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Stop & Shop Supermarket Company v. Board of Adjustment of the Township of Springfield

February 09, 2000


The opinion of the court was delivered by: Stein, J.

Argued November 8, 1999

On certification to the Superior Court, Appellate Division, whose opinion is reported at 315 N.J. Super. 427 (1998).

The principal issue presented by this appeal concerns the extent to which a previously granted use variance to an applicant conducting a retail business use binds the municipality to permit the applicant's transferee, engaged in a different retail business use, to succeed to the rights conferred by the use variance. Stating the question more narrowly, where the prior use variance allowed a retail department store, a permitted use, to use the residentially-zoned portion of its split-zoned lot for parking as a use accessory to the permitted retail use, is the benefit of that use variance for parking available to a retail supermarket, the department store's transferee, whose proposed use also constituted a permitted retail use under the ordinance?

In a published opinion, the Appellate Division, reversing the judgment of the Law Division holding that the retail supermarket succeeded to the rights conferred by the earlier use variance, determined that the differences between the two enterprises precluded reliance on the earlier variance. Stop & Shop v. Board of Adj. of Springfield, 315 N.J. Super. 427, 436-37 (1998). That court observed that "[i]n granting these variances, the Board considered only the specific enterprise proposed by Sak's in its application. . . . [A]ny proposed, significant change or alteration in the use of the property required further consideration by the board of adjustment." Id. at 435.

We granted Stop & Shop's petition for certification, 158 N.J. 687 (1999), and now reverse the judgment of the Appellate Division.


The relevant facts essentially are undisputed. Stop & Shop (S&S) instituted this suit to challenge the determination of the Springfield Board of Adjustment (Board or Board of Adjustment) that S&S, which seeks to open and operate a retail supermarket on property previously owned by Saks Fifth Avenue (Saks) and occupied since 1956 by Saks' retail department store, cannot rely on use variances granted by the Board in 1956 to permit parking on the residentially-zoned portion of the lot, and in 1968 to permit construction of an addition to the store on that same part of the lot.

The property in controversy consists of approximately 9.7 acres with about six-hundred feet of frontage on Millburn Avenue, a heavily-traveled county road occupied in the vicinity of the property by a variety of retail commercial uses. Although the portion of the property located within twenty feet of Millburn Avenue is located in Millburn Township, the bulk of the property is located in Springfield. During all relevant periods (other than the period subsequent to April 1999, when a new zoning ordinance took effect, infra at (slip op. at 14-15)), the Springfield portion of the property was split-zoned in approximately equal parcels, the portion closest to Millburn Avenue to a depth of about two-hundred feet being commercially zoned and the southerly portion being residentially zoned. When Saks obtained its variance in 1956, the commercially zoned portion was in the General Business (GB) District in which a "Retail store or group thereof" was a permitted use. In 1956 the residentially zoned portion, having an average depth of 120 feet, was zoned S-120, a single-family residence zoning district requiring 120 feet of frontage, and front and rear yard setbacks of fifty feet and seventy-five feet respectively.

In 1994 when S&S applied for a certificate of occupancy, the commercially-zoned portion of the property was zoned General Commercial (GC), in which "Retail Sales and service stores" were a permitted use. The ordinance defined "Retail Sales and Services" as follows:

The sale of goods for use or consumption off the premises, which goods are intended to meet direct consumer food, clothing, furnishing, recreational or other needs and are not intended for resale, and/or the sale of services such as personal care, financial, repair, catering and other similar services. The term "retail sales and service" shall specifically exclude the sale of any type of motor vehicle, as defined by N.J.S.A. 39:1-1.

That supermarkets are a permitted use in the GC zone under the ordinance in effect prior to 1999 is not disputed, and off-street parking is a permitted accessory use in that zone. At some time subsequent to 1956 the residentially-zoned portion of the property was rezoned from S-120 to S-75.

The property was occupied by Saks' retail department store from approximately 1957 to 1994. Until 1968 the department store was a 64,000 square-foot structure located entirely within the commercial zone, and the accessory parking was located partly in the commercial zone and, pursuant to the 1956 use variance, partly in the S-120 residential zone. Pursuant to a second use variance granted in 1968, Saks was permitted to construct a 19,000 square foot addition to its building, of which 13,000 square feet were located in the residentially-zoned portion of the property.

The residentially-zoned portion of the property is abutted on its southerly and south-easterly boundaries by older residential dwellings located in the S-60 residential zone requiring sixty feet of frontage and an area of 7500 square feet. Those dwellings front on Baltusrol Avenue and Short Hills avenue, local streets running nearly parallel with Millburn Avenue, and on Tower Drive, a local street perpendicular to Millburn Avenue but bounded by Baltusrol Avenue to the north and Short Hills Avenue to the south.

