On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-12187-04.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Payne and Sabatino.
This is an appeal from a final judgment of the Law Division affirming a board of adjustment's grant of a use variance for a fast food restaurant in a municipality that prohibits fast food restaurants in every zoning district.
Saddle Brook is a medium-size suburban municipality in western Bergen County. The municipality, which is primarily residential, has a commercial district that contains a variety of uses, including at least three fast food restaurants -- a Burger King, McDonald's and Kentucky Fried Chicken.
Sometime after these restaurants were established, the governing body amended the zoning ordinance to prohibit fast food restaurants in any part of the municipality. There is no legislative history indicating the purpose of this amendment or the circumstances of its adoption. The fast food restaurants established before this amendment continue to operate as pre-existing nonconforming uses.
In June 2002, the Saddle Brook Planning Board granted a developer, defendant 580 Brighton Avenue Associates (Brighton), amended preliminary and final site plan approval and associated bulk variances authorizing development of a strip mall on a 3.2 acre tract of land located on the main street in Saddle Brook. This approval authorized construction of four buildings. At the time of the approval, Brighton had tentatively agreed to lease one of the buildings to defendant Grillco Two, LLC (Grillco) for use as a Wendy's fast food restaurant.
Subsequent to the approval, Grillco applied for a permit to construct a Wendy's restaurant in this building. This application was denied on the grounds that the proposed Wendy's would be a fast food restaurant, which is a prohibited use in the municipality.*fn1
Grillco then applied to the Board of Adjustment for a use variance authorizing a Wendy's fast food restaurant with a drive-through facility in the fourth building in the mall. The application was opposed by plaintiff Saddle Brook Realty, LLC (Realty). The hearing on the application consumed a total of nineteen days over a year-and-a-half period.
At the time of the hearing, the other three buildings on the site were already constructed and occupied. The occupants of these buildings include a bank, liquor store, Verizon retail store, Krauser's convenience store that sells take-out food, and a Chinese restaurant that also sells take-out food. The existing buildings occupy approximately 23,500 square feet. The building containing the proposed fast food restaurant would occupy an additional 3,200 square feet.
The applicant, objector and Board all presented planning experts who gave opinion testimony concerning whether the proposed fast food restaurant satisfied the statutory prerequisites for the grant of a use variance. Grillco's expert, Joseph Burgis, testified that "the category of fast food versus non-fast food and other fast food restaurants has been blurred over time" and that this blurring, "in and of itself, represents a special reason to support this use variance request." He further explained that, "from a land use perspective, there clearly is no distinction between fast food restaurants and other restaurants." Burgis testified that a further basis for finding the "special reasons" required for a use variance was "the symbiotic relationship between the overall [strip mall] center design and this fast food restaurant use." Burgis testified that yet another "special reason" was the "consistent and . . . complementary nature of the proposed use with the surrounding development," which included numerous food sales establishments, restaurants and taverns.
The objector's expert, Dean Boorman, testified that the Brighton site had no "substantial advantages over other possible sites in the Township" for the location of a fast food restaurant. He indicated that the existing commercial uses in the mall were not the type of facilities in which customers would spend a significant period of time shopping and then go out to lunch. Boorman also expressed the opinion that the establishment of a fast food restaurant would not result in an upgrade in commercial development in the area. In addition, Boorman testified that because the governing body had made an express policy decision to prohibit the establishment of ...