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Financial Services v. Zoning Board of Adjustment of the Borough of Little Ferry

December 07, 1999

FINANCIAL SERVICES, L.L.C., AND SHELL OIL COMPANY, PLAINTIFFS-APPELLANTS,
v.
ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF LITTLE FERRY AND NICHOLAS MELFI, ZONING ADMINISTRATOR/CONSTRUCTION CODE OFFICIAL, DEFENDANTS-RESPONDENTS.



Before Judges Muir, Jr., Wallace, Jr., and Cuff.

The opinion of the court was delivered by: Muir, Jr., P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 26, 1999

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

This appeal requires our review of a decision by defendant Little Ferry Zoning Board of Adjustment (Board), which denied plaintiffs' application to permit a check-cashing business in an existing structure at the site of a gas station located on a nonconforming lot. The appeal requires interpretation of the Little Ferry Zoning Ordinance and, alternatively, a determination as to whether plaintiffs proved entitlement to a use variance under N.J.S.A. 40:55D-70d, as explicated in Medici v. BPR Co., 107 N.J. 1 (1987). The trial court affirmed the decision of the Board, and plaintiffs appeal. We affirm.

I.

Plaintiff Shell Oil Company leases the subject property in Little Ferry for a gas station, which it subleases to the operator of the station. Financial Services proposes to sublease from Shell Oil an existing structure on the property, renovate it, and conduct a check-cashing business. The property fronts on Route 46 and is located in an area zoned "B-H Highway and Regional Business Zone." In pertinent part, the restrictions on uses in the B-H zone are as follows:

B. Permitted uses. In the B-H Highway and Regional Business Zone, no buildings or premises shall be used and no building or part of a building shall be erected, constructed or altered which shall be arranged, intended or designed to be used for any purpose other than the following uses:

(1) Regionally oriented retail shopping centers consisting of integrated developments of such uses as retail stores and shops and personal service establishments housed in an enclosed building or buildings and utilizing such common facilities as customer parking areas, pedestrian walks, truck loading and unloading space, utilities and sanitary facilities and gasoline filling stations.

(2) Theaters and auditoriums.

C. Conditionally permitted uses.

(1) Uses. Conditionally permitted uses shall be as follows:

(a) Professional, business and governmental offices.

(b) Banks and savings and loan institutions.

(c) Post offices.

(d) Hotels and motels and restaurants.

E. Prohibited uses. Any uses other than those uses permitted by Subsections A through D of this section shall be prohibited without in any way limiting the generality and prohibition of this section. Nothing contained in this Article shall be construed to permit any of the following uses in any B-H Highway and Regional Business Zone:

(7) Gasoline service stations.

Other pertinent provisions of the ordinance provide the following definitions:

1. Conditional Use:

A use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use, as contained in the Zoning Ordinance, and upon ...


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