In 1956 Saks applied to the Board of Adjustment for a use variance to permit the residentially-zoned portion of the property to be used for vehicular parking that was accessory to the Saks department store proposed to be constructed on the commercially-zoned portion of the property. The proposed parking area would accommodate 750 cars. The application initially was considered by the Board at its regular meeting on January 26, 1956. (The record before us includes the minutes of the pertinent meetings of the Board, as well as the Board's resolution, but does not include a transcript of the hearings conducted by the Board.) At the initial Board meeting the concerns of residents near the property focused on the lack of complete building and site plans for the proposed project, and on whether Baltusrol Avenue, a dedicated public street with an unpaved segment that extended onto the Saks property, would be vacated and dead-ended outside the property's boundary or, alternatively, paved to provide ingress to and egress from the proposed parking area. Most residents favored vacating the unpaved portion of Baltusrol Avenue to prevent traffic generated by the department store from creating a burden on local streets.

The Board's formal action on the application was deferred until its March 22, 1956 meeting to permit a site inspection. At that meeting the Board unanimously approved the Saks use variance. The Board's resolution included findings by the Board that the residentially-zoned portion of the Saks property was unsuitable for residential development. Specifically, the Board noted that because the depth of the property's residential portion was approximately 120 feet and the S-120 residential zone required front and rear yard setbacks of fifty and seventy-five feet respectively, the residential portion of the property was "incompatible with the depth requirements for the zone." In addition to the insufficiency of its depth, the Board concluded that "the residence zoned portion of the subject premises [does] not lend [itself to] the construction of houses" because "it would abut immediately on a business zone," the construction of homes contemplated by the S-120 zone is "incompatible with the established patterns of homes in the [abutting] residential area," and, finally, because residential development would require paving and extension of Baltusrol Avenue resulting in the use of that street by "large scale commercial and other vehicular traffic," that development would be incompatible with residential uses in the area. The Board concluded that the property's "highest and best use" would be achieved by the grant of the use variance and the "integrated development" of the entire parcel for the proposed retail commercial purpose because it would "promote the general welfare" and "preserve and enhance property values" by removing the danger of residential development that is "haphazard and inconsistent" with the surrounding area. The grant of the variance was conditioned on the closing of Baltusrol Avenue at the property line, construction of a ten-foot buffer strip along the rear of lots fronting on Tower Drive, and construction of a six-foot fence around that portion of the property's perimeter that abuts residential development.

In 1968 Saks applied for and was granted a second variance to extend its department store building, formerly confined entirely to the GC zone, into the S-120 residential zone. The Board's resolution determined that "since the store is located where it is, the area into which applicant seeks to extend the store is no longer suited for residential use." In addition, the Board found that "[t]he Saks Fifth Avenue store provides shopping of a quality not otherwise available in the community, and . . . from the evidence adduced that to maintain such quality standards the requested expansion is necessary." The 1968 variance contained additional conditions regarding adjacent roadways, parking, plantings and shrubs, buffer strips, lighting and fencing. As was the case with the original resolution, however, no conditions were imposed limiting or defining the scope of the retail use permitted under the variance. Saks' 1968 variance application stated that an addition of 30,400 square feet was proposed, and that the existing building occupied approximately 64,000 square feet. Although the Board approved the entire addition sought by Saks, the record reveals that the size of the expanded building aggregates 83,000 square feet, of which approximately 13,000 square feet is in the residentially-zoned portion of the property. That suggests that the addition constructed by Saks pursuant to the 1968 variance was about 19,000 square feet, of which 6000 square feet was in the commercially-zoned part of the property.

In May 1994 counsel to S&S wrote a letter to the Springfield Zoning Officer seeking a determination that S&S would be permitted to use the Saks property for a retail supermarket. S&S proposed two alternative plans. One proposal contemplated the use of the existing 83,000 square foot existing structure, with some modifications that would not increase the existing square footage. The second proposal contemplated a new structure consisting of approximately 85,000 square feet, of which approximately 4,400 square feet would be located in the residentially-zoned portion of the property. The letter noted that a retail supermarket is a permitted use in the GC zone, and requested the zoning officer's confirmation that S&S would not require any variances if it proceeded under either of the proposed alternatives. Counsel to the Board of Adjustment replied to S&S's letter on behalf of the Zoning Officer. That response informed S&S that it could not rely on the prior Saks variances, and that S&S either should seek a new variance, rezoning of the property, or review of the Zoning Officer's determination from the Board of Adjustment. S&S appealed to the Board from the Zoning Officer's determination pursuant to N.J.S.A. 40:55D-70(a) and (b), contending that it was entitled to rely on the use variances previously granted to Saks. The Board conducted hearings on S&S's appeal in February and April 1996.

