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Shim v. Washington Tp. Planning Bd.

March 11, 1997

RAE SHIM AND WASHINGTON WINES AND LIQUORS, INC., A NEW JERSEY CORPORATION, PLAINTIFFS-APPELLANTS,
v.
WASHINGTON TOWNSHIP PLANNING BOARD AND TRENTON SEVENTH DAY ADVENTIST CHURCH, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County.

Approved for Publication March 13, 1997.

Before Judges Havey, Brochin & Eichen. The opinion of the court was delivered by Havey, P.j.a.d.

The opinion of the court was delivered by: Havey

The opinion of the court was delivered by

HAVEY, P.J.A.D.

This is an action in lieu of prerogative writs. Plaintiffs, Rae Shim and Washington Wines and Liquors, Inc., appeal from a judgment affirming the grant of site plan approval to the defendant Trenton Seventh Day Adventist Church (Church) for the construction of a church. The site plan approval, granted by defendant Washington Township Planning Board (Board), also authorizes the Church to operate a child day care center in the proposed facility. Plaintiffs argue that: (1) the day care component of the site plan application "constituted a variant use" requiring separate site plan and variance approvals; (2) the site plan approval for the Church was arbitrary, capricious and unreasonable since the Board failed to consider traffic congestion on abutting streets; and (3) plaintiffs were denied due process during the Board proceedings. We reject each contention and affirm.

The Church's ten-acre tract is situated on the corner of State Highway 33 and Washington Boulevard in Washington Township. The property is in the R1.5 (low density residential) zone. Churches are permitted uses in the R1.5 zone. The Church applied to the Board for site plan approval, as well as various bulk variances and design waivers, to construct a 15,380 square-foot church on the site. The proposed facility will include a religious sanctuary, fellowship hall, offices, a library and a child care center. The Church proposed an entranceway onto Washington Boulevard, directly across from a strip shopping center in which plaintiffs' liquor store is located.

During the Board hearing, the bulk of the testimony focused on whether the increased traffic generated by the proposed church facilities would cause a traffic hazard on Washington Boulevard. Of particular concern to the Board was that the entranceway created a "four-way intersection" with the entranceway from the existing shopping center across Washington Boulevard. The Board was also concerned with increased traffic at the nearby intersection of Route 33 and Washington Boulevard. It therefore focused on traffic to and from the Church on Saturday mornings and afternoons, when the Church's religious services are conducted, and on weekday rush hours, when children will be dropped off and picked up from the day care center.

The Board considered the Church's traffic consultant's testimony that the entranceway would present a safe and efficient means of ingress and egress to and from Washington Boulevard. It also consulted with the Township's own planning officials, and considered alternative entranceways to the site, including a means of ingress and egress directly onto State Highway 33. After additional studies and workshop sessions, the Township's consultants concluded that alternative entranceways were less advantageous than the traffic plan presented by the Church. The Board subsequently voted in favor of the Church's site plan application.

In affirming the Board's actions, the Law Division Judge rejected plaintiffs' claim that the Church was required to submit separate site plan and variance applications for the child care center. This was so, the Judge reasoned, because the child care center was recognized as an "ancillary use" to the church and thus did not require an independent application. The Judge also found that the Board's determinations concerning the traffic issues were well-founded on the record. Finally, the Judge rejected plaintiffs' claim that their due process rights were violated during the proceedings, concluding that plaintiffs had adequate opportunity to testify and express their views in opposition to the application.

I

We first address plaintiffs' contention that the day care center is not an accessory use to the principal use of the subject property as a church. Plaintiffs correctly point out that a day care center is neither a permitted nor conditional use in the R1.5 zone. Also, it is not one of the twelve enumerated accessory uses permitted in the zone. Plaintiffs note that the definition section of the ordinance states that "all uses not expressly permitted in this chapter are prohibited." Thus, plaintiffs reason, the proposed day care center is a "variant" use requiring the Church to make separate site plan and use variance applications to the zoning board. See N.J.S.A. 40:55D-70d; see also Wyzykowski v. Rizas, 132 N.J. 509, 533, 626 A.2d 406 (1993).

It is true that under the express provisions of the ordinance, there are twelve, enumerated accessory uses "permitted" in the R1.5 zone. They include greenhouses, landscaping contracting services, horticultural structures, farm buildings and the keeping of animals in fenced areas, dog kennels, private swimming pools, fences and walls, tool sheds, campers, off-street parking and private garages, and satellite antenna dishes. Day care centers are not included in the list of permitted accessory uses.

