Stop & Shop Supermarket Co. v. Board of Adjustment

744 A.2d 1169, 162 N.J. 418, 2000 N.J. LEXIS 24
Supreme Court of New Jersey·Decided February 9, 2000·Published·Cited by 30 cases

Opinions

The opinion of the Court was delivered by

STEIN, J.

The principal issue presented by this appeal concerns the extent to which a previously granted use variance to an applicant conducting a retail business use binds the municipality to permit the applicant’s transferee, engaged in a different retail business use, to succeed to the rights conferred by the use variance. Stating the question more narrowly, where the prior use variance allowed a retail department store, a permitted use, to use the residentiallyzoned portion of its split-zoned lot for parking as a use accessory to the permitted retail use, is the benefit of that use variance for parking available to a retail supermarket, the department store’s transferee, whose proposed use also constituted a permitted retail use under the ordinance?

In a published opinion, the Appellate Division, reversing the judgment of the Law Division holding that the retail supermarket succeeded to the rights conferred by the earlier use variance, determined that the differences between the two enterprises precluded reliance on the earlier variance. Stop & Shop v. Board of Adj. of Springfield, 315 N.J.Super. 427, 436-37, 718 A.2d 1218 (1998). That court observed that “[i]n granting these variances, the Board considered only the specific enterprise proposed by Sak’s in its application____ [A]ny proposed, significant change or alteration in the use of the property required further consideration by the board of adjustment.” Id. at 435, 718 A.2d 1218.

[422]*422We granted Stop & Shop’s petition for certification, 158 N.J. 687, 731 A.2d 47 (1999), and now reverse the judgment of the Appellate Division.

I

The relevant facts essentially are undisputed. Stop & Shop (S & S) instituted this suit to challenge the determination of the Springfield Board of Adjustment (Board or Board of Adjustment) that S & S, which seeks to open and operate a retail supermarket on property previously owned by Saks Fifth Avenue (Saks) and occupied since 1956 by Saks’ retail department store, cannot rely on use variances granted by the Board in 1956 to permit parking on the residentially-zoned portion of the lot, and in 1968 to permit construction of an addition to the store on that same part of the lot.

The property in controversy consists of approximately 9.7 acres with about six-hundred feet of frontage on Millburn Avenue, a heavily-traveled county road occupied in the vicinity of the property by a variety of retail commercial uses. Although the portion of the property located within twenty feet of Millburn Avenue is located in Millburn Township, the bulk of the property is located in Springfield. During all relevant periods (other than the period subsequent to April 1999, when a new zoning ordinance took effect, infra at 428-30, 744 A.2d at 1175), the Springfield portion of the property was split-zoned in approximately equal parcels, the portion closest to Millburn Avenue to a depth of about two-hundred feet being commercially zoned and the southerly portion being residentially zoned. When Saks obtained its variance in 1956, the commercially zoned portion was in the General Business (GB) District in which a “Retail store or group thereof’ was a' permitted use. In 1956 the residentially zoned portion, having an average depth of 120 feet, was zoned S-120, a single-family residence zoning district requiring 120 feet of frontage, and front and rear yard setbacks of fifty feet and seventy-five feet respectively.

[423]*423In 1994 when S & S applied for a certificate of occupancy, the commercially-zoned portion of the property was zoned General Commercial (GC), in which “Retail Sales and service stores” were a permitted use. The ordinance defined “Retail Sales and Services” as follows:

The sale of goods for use or consumption off the premises, which goods are intended to meet direct consumer food, clothing, furnishing, recreational or other needs and are not intended for¿.'esale, and/or the sale of services such as personal care, financial, repair, catering and other similar services. The term “retail sales and service” shall specifically exclude the sale of any type of motor vehicle, as defined by N.J.S.A 39:1-1.

That supermarkets are a permitted use in the GC zone under the ordinance in effect prior to 1999 is not disputed, and off-street parking is a permitted accessory use in that zone. At some time subsequent to 1956 the residentially-zoned portion of the property was rezoned from S-120 to S-75.

The property was occupied by Saks’ retail department store from approximately 1957 to 1994. Until 1968 the department store was a 64,000 square-foot structure located entirely within the commercial zone, and the accessory parking was located partly in the commercial zone and, pursuant to the 1956 use variance, partly in the S-120 residential zone. Pursuant to a second use variance granted in 1968, Saks was permitted to construct a 19,000 square foot addition to its building, of which 13,000 square feet were located in the residentially-zoned portion of the property.

The residentially-zoned portion of the property is abutted on its southerly and south-easterly boundaries by older residential dwellings located in the S-60 residential zone requiring sixty feet of frontage and an area of 7500 square feet. Those dwellings front on Baltusrol Avenue and Short Hills Avenue, local streets running nearly parallel with Millburn Avenue, and on Tower Drive, a local street perpendicular to Millburn Avenue but bounded by Baltusrol Avenue to the north and Short Hills Avenue to the south.

In 1956 Saks applied to the Board of Adjustment for a use variance to permit the residentially-zoned portion of the property to be used for vehicular parking that was accessory to the Saks [424]*424department store proposed to be constructed on the commercially-zoned portion of the property. The proposed parking area would accommodate 750 ears. The application initially was considered by the Board at its regular meeting on January 26, 1956. (The record before us includes the minutes of the pertinent meetings of the Board, as well as the Board’s resolution, but does not include a transcript of the hearings conducted by the Board.) At the initial Board meeting the concerns of residents near the property focused on the lack of complete building and site plans for the proposed project, and on whether Baltusrol Avenue, a dedicated public street with an unpaved segment that extended onto the Saks property, would be' vacated and dead-ended outside the property’s boundary or, alternatively, paved to provide ingress to and egress from the proposed parking area. Most residents favored vacating the unpaved portion of Baltusrol Avenue to prevent traffic generated by the department store from creating a burden on local streets.'

The Board’s formal action on the application was deferred until its March 22, 1956 meeting to permit a site inspection. At that meeting the Board unanimously approved the Saks use variance. The Board’s resolution included findings by the Board that the residentially-zoned portion of the Saks property was unsuitable for residential development.

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Stop & Shop Supermarket Co. v. Board of Adjustment, 744 A.2d 1169, 162 N.J. 418, 2000 N.J. LEXIS 24 (N.J. 2000).

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