New Jersey Appellate Division Victory for QuickChek

November 2014Articles In the Zone

On November 7, 2014, the Appellate Division upheld an amended zoning ordinance adopted by Howell Township, N.J., to permit convenience stores with fuel service as a conditional use, and affirming the Howell Planning Board site-plan approval for the Route 33 and Colts Neck Road QuickChek location. The Appellate Division decided two consolidated cases: QuickChek v. Howell Township Zoning Board of Adjustment and New Horizon PropertyII; and New Horizon PropertyII v. Township Council of the Township of Howell, docket number A– 3376 – 12T2. Henry Kent-Smith and Irina Elgart successfully defended Quick Chek in this appeal, resulting in a hard-won vindication of Quick Chek’s proposal to develop a new store location.

In 2010, QuickChek filed an application for a use variance to permit its proposed convenience store with fuel service at the intersection of Route 33 and Colts Neck Road. The Howell Zoning Board denied the application for failure to secure five affirmative votes. QuickChek filed an appeal of this action, which was resolved with the adoption of Ordinance 11 – 47. Ordinance 11-47 permitted convenience stores with fuel service as a conditional use in all three of the Township’s Highway Commercial districts.

The litigation arose when a competing gas station across Route 33 from the proposed QuickChek filed an appeal challenging the validity of Ordinance 11-47. The same competitor also appealed QuickChek’s site-plan approval. The trial court upheld both Ordinance 11-47 and the site-plan approval.

The Appellate Division consolidated the appeals to both trial court decisions, and upheld the trial court. The Appellate Division found that the trial court properly applied the appropriate standards of review in dismissing the challenge to the validity of Ordinance ll – 47. The court found appropriate purposes of zoning were advanced by the Ordinance, and that the Ordinance was adopted in a proper procedural manner, as the enhanced notice requirements of N.J.S.A. 40:55D – 62.1 were not required. Both the trial court and Appellate Division held the Ordinance’s addition of a single conditional use in all three Highway Commercial districts did not constitute, as a matter of law, a change in classification of the HC-3 zone. This action paves the way for construction of the long-delayed QuickChek.

View the entire issue of In the Zone (pdf)