On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Before Judges R.s. Cohen and D'Annunzio
The opinion of the court was delivered by
Plaintiff appeals from a Law Division judgment affirming the denial of plaintiff's use variance application by the Hamilton Township Zoning Board of Adjustment (the board).*fn1
Plaintiff's unimproved lot of 52,000 square feet is located in an R-10 zone at the northwest corner of Sloan Avenue and Quakerbridge Road in Hamilton Township.
In addition to single family residential dwellings on lots of at least 10,000 square feet, other principal uses permitted in an R-10 zone include: public playgrounds, public libraries, and buildings used exclusively by the federal, state or municipal government. The following uses also may be permitted as conditional uses: golf courses, hospitals, nursing homes, churches and other places of worship, public schools, conversion of single-family dwellings into offices, and child-care centers and day nurseries.
The Sloan Avenue/Quakerbridge Road intersection is a "major intersection" with traffic signals and "four lanes on each of the legs." Although plaintiff's property on the northwest corner is zoned residential, the other three corners of the intersection are designated highway commercial (HC) zones, and are intended to serve as locations for "highway oriented businesses." These include, for example, restaurants, nightclubs, department stores, bowling alleys, supermarkets, auto repair shops, and business colleges. The southwest corner of the intersection contains a Burger King and a 100,000 square foot shopping center; the southeast corner contains a liquor store and another series of commercial stores; and on the northeast corner is an Exxon service station and a 27,000 square foot shopping center.
Plaintiff applied for a use variance to construct an 8,000 square foot one-story building on the property, to be used for "retail purposes." Plaintiff sought to develop the property in conformance with the township's neighborhood commercial (NC) zone or community commercial (CC) zone, and presented a "conceptual" site plan to the board. Plaintiff's attorney explained that "if the use variance is granted, then we'll  perfect a site plan that will meet your comments close as possible to meeting the requirements of your neighborhood commercial zone . . . ." The "conceptual plan" showed eight stores occupying the proposed building and provided for fifty-four parking spaces. While it is not clear what the specific stores would be, plaintiff's attorney stated they would consist of any of the uses permitted in the NC zone, with the exception of a WaWa/7-Eleven type convenience store.
Under the township's zoning ordinance, the purpose of the NC zone is to establish
a business district adjacent to residence districts in which such uses are permitted as are normally required for the daily local business and/or convenience needs of the residents of the immediately surrounding residential areas.
Permitted uses include grocery, hardware, candy, stationery and drug stores; laundromats; tailoring, shoe repair and barber shops; and luncheonettes, bakeries and delicatessens, etc.
The CC district is intended to
serve a larger residential population. As such, the areas are almost entirely developed and are located to take advantage of relatively good accessibility from the developed concentrations within the township.
In addition to those uses permitted in the NC zone, the CC district allows restaurants and bars, banks, stereo and TV stores, offices (business and professional), and funeral homes.
Both the NC and CC zones require a minimum buffer of 10 feet along any common property line with a residential district. The HC zone requires a 50 foot buffer when bordering a residential district. NC and CC uses are permitted in HC zones. However, when that is the case, the use must also comply with the requirements of the HC zone.
Plaintiff called three witnesses at the August 8, 1989 hearing. Ron Curini, a real estate appraiser, opined that, in light of the three other corners of the intersection, the residential zoning of plaintiff's property was an "improper zoning." He stated, "it is almost common sense that no one is going to build houses on that particular property." Curini further expressed his beliefs that the "residential use has in effect . . . diminished the value of the property tremendously  as compared to the rest of the neighborhood," and that the property "borders on [economic] inutility." He testified that the "variances should be granted" because the proposed use was "compatible with the uses within the area . . . [and would] not have any negative effect upon the area." Curini's testimony "assumed" that "there would be a tremendous amount of buffering" separating plaintiff's proposed use from the residential zone.
When asked about the possibility of having a "less intense" use of the property, such as an office or ...