On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1031-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Collester.
Hillsborough Storage L.L.C. (Appellant), the owner and operator of multiple self-storage facilities, appeals from Judge Allison E. Accurso's decision upholding the finding by the Hillsborough Board of Adjustment (Board) that self-storage facilities are a permitted use in the I-1 Light Industrial Zone (I-1 Zone). Specifically, Appellant argues that our decision in DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161 (App. Div.), certif. denied, 181 N.J. 544 (2004), changed the law and that the idea that self-storage facilities are warehouses is no longer a tenable argument. Appellant argues that, in light of the DePetro decision, self-storage facilities are not warehouses and cannot be deemed a permitted use in the I-1 Zone.
These are the operative facts. Suburban Corp. and 713 Company t/a West Essex Industrial Park (West Essex) owns 3.5 acres of property in Hillsborough's I-1 Zone. West Essex contracted to sell this property to Raia for the construction of a three-story self-storage facility.
West Essex and Raia applied to the Hillsborough Township Planning Board (Planning Board) for approval of a minor subdivision, site plan and rear yard variance for construction of the proposed self-storage facility. While the Planning Board's decision was pending, Appellant challenged whether self-storage facilities were a permitted use in the I-1 Zone by filing an application pursuant to N.J.S.A. 40:55D-70b for an interpretation of sections 188-97 and 188-106B(2) of the Hillsborough Township's Zoning Ordinance.
According to section 188-106A(1) of the Township's Ordinance, the purpose of the I-1 Zone is to "create zoning districts recognizing the existing pattern of small industrially oriented facilities, allowing remaining lots in the same areas to be developed with similar uses and providing areas for modest industrial operations." Pursuant to section 188-106B(2), one of the expressly permitted uses in the I-1 Zone is "[w]arehousing, shipping and receiving completely within an enclosed building." Although those uses are not specifically defined in the Zoning Ordinance, the general principle is that "[a]ll uses not expressly permitted are prohibited."
The Board held a public hearing. At the hearing, Appellant introduced the testimony of Peter Steck, a licensed and experienced planner who, in his professional opinion, stated that section 188-106B(2) lists warehouses as a permitted use in the I-1 zone and self-storage facilities are not warehouses. The Board also heard from Robert Ringelheim, the Township's planner, who opined that self-storage facilities had already been determined to be a permitted use in the I-1 and GI Zones as evidenced by the three self-storage facilities currently in operation. Ringelheim stated that the zoning ordinance as it pertains to the I-1 Zone "[had] not changed in form since 1993, before the first self-storage facility was erected." In addition, two members of the public appeared at the hearing to ask questions of the planners and to make comments on the application. West Essex did not attend or participate in this hearing.
[There is] no significant difference between the two zones with respect to warehousing or self-storage uses.
The principle permitted uses in the I-1 and GI Zone Districts include warehousing without referring to either customer service uses or commercial storage warehouse uses. The proposed self-storage facility is a lower impact use than a commercial storage warehouse in terms of the traffic generation, truck traffic, noise and amount of deliveries.
The Board finds that the self-storage facility use is a much better planning fit in terms of the impact on surrounding uses ...