Although it's after midnight here in D.C., in Missouri it's still Friday, so let's say this DD is timely. I didn't think either of these items worth a full DD, but two may be more satisfying as additions to the precedent file. Both of them come out in the land use applicant's favor. Pat

Daily Development for Friday, December 6, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

ZONING; ACCESSORY USE; DRUGSTORES: A drive-through window is an accessory use to that of a drugstore.

Stochel v. Planning Board of Edison Township, 348 N.J. Super. 636, 792 A.2d 572 (App. Div. 2002)

An objector sought to overturn a planning board's grant of preliminary and final site plan and conditional use approval for a project which included a pharmacy serviced by a double lane drive-thru window.

Objector attacked the planning board's approval of the development application for many reasons, including that the proposed drugstore could not properly be deemed a "drugstore" under the local zoning code and that a variance was necessary was necessary for the proposed drive-

thru service window to the drugstore.

According to the municipality's zoning ordinance, among the permitted principal uses in the particular zone were "[h]ardware stores, bakeries, music stores, stationery stores and drug stores." Apparently, the objectors believed that the drugstore really constituted a variety store because it consisted of a small pharmacy and had a large section devoted to general merchandise. Nonetheless, the Court deferred to the planning board's determination that the proposed store was a "drugstore" within the meaning of the zoning ordinance. Even if the Court were not to give deference to the planning board, it found that "there [was] simply no support for [the objector's] position, either factually or legally, that [this particular store did not] qualify as a drugstore under the Code."

This left "[t]he more difficult question" as to whether a variance was necessary for the drugstore's drive-thru window. The applicant argued that, because the proposed drive-thru was "on the same lot with and customarily incidental to" a permitted use, it qualified as an "accessory use" thereby obviating the need for any variance. According to the Court, "[i]t has been said that the law relating to accessory use 'is not difficult to recite but difficult to apply.'" It further recited that "[w]hether a particular activity or use qualifies as 'accessory' is an ever- evolving puzzle, a mixed question of law and fact, and depends, at least to some extent, upon societal norms, expectations and common sense."

An accessory use "may be predicated upon a specific provision found in the local zoning ordinance, or it may be based upon the fact that the use is so customarily incidental to the principal use that it may be deemed, as a matter of law, to be impliedly part and parcel of the permitted use."

As to whether a use is sufficiently "customary" serves to qualify as an accessory use, "the operative fact is not how often the primary use requires or involves the alleged accessory use, or whether incidents of the accessory use are often found in conjunction with the primary use (emphasis added)." Here, the applicant's expert planner opined that "the proposed 'drive-thru' is "normal for drug stores that you see in many areas these days."

The Court was reluctant to draw such an inference because, in its view, "the Board made no actual findings on the record in this regard." Consequently, the Court ordered a limited remand. In doing so, it said, "[o]n remand, the applicant may, at its option, introduce such additional evidence on the question of whether the drive-thru window proposed qualifies as an accessory use, as it deems appropriate. If the applicant does so, any member of the public (or Board consultant) is likewise free to introduce additional evidence or comment upon the issue as well. If the applicant opts not to introduce any additional evidence, the Board's findings must, of necessity, be limited to the previously established record."

After the matter was remanded, a public hearing was held and both the applicant and the objectors proffered additional expert testimony in support of their respective, contrary contentions. The applicant's expert testified that this particular drug store and its competitors, over the prior six years, had routinely included drive-thru windows in similar facilities.

The expert further noted that ten out of fourteen of this particular drugstore's New Jersey locations were supported by drive-thru windows including two out of the three within the same municipality. The third was located in an existing, older building which could not be retrofitted to add a drive-thru after the fact.

Then, a licensed traffic consultant buttressed that opinion, telling the board that drive-thru windows "were especially convenient for pharmacy customers, allowing easy access during inclement weather, while reducing the need for on-site parking." The real estate consultant testified that "each of the top four drugstore chains repeatedly request drive-thrus to service their facilities." In rebuttal, the objectors called a professional planner and professor "who offered his contrary opinion that the proposed drive-thru windows were not 'accessory' to the proposed pharmacy because" drive-thru windows were not common in this particular retail zone, because the residential character of the neighborhood made the proposed use unique, because the municipal ordinance only mentioned the drive-in banks, and given the scale, the impact of the drive-thru windows would disturb the character of the buildings in the neighborhood. Following the hearing held after remand, the planning board reaffirmed its approval, concluding that the drive-thru windows were "accessory" to the pharmacy. The matter then returned to the Court and the Court was faced with the objector's contention that the board should have assessed the impact of the drive-through on the municipality's master plan. The board had previously rejected that same argument.

