On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-904-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued June 6, 2011
Before Judges Fuentes, Ashrafi and Nugent.
Plaintiff Paks Fast Service, Inc., which is a business competitor of defendant Pilot Corporation, appeals from a November 4, 2010 judgment of the Law Division dismissing its prerogative writs complaint. The Law Division concluded that defendant Zoning Board of Adjustment of the Township of Mahwah (the Board) did not act arbitrarily, capriciously, or unreasonably in granting to Pilot a conditional use variance to rebuild an existing truck stop as a standard gas station and convenience store on State Highway 17. The variance was needed because of a zoning ordinance that regulates how close a gas station can be to certain public facilities, and Pilot's property is close to Mahwah High School.
Plaintiff's argument on appeal is narrowly focused on whether the Board and the trial court correctly applied the second part of the negative criteria required for the granting of any variance under N.J.S.A. 40:55D-70, namely, that the variance does not substantially impair the intent and purpose of the zoning plan or ordinance. Plaintiff cites action taken by the Township Council while Pilot's development application was pending to argue that the variance is at odds with a restrictive zoning ordinance adopted by the Township. Having considered plaintiff's argument and the factual record presented, we now affirm the judgment of the Law Division.
Pilot is the lessee of 4.5 acres on Route 17 South in Mahwah. The property also has frontage on Ridge Road and is within 200 feet of public property on which Mahwah High School is located. Gasoline stations are a conditionally permitted use in the Township's B-40 highway business zoning district, where Pilot's property is located. Pilot was operating a truck stop and fueling station on the property with access to both Route 17 and Ridge Road. The facility had several diesel fuel dispensers, a truck scale, parking spaces, and two buildings containing a convenience store, restaurant, truck repair shop, and several motel rooms. The property contained no landscaping and had fallen into disrepair.
In April 2007, Pilot filed an application with the Planning Board of the Township of Mahwah (the Planning Board) for site plan approval to remodel and improve the property. It proposed razing the deteriorated truck stop and replacing it with a more traditional gas station facility, including gasoline and diesel fueling pumps, truck and car parking spaces, and a convenience store. Pilot proposed to close the Ridge Road access to the property and build a four-foot "board on board" fence along the Ridge Road frontage. Also, it would add landscaping, screening, and buffering along that side of the property.
At the time that Pilot presented its initial proposal to the Planning Board, the Township's zoning ordinance prohibited gas stations or vehicle repair shops within 200 feet of any schools and certain other public facilities that were located along the same street and on the same block. Because Pilot's property is on a different block from Mahwah High School, the restriction did not apply to the use of the property as a truck stop or to Pilot's development proposal.
While Pilot's application was pending before the Planning Board, however, the Township Council introduced a new Ordinance 1606 that would amend and enhance the distance restriction as follows:
No gasoline station or vehicular repair service shop shall be located on property within five hundred (500') feet of the following uses: schools, playgrounds, churches, hospitals, public libraries or institutions for dependent children.
Under the amended ordinance, the proposed development would no longer be in compliance with zoning regulations because its location on a different block from the public use would not exempt it from the distance restriction.
On January 28, 2008, the Planning Board passed a resolution favorably reporting on Ordinance 1606's consistency with the Township's master plan and recommending its adoption. On the same date, the Planning Board denied without prejudice Pilot's application for site plan approval after Pilot declined to ...