August 4, 2009
PILOT TRAVEL CENTERS, LLC, PLAINTIFF-APPELLANT,
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MAHWAH, TOWNSHIP OF MAHWAH, MARA WINOKUR, TOWNSHIP OF MAHWAH LAND USE ADMINISTRATIVE OFFICER, IN HER OFFICIAL CAPACITY, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 6, 2009
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 setback requirements to be used as service station.
2. Variance to permit service station located within 200 feet of a school.
Service station currently exists and Applicant proposes to continue with this use.
Public hearings on the application were held between October 2005 and January 2007. Plaintiff presented a number of fact witnesses and experts, and numerous objectors, including business competitors of plaintiff, testified and produced their own experts. On January 24, 2007, the Board voted unanimously to deny plaintiff a use variance pursuant to N.J.S.A. 40:55D-70(d)(1). In its memorializing resolution, dated April 4, 2007, the Board referenced the testimony of plaintiff's expert planner, John McDonough, that the development met the criteria for a variance under N.J.S.A. 40:55D-70(d)(1), (2), and (3). Without specifically stating why the application was most appropriately viewed as a use variance, under d(1), and not the expansion of an existing non-conforming use, under d(2), or a request for relief from conditions imposed upon a permitted conditional use, under d(3), the Board applied the standard of review set forth in Medici v. BPR Co., 107 N.J. 1 (1987). It concluded that plaintiff had failed to establish "special reasons" for the requested relief, and denied the application.
On April 19, 2007, plaintiff filed a verified complaint in lieu of prerogative writs, seeking reversal of Winokur's decision and other relief. In particular, plaintiff requested that "the Board reconsider the [a]pplication" under standards governing a conditional use variance, or, alternatively, a declaratory order that "the current use of the Property [wa]s a lawful, pre-existing non-conforming use" and that its "application d[id] not represent an expansion or intensification of that use[.]"
After considering oral argument, the trial judge issued a written opinion affirming the Board's denial. Without specifically ruling on the propriety of the Board's conclusion that plaintiff required a d(1) use variance, the judge nevertheless concluded that the Board acted reasonably in considering the application in that light, and he concluded that plaintiff had failed to meet its burden of proof under the Medici standard. This appeal followed.
Implicit in both the Board's determination and the trial judge's affirmance was the conclusion that plaintiff's development proposed a non-permitted use for the site, and was neither an application seeking to expand a pre-existing non-conforming use, nor one seeking relief from specific conditions imposed upon a conditional use otherwise permitted in the zone. Plaintiff contends this was an erroneous conclusion, and that it led the Board to apply more stringent standards in evaluating its application.
We briefly set forth the standards that guide our review. "[W]hen reviewing the decision of a trial court that has reviewed municipal action, we are bound by the same standards as was the trial court." Fallone Props. L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). Because of its "'peculiar knowledge of local conditions,'" the Board's factual findings are entitled to substantial deference and are presumed to be valid. Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990) (quoting Medici, supra 107 N.J. at 23); see also Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965). The Board's conclusions of law are subject to de novo review. See Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). However, "although we construe the governing ordinance de novo, we recognize the board's knowledge of local circumstances and accord deference to its interpretation." Fallone Prop., supra, 369 N.J. Super. at 562 (emphasis added).
Greater deference is given to variance denials, "since variances tend to impair sound zoning." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adj., 343 N.J. Super. 177, 199 (App. Div. 2001). "Where a board . . . has denied a variance, the plaintiff has the heavy burden of proving that the evidence presented to the board was so overwhelmingly in favor of the applicant that the board's action can be said to be arbitrary, capricious or unreasonable." Med. Realty Assocs. v. Bd. of Adj. of Summit, 228 N.J. Super. 226, 233 (App. Div. 1988).
