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Thomas Mcfadden and Tammy Mcfadden, Husband and Wife v. Delanco Township Joint Land Use Board and Township of Delanco

July 3, 2012


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1069-10.

Per curiam.


Submitted April 30, 2012 -

Before Judges Sabatino and Ashrafi.

This case involves an attempt by plaintiffs to obtain variances that would enable them to convert their residential property into an ice cream parlor. Defendants, Delanco Township Joint Land Use Board ("the Board") and the Township of Delanco, appeal the Law Division's order dated April 15, 2011 reversing the Board's denial of plaintiffs' application for a prohibited-use variance under N.J.S.A. 40:55D-70d(1). We affirm the trial court's decision with respect to the so-called "positive criteria" required for a subsection d variance. However, we reverse and remand for further development of the record as to the required "negative criteria," particularly the traffic issues discussed in the Board's resolution.


Plaintiffs Thomas McFadden and Tammy McFadden are spouses and the record owners of the property designated as Block 1400, lots 1 and 2 on the Township's tax map. According to plaintiffs, at the time they purchased the property in the early 1990s, it was designated as a single lot, on which there were two "shacks." Plaintiffs demolished one shack and obtained a permit to construct a house on the property. The Township sought to block construction of the house, which resulted in litigation.

The house-construction dispute was resolved by a 2003 consent order. Pursuant to that consent order, plaintiffs' property was divided into lot 1 and lot 2. The consent order specified that "[e]ach of the individual subdivided lots created by this [o]rder shall comply with the current bulk and area standards of the C-Commercial Zoning District under the Delanco Township Zoning Ordinances[.]"

The present appeal concerns lot 1, which, at the time of plaintiffs' application, contained a two-story, single-family home and a shed. Lot 1 includes a driveway and parking for up to four cars. Plaintiffs live in a separate home on the adjacent lot 2.

Lot 1 is a waterfront property that abuts the Rancocas Creek. It is in an "R-6" residential zone and located on the corner of Rancocas Avenue, a narrow residential street, and Burlington Avenue, Delanco's "main street." A public park is located across the street from lot 1 on the other side of Rancocas Avenue.

In July 2009, plaintiffs submitted an application to the Board seeking to convert the home on lot 1 into an ice cream parlor and an apartment that would be compliant with affordable housing requirements. An ice cream parlor is considered within the Township's ordinances to be a "C-1" commercial use. At the time of plaintiff's application, such commercial uses were permitted in the R-6 zone as conditional uses. Hence, plaintiffs were seeking a conditional-use variance. Plaintiffs also sought several variances related to lot depth and setback requirements.*fn1

After plaintiffs submitted their application, the Board's planner, Scott Taylor, concluded that an ice cream store would be permitted as a conditional use on lot 1 in the R-6 zone, provided that all area, bulk, and other requirements for the C-1 zone were met. Because the applicants did not fully meet those particular requirements, Taylor advised that a conditional-use variance was needed. He also noted that the Township's 2009 Master Plan had recommended lot 1 to be rezoned to be within the C-2 zone, which would allow plaintiffs' contemplated use as of right.

A public hearing on plaintiffs' application was commenced before the Board on December 1, 2009. Mr. McFadden testified in support of the application. Plaintiffs also presented testimony from James Blasberg, an architect licensed in New Jersey and other states. In addition, Hugh Dougherty, the Board's engineer, and Cheryl Bergailo, the Board's planner, provided unsworn comments about the application.

Several members of the community spoke out at the hearing in opposition to the proposed ice cream parlor. Among other things, some residents voiced concerns about the proximity of the proposed ice cream parlor to the public park. They expressed fears that children or other pedestrians patronizing the store would be struck by motorists when crossing the street. One speaker noted that there had previously been several accidents at or near the site.

At the end of the initial hearing session, plaintiffs' counsel requested that the application be tabled until the next Board meeting. The request was granted, and the application was carried to a future date.

On January 4, 2010, the Township's planners issued a written report concerning plaintiffs' application. The planners noted that the Township's 2009 Master Plan erred in recommending that lot 1 be rezoned from a "C-1 zone" to a "C-2 zone." They pointed out that lot 1 was, in fact, in an R-6 zone and had been incorrectly included in the Master Plan's list of existing commercially-zoned properties recommended to be rezoned. The planners further noted that the 2009 Master Plan otherwise called for the removal of C-1 uses as conditionally-permitted uses in the R-6 zone. To rectify this apparent mistake, the planners recommended that the Master Plan be amended to reflect that lot 1 remain zoned R-6, which would have had the effect of disallowing commercial operations as conditional uses on the property.

Following this advice from the planners, the Township's solicitor drafted a provision eliminating C-1 uses in the R-6 zone, including lot 1. That provision, which became known as Ordinance 2010-1, was specifically aimed at preventing plaintiffs from pursuing a conditional-use variance for the ice cream parlor under N.J.S.A. 40:55D-70d(3). The Township approved Ordinance 2010-1 on first reading in January 2011, and the ordinance was thereafter endorsed by the Board in February 2011.

On March 1, 2011 -- one day before the renewed Board hearing on plaintiffs' application for variances -- the Township adopted Ordinance 2010-1 following a public hearing. The new ordinance had the effect of converting plaintiffs' proposed ice cream parlor from a conditionally permitted use into a non-conforming use. Consequently, a prohibited-use variance under N.J.S.A. 40:55D-70d(1) was then required for plaintiffs' pending application.

The following day, March 2, 2011, the Board completed its consideration of plaintiffs' application. The Board concluded that plaintiffs had not established either the "positive" or "negative" criteria for a prohibited-use variance under N.J.S.A. 40:55D-70d(1).

As to the positive criteria, the Board's resolution acknowledged that plaintiffs had presented "a number of compelling indicators that the subject property is peculiarly well-suited to the proposed use." In that regard, the Board cited the site's frontage on Rancocas Creek, the fact that the property is adjacent to a public park, and the fact that Burlington Avenue is, in effect, the Township's main thoroughfare and "downtown" business area. Nevertheless, the resolution concluded that the proposed ice cream parlor would be "incompatible with the character of the surrounding area and that, if approved, the proposed use [would] diminish the safe and quiet enjoyment of neighboring properties."

In addition, the Board found that plaintiffs' property failed the "peculiar suitability" test for safety reasons, particularly traffic safety concerns. As the resolution noted:

The Board found that the adjoining property owners who testified that the proposed use would create a dangerous situation on Rancocas Avenue and at the Rancocas/Burlington Avenue intersection were correct. Three facts are at the heart of this conclusion. First, Rancocas Avenue opens onto Burlington Avenue only a few feet from the foot of the Delanco-Riverside Bridge; a drawbridge that opens periodically for marine traffic. Second, Rancocas Avenue is a short, narrow street. Because this is an older neighborhood many homes have little or no off-street parking[,] and residents need to park on the street. Finally no matter how many parking spaces the applicants provide, some of their customers will choose to park on the street, particularly those who don't plan on consuming their ice cream on the premises. Because the structure is close to the intersection, these cars will park close to the intersection whenever possible. When a car or cars are parked on the north side of Rancocas Avenue, cars driving west on Rancocas Avenue (toward the intersection) are forced to drive in the eastbound lane to get around the parked car or cars. Accidents will occur when these vehicles, traveling west in the eastbound lane are ...

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