Agenda - Planning Commission - 08/05/2010

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June 10, 2010I Volume 4I No. 11 Zoning Bulletin Thereafter, 7-Eleven contracted to buy the former site of the Shell station. 7-Eleven proposed to: construct three new gasoline pumps and a kiosk; remove the former Shell service building; and increase the number of parking spaces from six to 17. In furtherance of that proposal, 7-Eleven applied to the township's zoning board of adjustment ("the Board") for use variances for both the "[ejxisting convenience store" and the "[p]roposed gasoline service station." 7-Eleven's variance application was for "an expansion of the existing nonconforming use." The Board granted 7-Eleven's application. A township property owner, Mena Saadala, challenged the Board's grant of the use variance that would allow 7-Eleven to construct the improvements required for the combined convenience store and retail gasoline station (the "mini -mart"). Saadala maintained that 7-Eleven's proposed redevelopment of the site was a new use. Saadala said it was not a continuation of the two pre-existing uses as 7-Eleven had pre- sented. As such, Saadala argued that 7-Eleven's project should have been subject to Board review under a more restrictive standard than was applied. Pursuant to New Jersey case law, more liberal standards applied to the grant of a use variance for expansion of a nonconform- ing use. More restrictive standards applied to the grant of a use vari- ance for creation of a new use. The trial court affirmed the Board's grant of the use variance for 7-Eleven's mini -mart. The court agreed with 7-Eleven's position. It found that the "consolidat[ion] into a single use" of "two indepen- dent, nonconforming uses" constituted "an expansion of one noncon- . forming use." Under this view, the court concluded that the Board had applied the proper standard of review in granting the use variance to 7-Eleven. Saadala appealed. The Court's Decision: Judgment of the trial court reversed. The Superior Court of New Jersey, Appellate Division, concluded that: "7-Eleven's proposed redevelopment of the site did not consti- tute a continuation of those preexisting uses, but rather a new use." As such, the court held that the Board should have applied a more restric- tive standard in granting 7-Eleven's variance application. In so concluding, the court said that the meaning of "expansion of a nonconforming use" should be construed restrictively. There was a dis- tinction between an "enlargement" and a "change" in a nonconform- ing use, noted the court. The court held that a "substantial change" in a nonconforming use constitutes a new use; it is not an expansion of an existing nonconforming use. As such, any such "substantial change" in a nonconforming use is subject to the more restrictive stan- dards applied in reviewing an application for a use variance for a new use. 10 © 2010 Thomson Reuters 170