On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2845-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Lihotz and Messano.
Pilot Travel Centers, L.L.C., appeals from the trial judge's affirmance of defendant's, Zoning Board of Adjustment of the Township of Mahwah (the Board), denial of plaintiff's variance application. Plaintiff contends that its application sought either (1) a variance to expand a pre-existing nonconforming use, N.J.S.A. 40:55D-70(d)(2); or (2) a variance for a permitted conditional use, N.J.S.A. 40:55D-70(d)(3). It argues that the Board, and the trial judge, applied a more stringent standard applicable to consideration of a use variance, N.J.S.A. 40:55D-70(d)(1). Alternatively, plaintiff argues that it met the enhanced standard of proof required for a d(1) variance. Finally, plaintiff claims that the judge erred in concluding that a Board member's sua sponte visit to one of its sites in another state, and his subsequent report to the full Board, was permissible and did not otherwise taint the proceedings.
We have considered these arguments in light of the record and applicable legal standards. We reverse and remand for further proceedings consistent with this opinion.
Plaintiff is a nationwide operator of "travel centers," a "hybrid" between a traditional truck stop and one that caters to the general "motoring public." It operates 261 such centers in the United States. Most of plaintiff's business comes from contracts it maintains with major trucking companies to provide services to their professional drivers.
Plaintiff's proposed development involved 4.75 acres of land located on the southbound side of Route 17 in Mahwah, and an easement on a separate lot that provided access to Ridge Road, a nearby street. The property is located in close proximity to Interstate Route 287 and the New York State Thruway, and is directly south of the Ramapo Avenue overpass on Route 17, which intersects with Ridge Road. The property is also located within two hundred feet of Mahwah High School, with the school's stadium and recreational facilities being directly across Ridge Road. The nearest residential dwellings are more than 600 feet away from the property and are not visible from the site.
Just north of the property, on the southbound side of Route 17, is a truck stop with a restaurant, gasoline and diesel fueling positions, and a gas station, one of nine along Route 17 in Mahwah, which also has a convenience store. For the past sixty-eight years, the site has been used as a truck stop containing three diesel fuel pumps, eighty-four truck parking spaces, nine car parking spaces, a truck scale, and two buildings--a service building used for truck repairs, and a two- story, 5700-square-foot retail building containing a restaurant, restrooms, "short stay" motel rooms, and office space.
The property is located in the B-40 zone (Highway Business) created by Mahwah's zoning ordinance (the Ordinance). Permitted uses in the B-40 zone include "[a]utomobile service and repair other than auto body repair," motels and hotels, and all uses permitted in the B-200 zone (Shopping Center Business). Samples of permitted uses in the B-200 zone include auto supply stores, candy stores, delicatessens, food and grocery stores, offices, and restaurants. The B-40 zone also permits, as conditional uses, anything permitted as a conditional use in the B-200 zone. "Automobile service stations" and "gasoline stations" are conditional uses permitted in the B-200 zone. Neither "truck stops" nor "travel centers" are mentioned in the ordinance, which, by its terms, provides that any use not listed is deemed to be prohibited.
Plaintiff proposed demolishing the existing buildings on the property and constructing a "travel center." The development would include two canopies covering seven truck fueling positions for diesel fuel and sixteen automobile fueling positions for gasoline, as well as thirty truck parking spaces, twenty-seven automobile parking spaces, a truck scale, and a one-story 4200-square-foot building. Plaintiff proposed to put a convenience store selling only prepared foods, an area for the sale of motor vehicle supplies, a video game room, an ATM, and restrooms and showers for professional truck drivers in this building.
Plaintiff filed an application with Mahwah's Planning Board seeking site plan approval and various bulk variances, N.J.S.A. 40:55D-70(c). Defendant Mara Winokur, Mahwah's Land Use Administrative Official and Zoning Officer, determined that plaintiff needed to apply for a use variance, because a "truck stop use [was] not permitted as of right in [the] B-40 zone." Plaintiff appealed Winokur's decision to the Board and simultaneously filed a new application requesting a variance, as well as dimensional variances and waivers. Specifically, the application stated the following:
1. Applicant requests variance to permit service station to continue as per current use of property. Applicant proposes to remove existing non-conformities and create one building meeting all ...