On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-3474-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Sabatino and Alvarez.
The Township of Middletown Zoning Board of Adjustment (Board) appeals from a February 23, 2010 judgment reversing its decision denying plaintiff Loori Bus Company's land use application and ordering the Board to grant plaintiff use and bulk variances. We affirm in part, and vacate and remand in part.
To summarize, plaintiff, a school bus company, sought a use variance to construct an additional bus parking area on a lot adjoining its existing bus depot and parking lot. Plaintiff also sought a bulk variance to permit construction of a gravel lot instead of a paved lot.*fn1 Because we agree with the trial judge that plaintiff's school bus operation is an inherently beneficial use and that the record does not support the Board's decision denying the use variance, we affirm the judge's order directing the Board to grant the use variance. However, because the Board never ruled on plaintiff's related application for a variance allowing a gravel rather than a paved parking lot, we vacate the portion of the trial court's order granting that variance and remand the issue to the Board for its prompt consideration.
The following evidence was presented at the hearings before the Board. In his testimony, the company's owner, Michael Loori, outlined the reasons why his company needed more space to park its school buses. According to Loori, eighty percent of his company's work was for the Middletown Township school district, with another twenty percent performed for the Hazlet and Holmdel school districts. The company owned forty school buses, and the existing parking area, located on Lot 8, was too small to accommodate them. He therefore sought to expand the bus parking area to Lot 7, which like Lot 8, was located in the B-2 business zone.
Loori described the difficulty and delay his drivers experienced in negotiating the buses in and out of Lot 8. Due to the cramped space, there were frequent minor collisions between the buses as the drivers tried to move them around on the lot. He testified that he had no immediate plans to expand the business, although he admitted that he would be open to taking on additional business in the future if it became available. His immediate goal, however, was to move some of the existing forty buses from the existing lot to the proposed new parking area on the adjoining Lot 7, in order to provide more room to maneuver them in and out of the facility.
Loori also proposed to use only the existing ingress and egress onto Route 36, so that no buses would be traversing the side streets adjacent to Lot 7. In response to questions from the Board, the applicant offered to provide additional information about the possible environmental impact of covering the new lot with gravel instead of paving it.
On the second day of the hearing, the applicant presented testimony from Douglas Harm, an environmental geologist. According to Harm, using crushed stone would be more environmentally sound than using pavement because there would be no storm water run-off and the stone would, to some extent, act as a filter to keep small oil drips from reaching the groundwater. He also testified that he had been testing the existing graveled bus parking area on Lot 8 since the early 1990s and had found no significant environmental issues. He admitted, however, that it would be possible to install a system to catch run-off from a paved lot.
At the next hearing date, the applicant presented testimony from Christine Cofone, a professional planner. According to Cofone, the proposed use was inherently beneficial and any detrimental effects from granting the variance could be addressed by imposing conditions such as a cap on the total number of vehicles permitted on the lot. She testified that the applicant would agree to a cap of fifty buses and twenty-five vans. Cofone also testified that the proposed use was not significantly different from the types of uses permitted in the B-2 zone, including "auto repair uses, equipment and tool rental, funeral parlors, ambulance services, [and lumber] yards." She also testified that the property could be adequately screened from the surrounding neighborhood with fencing and by planting additional trees to supplement the existing "fairly dense span of trees." According to Cofone, there was also a planning benefit to using the existing highway access for the school bus operation, and to have the new bus lot contiguous to the existing lot.
One neighbor testified in opposition to the application. He contended that the existing bus facility generated unpleasant diesel smells, and he was concerned that the condition would be worse if the use expanded. He also expressed concern about possible storm water run-off. He further testified that when he bought his house, he was told that Lot 7 would never be developed because there were wetlands on the lot. Neither the Board nor the objector presented any expert testimony.
In rejecting the application, the Board found that the use was not inherently beneficial because "the applicant has provided no testimony that additional parking for school buses is required in the Township of Middletown or the adjoining municipalities." Analyzing the application as one for an ordinary use, rather than an inherently beneficial use, the Board ...