At the hearings S&S produced Ken Narva, an architect, who testified concerning the layout of the existing structure and the shape and size of the proposed new structure S&S would construct under its alternative plan. That new structure would have a "footprint" of approximately 73,200 square feet and would include two storage mezzanines totaling about 12,000 additional square feet. Approximately 4400 square feet would be located in the residentially-zoned portion of the property, substantially less than the Saks building that included over 13,000 square feet in the residential zone. The proposed building would include seven fully enclosed loading docks, compared with one open loading dock at the existing building. The proposed S&S plan contemplates 493 parking spaces, compared to 547 parking spaces on the existing building site.

Cynthia Fuller, a twenty-nine-year resident of Millburn and a frequent patron of Saks as well as area supermarkets, testified as a joint witness for several objectors. She testified that the merchandise sold by Saks was "very upscale. Mainly women's clothing, and in my opinion, very expensive." She testified that Saks also sold cosmetics, and operated a restaurant as well as a beauty parlor. She recalled that the Saks store was open on Monday and Thursday evenings and, in recent years, on Sunday afternoons. She described the store's atmosphere as "dignified," characterizing it as "[n]o hustle-bustle or that type of thing." She testified that the Saks parking lot never was completely filled and that, typically, she could find a parking space very near to the store's entrance. She testified that traffic conditions on Millburn Avenue were especially heavy during rush hour and on Saturdays.

At the conclusion of the hearings the Board voted six to one to sustain the zoning officer's conclusion that S&S required a new use variance to operate its supermarket on the Saks property. The Board's resolution noted that S&S declined "to offer proofs concerning a qualitative comparison between the previously approved use of the residentially-zoned property and the newly proposed use of the residentially-zoned property." The Board concluded that S&S failed to demonstrate "that the supermarket business it intends to operate on the property . . . is of a similar nature, kind, or use intensity to that of the Saks operation and thus cannot be included or permitted under the variances previously granted for Saks Fifth Avenue."

S&S filed a complaint in lieu of prerogative writ challenging the Board's decision. The Colonial Association of Springfield, comprised of Springfield residents potentially affected by the proposed use, and the Township of Millburn were permitted to intervene as defendants. In an unpublished opinion the trial court reversed the Board's determination as an abuse of discretion, ruling that S&S did not need a new use variance to operate a supermarket on the property.

The court determined that whether S&S's use of the property was qualitatively similar to Saks' use was irrelevant because the specific concerns cited by the board -- S&S's longer hours of operation, greater number of loading docks, and greater number of customers -- were ordinarily addressed in the site plan review process. The court noted that from a land-use perspective, the Springfield zoning ordinance does not distinguish between types of "retail and service stores," the category under which both supermarkets and department stores fall. Therefore, the court observed, the same zoning requirements apply to both types of use. The court also noted that variances are not personal to the owner, but run with the land.

The Springfield Board of Adjustment, the Township of Millburn, and the Colonial Association of Springfield appealed the judgment of the Law Division. Prior to argument, the Appellate Division permitted Village Super Market, Inc. and Sumas Realty Corporation to intervene in the action. The Appellate Division reversed the trial court's judgment, observing that "a use created by a variance may not be expanded or substantially changed without further application to the board of adjustment." 315 N.J. Super. at 431. The court concluded that "[i]n granting these variances, the Board considered only the specific enterprise proposed by Sak's in its application." Id. at 435. "[A]ny proposed, significant change or alteration in the use of the property required further consideration by the board of adjustment." Ibid.

As noted, in April 1999, subsequent to the judgment of the Appellate Division and prior to argument before this Court, Springfield enacted an amendment to its zoning ordinance establishing an Affordable Housing Mixed Use (AH-MU) zone, the boundaries of which are identical to the boundaries of S&S's property. No other property in Springfield is located in the AH-MU zone. Permitted uses in the AH-MU zone include senior citizen housing, with twenty percent of the units reserved for low and moderate-income senior citizens. Also permitted are commercial uses allowed in the Neighborhood Commercial zone, but no commercial establishment can exceed 7000 square feet in gross floor area. Moreover, not more than thirty percent of any property in the AH-MU zone shall be used for commercial purposes, and no commercial use or parking accessory to a commercial use shall be further than two-hundred feet from Millburn Avenue. S&S has challenged the validity of that ordinance in a separate suit now pending in the Law Division, alleging in part that the amendatory ordinance constituted "spot-zoning," and that its ...

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