On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
King, Brody and Skillman. The opinion of the court was delivered by King, P.J.A.D.
This case involves the enforcement of an ordinance prohibiting carriers of new motor vehicles to load and unload in a public street during deliveries to a car dealer. This is an appeal from a judgment adverse to the car dealer who sought a variance from the ordinance. Appellant, Apple Chevrolet, Inc. (Apple), the car dealer, contends that the Law Division judge erred in (1) not reversing the Zoning Board's denial of a variance application, (2) disregarding the contention that enforcement of the loading and unloading ordinance improperly impinged on a permitted land use, (3) rejecting the argument of facial unconstitutionality, and (4) rejecting the argument that the ordinance was enforced selectively and unconstitutionally.
This is the dispute's factual background: The plaintiff Apple sells new and used automobiles at 29-00 Broadway, Fair Lawn Borough. Apple has conducted business there since 1981. That location has been an automobile dealership since 1972, operated either by Apple or its predecessors.
On March 26, 1986 Fair Lawn Borough issued a summons to Apple charging it with unloading vehicles on a public street in violation of a Borough Ordinance § 26-8.1d passed in 1966, which provided:
Loading and Unloading of Motor Vehicles. Motor vehicles carriers shall be loaded and unloaded only on the premises of a new car dealer and then only between the hours of 8:00 a.m. and 9:00 p.m. Monday through Friday. It shall be a separate requirement that sufficient space be set aside for this activity so as not to encroach on the requirements of off-street parking. In no event shall motor vehicle carriers be loaded or unloaded in any public street.
This ordinance was printed and codified as part of the Borough's Zoning Ordinance.
This was the first such summons issued to Apple. Apple pled not guilty. The Fair Lawn Municipal Court judge deferred deciding the case. The judge recommended that Apple apply to the Fair Lawn Borough Board of Adjustment (Board) for a variance from the ordinance.
Apple then applied to the Board for a variance claiming an invalid exercise of the police power. In the application Apple stated that
During the entire time period in which the location at issue has been used as an automobile dealership, the delivery of vehicles . . . has been accomplished off-site, in the two public streets immediately adjacent to the business premises. These deliveries have not presented a danger or inconvenience to the public for several reasons. First, the vehicle deliveries, which generally do not occur more than once a day, take only fifteen to twenty minutes to complete. Second, the streets on which the deliveries are made (29th and 30th Streets) are low traffic areas and, with the exception of one house, do not contain any residence. [Apple] . . . has not taken (and does not intend to take) deliveries on Broadway, which is also adjacent to the business premises. Finally, the vehicle deliveries do not interfere with the flow of traffic. . . .
This matter presents a situation in which the Borough's exercise of its police powers directly interferes with a zoned use of the business premises. Pursuant to N.J.S.A. 40:55D-70(c) the benefits of the deviation . . . [Apple] . . . requested far outweigh any detriment. Moreover, strict enforcement of the Ordinance would create a substantial hardship for . . . [Apple]. Moreover, as a result of . . . [Apple's] prior, non-conforming use, the Borough should be estopped from suddenly enforcing the Ordinance.
Strict enforcement of the Ordinance at issue would force . . . [Apple] . . . out of business. It is impossible for . . . [Apple] to accept on-site delivery of vehicles without creating a tremendous hazard for the customers and ...