Pursuant to N.J.S.A. 40:55D-70(d), a board of adjustment may,
[F]or special reasons, grant a variance to allow departure from regulations . . . to permit: (1) a use or principal structure in a district restricted against such use or principal structure, (2) an expansion of a nonconforming use, (3) deviation from a specification or standard . . . pertaining solely to a conditional use[.]
In Medici, the Court established the appropriate standard of review for a commercial use variance request made pursuant to d(1). Medici, supra, 107 N.J. at 3-4. To grant such an application, the board must find that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use[;] . . . that the grant of a use variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance[;] . . . [and that] the variance "will not substantially impair the intent and purpose of the zone plan and zoning ordinance." [Id. at 4 (quoting N.J.S.A. 40:55D-70(d).]
The standard of review to be employed by the Board differs significantly, however, when the request is one for a conditional use variance under d(3).
A "conditional use" is a use that is already permitted in a particular zone, but only under certain conditions. N.J.S.A. 40:55D-3. As a result, "the underlying municipal decision is quite different." Coventry Square, Inc. v. Westwood Zoning Bd. of Adj., 138 N.J. 285, 297 (1994). The analysis focuses on the nature of the deviation, rather than the use itself, and the board must evaluate the deviation's "potential effect on the surrounding properties and the zone plan." Omnipoint Commc'n, Inc. v. Bd. of Adj. of Twp. of Bedminster, 337 N.J. Super. 398, 414 (App. Div.), certif. denied, 169 N.J. 607 (2001). Consequently, proofs in support of a conditional use variance must "only justify the municipality's continued permission for a use notwithstanding a deviation from one or more conditions of the ordinance." Coventry Square, supra, 138 N.J. at 298.
An applicant for a conditional use variance must still prove the so-called negative criteria, i.e., that the variance [would] not cause "substantial detriment to the public good and (would) not substantially impair the intent and the purpose of the zone plan and the zoning ordinance." N.J.S.A. 40:55D-70(d). However, when the request is for a conditional use variance, the Board's focus regarding this issue must be on "the impact of the deviation, not the impact of the use." Cox, New Jersey Zoning & Land Use Administration, § 17-1 at p. 454 (2009).
A nonconforming use is defined as: a use or activity which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption, revision or amendment. [N.J.S.A. 40:55D-5.]
"N.J.S.A. 40:55D-68 allows a pre-existing nonconforming use to continue absent abandonment or total destruction, [but] such use 'is ordinarily restricted to its character and scope at the time the ordinance making it a nonconforming use was enacted.'" Conselice v. Borough of Seaside Park, 358 N.J. Super. 327, 332-33 (App. Div. 2003) (quoting McDowell, Inc. v. Bd. of Adj., 334 N.J. Super. 201, 214 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001)). When the applicant seeks the expansion of an existing non-conforming use, it must still meet the requirements contained in N.J.S.A. 40:55D-70(d). See Burbridge, supra, 117 N.J. at 386-87.
The focus of the analysis, however, is on "the quality, character and intensity of the use, viewed in their totality and with regard to their overall effect on the neighborhood and the zoning plan." Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 314 (1980). To determine whether an activity constitutes expansion of a nonconforming use, our courts "apply a qualitative test, and consider the intensification of the nonconforming use as a relevant factor." Conselice, supra, 358 N.J. Super. at 335. As a general rule, expansion "is not favored." Urban v. Planning Bd. of Manasquan, 124 N.J. 651, 656 (1991). "Because nonconforming uses are inconsistent with the objectives of uniform zoning . . . they should be reduced to conformity as quickly as is compatible with justice." Parrillo's, supra, 83 N.J. at 315. "The method generally used to limit nonconforming uses is to prevent any increase or change in the nonconformity." Id. at 316. "The typical cases in which courts have found a prohibited increase or change of a nonconforming use have involved an expansion of the facilities containing the use, or an intensification of the use." Razberry's, Inc. v. Kingwood Twp. Planning Bd., 250 N.J. Super. 324, 327 (App. Div. 1991) (internal citations omitted).