In order to accept plaintiffs' argument, we must conclude that, because Washington Township's governing body did not include day care centers in the permitted accessory uses expressly enumerated, it intended to prohibit such uses in the R1.5 zone. As in the case of statutes, our aim in construing a zoning ordinance is to discover legislative intent. Wright v. Vogt, 7 N.J. 1, 5-6, 80 A.2d 108 (1951); White Castle Sys. v. Planning Board, 244 N.J. Super. 688, 691, 583 A.2d 406 (App. Div. 1990), certif. denied, 126 N.J. 320, 598 A.2d 880 (1991). We ascertain the "sense in which the terms were employed by the legislative body." Wright, (supra) , 7 N.J. at 6; see also AMN, Inc. v. Township of South Brunswick Rent Leveling Board, 93 N.J. 518, 524-25, 461 A.2d 1138 (1983); William M. Cox, New Jersey Zoning and Land Use Administration § 5-2.3 at 86 (15th ed. 1996). The question is whether plaintiffs' interpretation "is consistent with both 'the letter and underlying philosophy of the ordinance.'" Wyzykowski, (supra) , 132 N.J. at 520 (quoting Keller v. Town of Westfield, 39 N.J. Super. 430, 435, 121 A.2d 419 (App. Div. 1956)).

Plaintiffs' construction of the ordinance runs counter to the settled rule that an accessory use need not derive from the express terms of the ordinance; an accessory use is implied as a matter of law as a right which accompanies the principal use. 2 Arden H. and Daren A. Rathkopf, The Law of Zoning and Planning § 23.01 at 23-6 (4th ed. 1985). Rathkopf states the proposition as follows:

The term accessory uses as used by the courts may be predicated upon a specific provision relating to accessory uses found in the ordinance, or may be based upon the concept that whether or not the ordinance provides for accessory uses, the litigated use is one so customarily incidental to the principal use of the zoning lot that it is, as a matter of law, a part of the permitted use.

[Ibid. (emphasis added).]

Accord Borough of Northvale v. Blundo, 85 N.J. Super. 56, 59, 203 A.2d 721 (App. Div. 1964) (even if the zoning ordinance does not speak "in terms of a use accessory to the residence use, an accessory use must ordinarily be implied -- as a matter of law -- as a right which accompanies the principal use"); Zahn v. Board of Adj., 45 N.J. Super. 516, 521-22, 133 A.2d 358 (App. Div. 1957) (allowance of a primary use "generally authorizes all uses normally accessory, auxiliary or incidental thereto"). In our view, it is not consistent with "the letter and underlying philosophy" Keller, (supra) , 39 N.J. Super. at 435, of Washington Township's ordinance to conclude that its drafters intended to abrogate this settled zoning principle simply because it enumerated specific "permitted" accessory uses. We note, for example, that public playgrounds and public and parochial schools and colleges are permitted in the R1.5 zone. We doubt that the municipality intended that lighting for the playgrounds or athletic fields for the schools are prohibited because lighting and athletic fields are not among the twelve specified items enumerated as permitted accessory uses in the zone. See Tullo v. Township of Millburn, 54 N.J. Super. 483, 496, 149 A.2d 620 (App. Div. 1959) ("usual accessory uses . . . to main buildings or uses must have been contemplated. To hold otherwise would preclude the private school from having a playground or athletic field, the hospital from having a nurses' home or the cemetery a chapel").

Indeed, it is significant that the zoning ordinance provides a general definition of an "accessory use," as one which is: (1) "subordinate to" and serves a principal use; (2) located on the same lot as the principal use; and (3) "customarily incidental" to the principal use. Inclusion of this definition strongly suggests that the governing body intended to extend permitted accessory uses beyond those enumerated in the R1.5 zone, provided that the proposed use satisfies the three-prong test under the definition. To conclude otherwise would render the general definition of accessory use superfluous.

Our Supreme Court addressed a similar zoning ordinance in State v. P. T. & L. Constr. Co., 77 N.J. 20, 24-26, 389 A.2d 448 (1978). There, plaintiff was seeking site plan approval for the installation of a heliport as an accessory use to its construction company headquarters in a limited industrial zone. The zone permitted accessory uses if the use was customarily incident and subordinate to the permitted use and not in violation of the provisions "set forth herein." Id. at 25. The ordinance then stated: "The following accessory uses are permitted," and itemized eleven specific accessory uses. Heliports were not included on the list. Ibid. The municipality advanced the same argument plaintiffs advance here, that all uses not expressly permitted in the zone are prohibited in that the list of accessory uses specified in the zone is "exclusive." Id. at 26. The Court accepted the applicant's contrary argument that the allowance of accessory uses in general terms was intended to extend beyond the eleven specific accessory uses enumerated therein. The Court was "impressed" with the applicant's contention "that under the borough's proposed construction of the ordinance the introductory proviso alluding to 'customarily incident' accessory uses would be meaningless as mere surplusage." Ibid. The Court concluded:

The argument goes on to aver that the itemization of specific accessory uses was intended only to provide examples of valid accessory uses for ease of administration of the ordinance. This is persuasive. Otherwise any number of other uses, unquestionably incident to the main use as ...


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