet zoned Highway Commercial (HC) and the remainder zoned Residential (RA). The zoning ordinance does not permit storage of LPG anywhere in the township.
Approximately 80% of the tract is officially mapped as wetlands by the State Department of Environmental Protection. No buildings, commercial or residential, are permitted, even if feasible, on the portions so mapped since they would interfere with the flow of water. The LPG
storage tanks would be permitted only because they are to be placed on pilings and, standing four to five feet from the surface of the ground, would not interfere with the water's ebb and flow. Reference to an aerial photograph of the site confirms its classification as wetlands; the larger portion of the parcel resembles marshland, is obviously subject to periodic flooding and is clearly unsuitable to any kind of permanent structure. The evidence before the board of adjustment clearly establishes this fact.
A portion of the land was previously used as a dump. In its initial application for the variance plaintiff proposed to place their tanks on the filled portion thereof consisting largely of debris which accumulated from years of dumping.
Following a hearing during which it was disclosed that eight years before the application a subsurface debris fire had burned and smoldered for over eight weeks, and that locating the tanks on such fill would pose hazards to the neighborhood, plaintiffs in their second application changed the proposed location of the tanks on the land so that they would sit on virgin soil and at a distance from the site of the previous debris fire. The evidence at the second hearing was uncontradicted that the tanks would, in fact, stand on virgin soil. The uses immediately adjacent to the subject 11-acre tract include an automobile junk yard, a used truck dealership and an automobile body shop.
Despite the zoning ordinance, plaintiffs presently operate their business, as a nonconforming use, in Maple Shade Township on a one-acre tract of land located on Route 38 within 600 feet of its junction with State Highway Routes 73 and 41. That tract presently hosts a storage capacity of 7500 gallons of LPG and is immediately adjacent to a large Howard Johnson Motel, a restaurant and other commercial establishments. The application under consideration was motivated by a perceived need to enlarge storage capacity so as to permit stockpiling LPG during the slack periods of demand in the summer months to meet customer need (about 2500 of them) during the winter months. Plaintiffs
advised the board of industry-wide experience with shortages of LPG during those periods of imperative need and sought to cope with that problem by enlarging their ability to accumulate reserves to avoid such shortages.
The township fire chief testified that, in his opinion, the proposed location for the tanks was a safe one. In fact, he took the view that the new location was safer than the one from which plaintiffs had been operating for years. "I'd like to see it get out of where it's at. I'd like to see it move." This view was prompted by the proximity of plaintiffs' present site to the sizeable Howard Johnson Motel, a taproom, clothing store and similar other business establishments.
Sergeant Clifford Melder, a New Jersey State Police officer assigned to oversee the safety of LPG loading and transportation, testified that the proposed site is safe for those activities and superior to that of plaintiffs' present location. ...