On appeal from the Superior Court, Law Division, Monmouth County.
J.h. Coleman, Ashbey and Landau. The opinion of the court was delivered by Ashbey, J.A.D.
[244 NJSuper Page 555] In this land-use case, plaintiff Trust Company of New Jersey (Trust Company) appeals from the dismissal of its complaint in lieu of prerogative writs against defendants Planning Board of the Borough of Freehold (Board), the Borough's Mayor and Council, and Colonial State Bank (Colonial State). By its June 1989 dismissal, the Law Division sustained the Board's grant of site plan approval to Colonial State for the construction of a temporary, and ultimately permanent, drive-in bank. The Law
Division also validated the existing construction of the temporary bank.
This matter has a tortured history. In 1986 Colonial State approached the Board and, apparently, the Mayor and Council, as the contract purchaser of four lots on the tax map.*fn1 The lots were located at the northeast corner of the intersection of two State highways, Highway # 79 and Highway # 33. At that time three of those lots, the ones closest to the intersection, were zoned B-1, the terms of which we will later detail. The fourth lot was zoned residential. Trust Company, also a bank, is located directly opposite, on the northwest corner of the intersection.*fn2
On May 5, 1986, the Mayor and Council of the Borough of Freehold passed and published an ordinance which rezoned the fourth lot (# 13) from its then residential zoning to the borough's B-1 zone, thereby including the entire corner parcel in the B-1 zone. Colonial State applied for site plan approval for its new bank, which was granted. That action was ultimately reversed on Trust Company's prerogative writs action, primarily because a Board member, James Higgins, was related to a lawyer in a law firm which represented Colonial State. In the meantime, the temporary bank had been built. Colonial's 1988 application for site plan approval for its bank was thus Colonial State's second application.
The primary substantial question before the Law Division in the present action was whether Colonial State needed a non-conforming use variance from the Board of Adjustment before it was entitled to site plan approval. See N.J.S.A. 40:55D-70d.
The following are the relevant provisions of the Freehold zoning ordinance as of 1986:
FREEHOLD ZONING ORDINANCE
19-9 B-1 Office Commercial District.
The following regulations shall apply to all B-1 Districts:
19-9.1 Principal Uses and Buildings Permitted
a. Office Commercial District facilities may include uses such as and similar to the following types: Physician, attorney, dentist, minister, chiropractor, chiropodist, osteopath, accountant, bookkeeper, architect, insurance agent, real estate broker, or other member of a similar profession or occupation.
b. The studio of a teacher of music, dancing or art.
c. The studio of a photographer.
d. Undertaking establishment.
19-9.2 Accessory Uses and Buildings Permitted. Private garages, provided such structures shall not provide space to exceed space for six automobiles, or three automobiles and three commercial vehicles of not more than two tons each in gross weight.
19-9.5 Prohibited Uses and Buildings. Any use not set forth in subsections 19-9.1 and 19-9.2, and specifically uses such as barber shops, beauty parlors and other uses generating traffic and parking and uses primarily engaged in the sale of merchandise from the premises. . . . [Emphasis added.]
19-10 B-2 General Commercial District.
The following regulation shall apply to all B-2 districts.
19-10.1 Principal Uses and Buildings Permitted.
a. The sale of retail goods such as but not necessarily limited to the following types: Grocery stores, meat and poultry stores, drug stores, variety stores, glass and aluminum stores, dry goods stores, baked good stores, packaged liquor stores and taverns, flower stores, confectionery stores, household supply stores, stationery supplies stores, haberdashery, apparel stores and department stores.
b. The provision of service establishments such as but not limited to the following types: Barber or beauty shops, clothes cleaning and laundry pick-up establishments, shoe repair shops, business and professional offices, restaurants, luncheonettes and eating places.
c. Automobile parking areas.
d. Shopping center developments containing the types of retail and service establishments as listed above, including automobile parking areas. [Emphasis added.]
The 1986 ordinance, # 975, rezoning lot # 13, provided:
WHEREAS, the Mayor and Council of the Borough of Freehold have received a formal request to re-zone property known and identified as Block 106, Lots 1, 2, 12 and 13, on the tax map of the Borough of Freehold, said property being located adjacent to State Highway # 33 and South Street [State Highway # 79] on the northeastern corner of said intersection; and
WHEREAS, the contract purchasers of said property proposed to construct a bank facility on said property; and
WHEREAS, a portion of said property is currently located in the R5 residential zone thereby rendering that portion of the property unusable for a commercial enterprise; and
WHEREAS, a portion of said property is located in the B1 zone, which zone permits commercial uses and professional uses such as a bank facility; and
WHEREAS, the Mayor and Council of the Borough of Freehold are of the opinion that the re-zoning of said property to accommodate this proposed development is in the best interests of the Borough of Freehold because the property in question is ideally suited for commercial utilization and ...