However, "it is not necessary for an application [for expansion of a non-conforming use] to show that the variance properly could have been granted to create the non-conforming use in the first instance . . . ." Cox, supra, § 11-6.1, p. 312 (quoting Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 281-82 (1967); and see Urban, supra, 124 N.J. at 661). The Court has also held that "in certain circumstances . . . aesthetic improvement alone can be a sufficient special reason to justify a variance to expand a pre-existing nonconforming use." Burbridge, supra, 117 N.J. at 387.
As this brief discussion demonstrates, the nature of the variance sought determines the Board's standard of review.
Thus, while an applicant may argue that it meets the criteria for the grant of a variance under any of these three subsections, as plaintiff did here, it is critical for the Board to determine and adequately explain why its review under a particular subsection was appropriate. In this case, the Board failed to do so.
N.J.S.A. 40:55D-10(g) specifically requires a board of adjustment to "include findings of fact and conclusions based thereon" in its memorializing resolution. The transcript of the Board's deliberations reveals its members' conclusion that plaintiff's request was an application for a use variance under d(1), though the Board specifically eschewed the opportunity to take a vote on this preliminary issue. The resolution is completely silent as to why the Board reached this conclusion. We have noted that "remarks made by individual Board members during the course of hearings . . . at best reflect the beliefs of the speaker and cannot be assumed to represent the findings of an entire Board." N.Y. SMSA, Ltd. P'ship v. Bd. of Adj. of Twp. of Weehawken, 370 N.J. Super. 319, 333-34 (App. Div. 2004). "It is the resolution, and not board members' deliberations, that provides the statutorily required findings of fact and conclusions." Id. at 334.
In its resolution the Board declared that the [O]rdinance does not permit the  use of either a truck stop or travel center as proposed by the applicant in either this zone or any other zone within the municipality and  there is a clear intent by the governing body not to permit such uses.
However, it is clear from plaintiff's application that it sought relief from a condition imposed by the Ordinance upon a permitted conditional use in the zone, i.e., an "automobile service station" or "gasoline station," something plaintiff's application suggested was the "current use of [the] property." Plaintiff's letter to the Board dated February 13, 2006 clearly argues that a d(3) conditional use variance was appropriate. Although the Board's appellate brief argues otherwise, it is clear that neither plaintiff's counsel nor McDonough conceded that the application required review under the d(1) standard. In its written summation submitted before the Board's vote, plaintiff reiterated the point.
The Ordinance permits "automobile service stations" and "gasoline stations" as conditional uses in the zone. They are defined as "a building or place of business where gasoline, fuel, oil and grease and/or batteries, tires and automobile accessories are supplied and dispensed directly to the motor vehicle trade and where minor repair service is rendered." Two specific conditions of relevance were imposed by the Ordinance upon such a conditional use, specifically, that 1) no service station be located within 200 feet "along the same street and on the same block" as a school; and 2) that a buffer zone as required by the Ordinance be in place. While there was evidence adduced as to both these conditions, and the resolution discusses them to some degree, it is clear that the Board did not consider them as a request by plaintiff to be relieved of their burden in the context of an otherwise permissible conditional use. Succinctly stated, the Board never explained why it did not consider plaintiff's application as one seeking a conditional use variance to which "the 'onerous' burden of proof required to support a use variance" simply does not apply. Grubbs v. Slothower, 389 N.J. Super. 377, 387 (App. Div. 2007) (quoting Coventry Square, supra, 138 N.J. at 298).
Alternatively, plaintiff argued that the property was already being used as a "truck stop" and that its development was, at worst, an expansion of this non-conforming use. The record is replete with references to the existing use of the property as a "truck stop." Plaintiff contended that the proposed development, in many ways, de-intensified the existing nonconforming use by eliminating a restaurant, lodging, and auto repairs that were currently on the property. It further submitted that the actual square footage of the buildings on the site was being reduced and that more than half of the existing truck parking spaces were being eliminated. A significant increase in the number of fuel pumps, however, was proposed. In any event, the Board's resolution never addressed plaintiff's application in the context of an existing nonconforming use.
