Nuckel v. LITTLE FERRY PLANNING BD.
208 N.J. 95
N.J.2011Background
- In 2002, General's Group sought to build a hotel by merging lots 8.01, 8.02 and creating Lot 11 for a driveway access across Lot 11 to reach Lot 8.02.
- All involved lots are in the B-H Zone; permitted uses are limited to regional shopping centers or theaters, with hotels allowed only as a conditional use.
- Lot 11 is undersized (30,223 sq ft vs 80,000 sq ft minimum) and houses a pre-existing nonconforming auto-body shop.
- The proposed driveway across Lot 11 would provide highway access for the hotel on Lot 8.02 and is not expressly permitted or accessory under the zoning code.
- Little Ferry Code defines an “accessory use” as a use on the same lot as the principal use, which complicates whether the driveway is accessory or a separate use on Lot 11.
- Board initially approved site plans and variances in 2003; later remand and new Board actions raised whether variances were needed and how nonconformities were to be evaluated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Lot 11 driveway create a new principal use requiring a d(1) variance? | Nuckel: driveway is a second principal use, not an accessory. | General's: driveway is accessory or de minimis impact. | A use variance is required (d)(1) for a new principal use. |
| Does the driveway intensify a nonconforming use requiring a d(2) variance? | Razberry's/Nonconformity expanded by reduced buffers; variance needed. | Expansion should be de minimis or not change nonconformity. | Potential d(2) variance required; remand for full factual assessment. |
| Is the driveway accessory since it serves Lot 8.02's hotel? | Driveway is on Lot 11, not on same lot as hotel; not accessory. | Driveway serves hotel access; may be accessory. | Driveway not accessory under the code because on a separate lot; constitutes a new use. |
| Did the Board properly address the site plan on remand and certify new members’ reading of transcripts? | Remand needed due to certification requirement for new members. | Certification and remand were unnecessary. | Remand required; new members must read transcripts and certify before voting. |
Key Cases Cited
- Sica v. Bd. of Adjustment of Wall, 127 N.J. 152 (1992) (special reasons for variances; public welfare considerations)
- Medici v. BPR Co., 107 N.J. 1 (1987) (three categories of special reasons for variances)
- Saddle Brook Realty, L.L.C. v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67 (App.Div. 2006) (describes special reasons standard for variances)
- Grundlehner v. Dangler, 29 N.J. 256 (1959) (enlargement of nonconforming use may be varianced)
- Razberry’s, Inc. v. Kingwood Twp. Planning Bd., 250 N.J. Super. 324 (App.Div. 1991) (reduction in buffer zones can trigger d(2) variance)
- Stop & Shop Supermarket Co. v. Bd. of Adjustment of Springfield, 162 N.J. 418 (2000) (use variance and nonconforming use principles; variance as corrective tool)