On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-0125-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves, and Koblitz.
Plaintiff Ali Enterprises, L.L.C., appeals from a final judgment entered in the Law Division on August 8, 2011. The judgment affirmed a resolution by defendant City of Summit Zoning Board of Adjustment (the Board) denying plaintiff's application for a prohibited-use variance and other necessary approvals to maintain an existing gas station and to replace an existing garage with a 7-Eleven convenience store. For the reasons that follow, we affirm.
Plaintiff's property is located at 6 River Road, Summit, in a light industrial zone, which does not permit gas stations and retail stores. However, as plaintiff's land use planner explained, plaintiff's gas station is a legal pre-existing non- conforming use:
The property . . . is used as a gas station and in the past has had three repair bays, although they're currently not used, they're blocked off in front, but they're still serviceable inside. There is a long history of a gas station use here. If you look through the resolutions, it [is] clear that it was a gas station for many years and I guess on three different occasions came in for different modifications, in terms of reconstructing the pumps, putting in a canopy and signage, so there was a history not only of having a non-conforming use, but there were modifications that were authorized by the Board of Adjustment over time and in reading the resolutions it was felt that there was a benefit, for example, in terms of aesthetics, to modify the application over time.
There are certain improvements that are going to be made with this. There are modifications to the signage . . . . The septic system will be abandoned and replaced with a connection to the public sewers. The turning movements will be restricted to right turn only upon exiting and there will be . . . re-striping of property and some general aesthetic improvements in terms of the facade.
During three public meetings held on September 7, 2010, October 18, 2010, and November 15, 2010, plaintiff also presented the testimony of the civil engineer who prepared the site plans; the traffic engineer who prepared a traffic impact assessment; the architect who prepared the plans for the 7- Eleven convenience store; and the owner of the property. After plaintiff completed its presentation, plaintiff's attorney urged the Board to approve the application because plaintiff's proposal would "make [the] property look a lot better [and] function a lot better."
Following deliberations, four members of the Board voted in favor of the application and three members voted against the application. Because five votes are required to obtain a use variance under N.J.S.A. 40:55D-70(d), plaintiff's application was denied. The Board's resolution, which was adopted on December 6, 2010, included the following findings:
15. The Board finds that the Zone in question does not permit retail uses, and that the applicant has failed to show that the site is particularly suited for this purpose. In fact the Board finds that a 7-Eleven will increase traffic in an undesirable manner at this location, thus making this site unsuitable for this purpose.
16. The Board gave the applicant every reasonable opportunity to assuage its concern about the traffic impact of this proposal. Even with the applicant's best efforts, it seems apparent to the Board that the traffic calming devices would be insufficient to resolve their concerns.
17. The Board acknowledges that the applicant's proposal offered special reasons, but those advantages did not outweigh the applicant['s] failure to reconcile this deviation from the master plan or the negative impacts arising from this proposal.
18. The Board recognizes the existing use is a pre-existing non-conforming use. It finds that the 7-Eleven is not an expansion of that use, but a wholly ...