On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2954-08.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, Fuentes and Gilroy.
This appeal requires us to determine whether an application for a use variance for establishment of a combined convenience store and retail gasoline station, to replace two separate nonconforming uses for a convenience store and gasoline station, constitutes an expansion of a nonconforming use, which is subject to the more liberal standards for a use variance set forth in Burbridge v. Township of Mine Hill, 117 N.J. 376 (1990), rather than the restrictive standards applicable to a use variance for creation of a new use set forth in Medici v. BPR Co., 107 N.J. 1 (1987). We conclude that such a redevelopment plan constitutes the creation of a new use, which is subject to the Medici standards, and that those standards were not satisfied in this case.
The issue is presented by an appeal from a final judgment of the Law Division, which affirmed a resolution by the East Brunswick Zoning Board of Adjustment granting the land use approvals required for defendant 7-Eleven to redevelop and expand a site upon which it currently operates a convenience store to add the retail sale of gasoline to its business operation. The lot upon which 7-Eleven operates the convenience store is less than one-half acre in size. The store consists of 2,650 square feet of floor space. There are six parking spaces on the site. Part of the store is located in a residential zone in which convenience stores are not a permitted use. However, the store was constructed before adoption of the zoning ordinance prohibiting this use. Therefore, it is a legal, pre-existing nonconforming use.
For a substantial number of years, a Shell gasoline station operated on a corner lot immediately adjacent to the site of the 7-Eleven. The station had four gasoline pumps located close to the road that provided eight fueling positions. The station also had a 1,280 foot service building, with two service bays, for servicing and repairing cars. The Shell station was located in a commercial zone in which gasoline stations are not a permitted use. Like the 7-Eleven store, the Shell station was established before adoption of the zoning ordinance that made it a prohibited use. Therefore, the Shell station was also a legal, pre-existing nonconforming use.
Sometime in early 2007, Middlesex County and East Brunswick condemned strips of land on both the 7-Eleven and Shell station lots for the purpose of widening the intersection at which the businesses were located.*fn1 This acquisition apparently rendered the gas pumps at the Shell station unusable, and around March 2007, Shell closed its station and removed the pumps.
Thereafter, 7-Eleven developed plans to expand its site and add the retail sale of gasoline to its existing convenience store business. To this end, it contracted to buy the former site of the Shell station from the Caggiano family, which had leased the site to Shell. 7-Eleven also contracted to buy another adjoining lot owned by the Caggianos, which is a vacant, wooded area not formerly used in the operation of either the 7-Eleven or the Shell station. This lot is located in a residential zone. 7-Eleven proposes to construct three new gasoline pump islands, with six fueling positions, which would be set back substantially further from the road than the pumps at the former Shell station, and to construct an eighty by twenty-foot canopy over the gas pumps and a kiosk under the canopy for the use of the gas attendants. 7-Eleven also proposes to remove the service building formerly used by Shell and to increase the number of parking spaces on the site from six to seventeen.
7-Eleven's application to the Board of Adjustment requested use variances for both the "[e]xisting convenience store" and the "[p]roposed gasoline service station," bulk variances, exceptions from certain design standards, and site plan approval. 7-Eleven presented its request as an application for "an expansion of the existing nonconforming use" within the intent of N.J.S.A. 40:55D-70(d)(2).
The Zoning Board granted 7-Eleven's application. The Board found, in conclusionary language, that "[7-Eleven's] witnesses presented reasoned testimony supporting [7-Eleven's] proposed uses which are particularly suited to and peculiarly situated in an area where numerous commercial uses are located." The Board also stated that "[t]he premises in question are existing commercial uses in appropriate locations" and that the grant of a use variance would "promot[e] a more desirable visual environment by redevelopment of a site that has declined for a number of years."
Plaintiff, an East Brunswick property owner, brought this action in lieu of prerogative writs challenging the Board's grant of a use variance that would allow 7-Eleven to construct the improvements required for a combined convenience store and retail gasoline station, commonly referred to as a mini-mart. After oral argument, the trial court issued a written opinion affirming the Board's grant of the use variance for 7-Eleven's proposed facility. Although the Zoning Board described the former Shell station as "abandoned," the court concluded that there had not been an "abandonment" of the nonconforming use as a gasoline station because "the owner of the gasoline service station property intend[ed] to sell it to 7-11 for the same use that pre-existed the cessation of operation by Shell." The court also concluded that "two independent, nonconforming uses exist" on the site, which would be "consolidated into a single use" under 7-Eleven's redevelopment proposal. For this reason, the court concluded that 7-Eleven's application was for "an expansion of one nonconforming use," which was governed by N.J.S.A. 40:55D-70(d)(2) rather than N.J.S.A. 40:55D-70(d)(1). Under this view, the court concluded that the Board's finding of "special reasons" for approval of the application was adequately supported by the record.
Since the Zoning Board granted 7-Eleven's application on the theory that its redevelopment plan involves an expansion of a nonconforming use or uses, and the trial court affirmed the Board on this same basis, we first consider the law governing the continuation of nonconforming uses. The statutory ...