The Court agreed with the board, stating that "[w]hile the Board was clearly unpersuaded that these assertions justified a contrary result, (a conclusion with which I unreservedly agree) most, if not all of these criticisms or fears are either entirely speculative or relate to matters equitably beyond the Board's legitimate power to control."

Comment 1: Local law, to be sure, but useful for the precedent file, nonetheless. Note that it is not exactly clear whether the court endorsed the notion that the degree to which the drive in facility would disturb the character of the neighborhood was a relevant consideration. In the editor's view, the agency could not lawfully have taken this factor into account if, indeed, the drive thru was an accessory use to a permitted activity. The permit was required as of right.

Comment 2: Based upon the Editor's experience in his area, drive thru's are part of every modern drug store installation, and, ironically, are largely used exclusively to service the pharmacy. Note that the objector's other argument against the project was that the pharmacy was an inadequate part of the drug store's overall business.

ZONING; VARIANCES; HARDSHIP: The need to increase the size of an existing telephone company maintenance facility is not a self-

imposed hardship when the increase results from public need as well as from a profit motive.

Bell Atlantic-New Jersey, Inc. v. Riverdale Zoning Board of Adjustment, 352 N.J. Super. 407, 800 A.2d 230 (App. Div. 2002)

A telephone company operated an installation and maintenance work center and a garage at a pre-existing non-conforming use in a professional office district zone. The property, which had been occupied by the telephone company for forty-four years, was "surrounded by a gas station, an armory, an electric service substation and a rail line." At the time of the controversy, it was using its building as a staging area for employees who installed and maintained telephone equipment and as a garage for limited maintenance on its own repair vehicles.

A time came when it needed to add twenty additional employees, which required it to find additional safe and convenient parking. It applied to the municipality's zoning board for a use variance to allow it to park forty employee cars, for a seven year period, on the gas station's property. The gas station was also a non-conforming use and abutted the access driveway to the telephone company's property. The application was denied.

The lower court reversed and remanded the matter for approval of the variance under appropriate conditions. In response, the zoning board appealed.

The Appellate Division upheld the lower court, adding its comments regarding some of the conditions that would support a "d" variance. It pointed out that the New Jersey Supreme Court has recognized that "certain commercial uses may inherently serve the general welfare in a particular community." Such a status is helpful to an applicant because where an inherently beneficial use is demonstrated, the applicant does not need to demonstrate "special reasons" for approval of its application and need not establish by "an enhanced quality of proof" that the "variance does not create a substantial detriment to the public good and 'is not inconsistent with the intent and purpose of the master plan and zoning ordinance.'"

Here, the zoning board believed the telephone company's requested use to be "merely a commercial benefit for a commercial user" and "self- serving." The Appellate Division disagreed. It believed that the zoning board had incorrectly "based its perception of the telephone company as a solely commercial venture, whose lack of planning had led to the existing overcrowding, whose parsimony had thwarted the Board- advocated relocation to another site outside the municipality, whose flouting of existing zoning had led to the unauthorized use of the gas station site for parking during three years in the early 1990s, and whose inattention to the site had led to two occasions in which cars had been displayed for sale on the premises and one occasion in which truck maintenance had occurred in the facility's driveway, resulting in a small oil spill and overnight parking in an unauthorized location." T

he Appellate Division, agreeing with the lower court, viewed the board's characterization of the telephone company as "unduly narrow, and that this perceptual error fatally infected all of the Board's subsequent conclusions, rendering them arbitrary and capricious."

In this particular case, the Court did not even need to determine whether the telephone company's use was inherently beneficial because it agreed with the lower court that the telephone company had met the more rigorous burden of establishing adequate special reasons for its proposed use. It noted that "the recent vast expansion of the means for telecommunication and our society's increase in reliance on them," created the need for expansion of the telephone company's use.

Consequently, the increase in the number of employees at the facility "resulted from public need as well as profit motive. ... When viewed in this fashion, the suitability of [the telephone company's] proposal and its contribution to the public welfare [was] clear."

Comment: Note that the New Jersey Supreme Court has recently decided that telecommunications activities are not "inherently beneficial" to the public so as to justify special treatment for proposed cell towers. See Cell South of New Jersey, Inc. v. Zoning Board of Adjustment of West Windsor Township, 172 N.J. 75, 796 A.2d 247 (2002) (The DIRT DD for 12/4/02)