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Sun Co., Inc. v. Zoning Bd. of Adjustment of Borough of Avalon

January 12, 1996

SUN COMPANY, INC., A PENNSYLVANIA CORP., PLAINTIFF-RESPONDENT,
v.
ZONING BOARD OF ADJUSTMENT OF BOROUGH OF AVALON, DEFENDANT-APPELLANT.



On appeal from Superior Court, Law Division, Cape May County.

Approved for Publication January 12, 1996. As Corrected March 18, 1996.

Before Judges Petrella, Skillman, and Eichen. The opinion of the court was delivered by Petrella, P.j.a.d.

The opinion of the court was delivered by: Petrella

The opinion of the court was delivered by PETRELLA, P.J.A.D.

The Zoning Board of Adjustment of the Borough of Avalon (Zoning Board) appeals from the decision of the Law Division, which rejected the Zoning Board's interpretation of an ordinance regarding the number of principal uses permitted on one property. We reverse.

Initially, the Planning Board of Avalon determined that it did not have jurisdiction to hear the application by Sun Company, Inc. (Sun) for site plan approval to redevelop a piece of property as a combination gas station and convenience store. Sun then applied to the Zoning Board pursuant to N.J.S.A. 40:55D-70b for an interpretation of the zoning ordinance. The Zoning Board determined that under its zoning ordinance two principal uses were not allowed on the same property. Thereafter, and without applying for a variance, Sun instituted an action in lieu of prerogative writ to challenge the Zoning Board's decision. The Law Division Judge reversed the Zoning Board's determination, stating that the ordinance allowed two principal uses to co-exist on one lot. The Zoning Board now appeals that determination.

Sun owns an existing gas station on Ocean Drive in Avalon, in a B-1A business district. The property presently is developed with a gas station and a three-bay service building occupying approximately 1,832 square feet of the 24,250 square foot lot. Sun proposes to demolish the entire existing gas station and build a new fueling area, with a pump island and a canopy, and to construct a mini-mart store as part of the facility. It also seeks to increase the area devoted to signs from 99 to approximately 220 square feet.

The parties agree that, standing alone, the gas station and the mini-mart each would constitute a permitted principal use as such principal uses are itemized in the B-1A zone regulations. The sole issue on this appeal is whether the combination of what would be two separate principal uses is permitted on the same lot without the necessity of a variance.

The business B-1A district requires that each individual store have a minimum of 900 square feet and a minimum frontage of 16 feet on any street. Only specified uses permitted in the zoning ordinance are allowed in the district. The itemization of those uses include single-family and two-family dwellings, as well as buildings for essential services, schools, libraries, churches, and stores and shops for the conduct of any lawful retail business. In addition, banks, theaters, offices, restaurants, and similar community services are permitted. Garages and filling stations are allowed, subject to certain itemized restrictions. Finally, the principal use category includes "Convenience stores and supermarkets."

Accessory uses permitted in the B-1A district are:

(a) Private garages and other accessory uses and structures which are customarily incidental to the principal use and do not include any activity normally conducted as a business. No accessory structure shall have cooking or toilet facilities installed therein or be used for dwelling purposes.... [emphasis supplied].

Signs are subject to specific regulations set forth in the zoning ordinance.

The applicability of the zoning regulations is expressed in general terms in § 27-5.1 of the ordinance, entitled "Conformance," as follows:

a. Except as otherwise provided in the case of non-conforming uses, no building or land shall hereafter be used or occupied and no building or part thereof shall be erected, moved or altered unless in conformance with the ...


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