We recognize that this application required the expenditure of considerable time and money to reach this point, and we are extremely reluctant to remand the matter back to the Board. However, under the circumstances, the absence of this "necessary administrative finding," i.e., why the application required review as one seeking a use variance under d(1), is critical to our ability to adequately conduct our review and pass upon the merits of plaintiff's appeal. Smith v. Fair Haven Zoning Bd. of Adj., 335 N.J. Super. 111, 123 (App. Div. 2000).
We hasten to add that we reach no conclusion on the merits of the issue. Whether plaintiff's proposed use of the site was 1) a permitted conditional use under the Ordinance, and whether it was entitled to a variance from conditions imposed by the Ordinance; or 2) whether it met the qualifications for a variance to permit the expansion of an existing nonconforming use; or 3) whether the proposed use is neither, are questions to which the Board's answers are accorded substantial deference. Fallone Prop., supra, 369 N.J. Super. at 562. We are convinced, therefore, that "[j]ustice will best be served by remanding the case to the  Board for reconsideration and specific findings." Smith, supra, 335 N.J. Super. at 123. We leave the conduct of any further proceedings to the sound discretion of the Board.
In light of our decision, we address plaintiff's other main contention. Board member, Peter R. DeKramer, by his own admission, "decided to take a field trip to [plaintiff's travel center] in Newburgh, [New York]." During the hearings, he testified about his observations, and a two-page report that he prepared was admitted into evidence by the Board. During its deliberations, and in its resolution, the Board never referenced the report or in anyway expressed reliance upon it.
Citing our decision in Baghdikian v. Bd. of Adj. of Borough of Ramsey, 247 N.J. Super. 45 (App. Div. 1991), the trial judge concluded that DeKramer's testimony and report did not violate plaintiff's due process rights because "a board may use any reliable source of information concerning any fact or facts upon which it intends to rely, including written reports of other agencies or testimony of public officials[.]" In Baghdikian, we concluded a board member could privately conduct a site visit and rely upon personal observations and knowledge of the property in reaching his or her decision. Id. at 51. "The only caveat to a board's reliance on its members' personal knowledge of local conditions is that the facts relied on be placed on the record." Id. at 50. As plaintiff points out, however, Baghdikian and other decisions all dealt with a board member's visit to the actual site for which the application was pending.
We certainly attach no venal motive to DeKramer. Plaintiff's vice-president of development extended an open invitation to the Board to visit its center in Tennessee, while McDonough told the Board that there was "no other better way to make . . . projections than to actually go to a Pilot Travel Center that is operating to determine how to transpose and how to project how much traffic wi[ll] occur here at Mahwah." He used traffic figures from plaintiff's "closest" similar site in Bloomsbury, New Jersey. The Newburgh facility was the next closest to Mahwah. Were we not remanding the matter for the reasons already expressed, we would certainly conclude any error that occurred by DeKramer visiting the site, testifying about his visit, and moving his report into evidence, was clearly harmless and in no way prejudiced plaintiff's procedural rights before the Board.
On remand, however, we believe the issue should be avoided. DeKramer's report contains alleged measurements of distances from the New York Thruway to the Newburgh and Mahwah sites. He implied that truckers on the New York Thruway would more likely use the Mahwah site because it was closer and would expend less costly fuel. While this information may be accurate, and DeKramer's opinion justified, there is nothing to indicate that he possesses the expertise necessary to reach such a conclusion with any degree of traffic engineering certainty. We cannot forecast how the proceedings on remand will be conducted, and we do not foreclose the Board's prerogative to require further testimony. However, if it follows such a course, any evidence regarding comparisons between the actual site, and other sites plaintiff operates, must be carefully scrutinized for relevancy and competency.*fn1
Reversed and remanded. We do not retain jurisdiction.