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Court Determines that a Drive-Thru Facility is "Customarily Incidental" to a Pharmacy and Must Be Allowed as a Permitted Accessory Use, Without Need for a Variance



May 2, 2002

In a case of first impression in New Jersey, a trial court recently concluded, in an opinion approved for publication, that a drive-thru facility constitutes a permitted “accessory use” when associated with a permitted pharmacy. Based on the longstanding criteria which apply to these determinations, coupled with the nature of the evidence that the court accepted, it is likely that drive-thru facilities associated with other uses where they have a longer history, particularly banks and fast-food restaurants, would also be deemed to constitute accessory uses.

Planning Board Proceedings

The decision, Stochel v. Planning Board of Edison Township, 348 N.J.Super. 636 (December 4, 2000), involved an application to the Edison Township Planning Board seeking preliminary and final site plan approval for a development consisting of two retail buildings: a Walgreen’s pharmacy with a double drive-thru facility, and a strip retail center which included a bank and associated drive-thru facility. The zoning ordinance conditionally permitted banks having drive-thru facilities. It also permitted “drug stores”, but neither expressly permitted nor expressly prohibited associated drive-thru facilities.

Following a series of public hearings at which the applicant offered extensive expert testimony in support of the application, the Board denied it unanimously. The applicant appealed and the trial judge found that the Board’s resolution, as a matter of law, did not support denial of the application. Accordingly, the judge vacated the Board’s decision and remanded the case to the Board for reconsideration on the merits, subject to a limiting instruction which barred the Board from considering intensity of development (the original principal basis for denial) since that was legislatively determined by the governing body when it established drug stores and banks as permitted and conditionally permitted uses, respectively.

The Board held further hearings and ultimately approved the application, subject to a series of conditions. Objectors filed an appeal. Among their contentions was that the drive-thru windows associated with Walgreen’s required a variance. The applicant maintained that the drive-thru facility was a permitted accessory use.

Law Governing What Constitutes An “Accessory Use”

Under existing case law, an accessory use may be permitted because it is expressly set forth in the zoning ordinance as a permitted accessory use, or may be deemed to be part of the permitted use with which it is associated because it is “customarily incidental” to that use. Even where the zoning ordinance contains a list of specifically permitted accessory uses, the list is not deemed to be exclusive. Tanis v. Township of Hampton, 306 N.J. Super. 588, 601 (App. Div. 1997). New Jersey courts have determined that a zoning ordinance which allows a principal use also “generally authorizes all uses normally accessory, auxiliary or incidental thereto.” Zahn v. Board of Adjustment, 45 N.J. Super. 516, 521-22 (App. Div. 1957). The enumerated permitted accessory uses set forth for a particular zoning district are intended “only to provide examples of valid accessory uses for ease of administration” but were not intended to exclude accessory uses implied as a matter of law as properly accompanying the permitted principal use. State v. P.T.&L. Construction Co., 77 N.J. 20, 26 (1978)

Courts have established a two-pronged standard to determine whether a proposed accessory use, which is not specifically permitted, nevertheless constitutes a customarily incidental use that must be permitted as a matter of law. That test requires a finding of (a) commonality, meaning a determination whether the use is “so necessary or commonly to be expected that it cannot be supposed that the ordinance was intended to prevent it”, and (b) impact on the surrounding neighborhood and zoning plan. Tanis at 604-06; P.T. & L. Construction Co. at 27. The question of whether an accessory use is customarily associated with a primary use has been described as involving an analysis of “whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use.” Colts Run Civic Association v. Colts Neck Township Zoning Board of Adjustment, 315 N.J. Super. 240, 250-51 (Law Div. 1998). The question is not “how often the primary use requires or involves the alleged accessory use, but whether incidents of the accessory uses are often found in conjunction with this particular primary use.” Tanis at 604.

Arguments in Support of Characterizing Drive-Thru Facility as an Accessory Use

Against this backdrop, and following what appears to be a second remand to the Board, the court considered whether a drive-thru facility is “customarily incidental” to a pharmacy and therefore constitutes a valid accessory use. The applicant presented four witnesses: a Walgreen’s regional manager; a traffic engineer; a real estate consultant; and a professional planner. The evidence established that (a) Walgreen’s and its competitors, over the preceding six (6) years, had utilized drive-thru windows; (b) ten (10) out of the fourteen (14) Walgreen’s stores in New Jersey had drive-thru facilities, including two that were approved by the Township of Edison; (c) the existence of the drive-thru would increase customer convenience while reducing the need for on-site parking; (d) a survey of prominent engineering firms disclosed that of fifty (50) pharmacy applications, forty-eight (48) of them proposed a drive-thru facility; (e) a survey of more than sixty (60) existing pharmacies in non-urban locations determined that every one of them had a drive-thru facility; and (f) a drive-thru facility was completely consistent with the definition of “accessory use” in the zoning ordinance.

Arguments in Opposition to Characterizing Drive-Thru Facility as an Accessory Use

Objectors presented their own professional planner who testified that (a) drive-thru windows were not common in the subject zoning district; (b) the zoning ordinance only mentions drive-thru facilities in conjunction with banks, leading to the conclusion that the intent was to exclude them when associated with other uses; and (c) the impact of the drive-thru window would adversely affect the neighborhood and “pedestrianism” while at the same time attracting additional traffic and destroying the historic character of the site.

The Court’s Legal Analysis

Recognizing that “new legislation, enlightened ideas, and advances in technology will undoubtedly affect what society ultimately learns to accept as compatible uses”, the court upheld the Board’s finding that the drive-thru facility constituted a permitted accessory use. Specifically, it relied on the Board’s conclusion that the drive-thru window would be “incidental to and bear a significant relationship to the main use.” It also found persuasive the fact that Walgreen’s and its competitors for the preceding six (6) years had been building stores with drive-thru facilities and, in particular, that the Township of Edison had itself approved three prior applications for drug stores having drive-thru facilities. The court also rejected the objectors’ contention that Tanis requires an assessment of the project’s impacts, and that in this instance, such impacts demand denial of the project. Instead, the court concluded that even to the extent such an assessment is required, it necessarily must be limited to only the impacts attributable to the drive-thru facility rather than those of the entire project. Moreover, the court deferred to the Board’s conclusions that there would be no such impacts, finding that the record “demonstrated that the drive thru windows alleviated the need for as much on-site parking as might otherwise have been necessary and helped to eliminate the stacking of cars trying to enter and exit the site” (emphasis in original). Finally, with respect to objectors’ claim that the drive-thru facility would adversely affect the site’s historic significance, the court dismissed these concerns on the basis that the site was not listed on any registry of historic places, explaining that the Board lacked legal authority to consider this issue in absence of an enabling ordinance.

Potential Import of the Court’s Decision

This decision is important for several reasons. First, based on the nature of the evidence that the court found adequate to establish accessory status, future applicants will have a clearer idea of how to go about proving that a particular activity is accessory. Second, reliance on the use of drive-thru facilities by pharmacies for a period of only six (6) years as adequate to establish that the activity is “customarily incidental” suggests that an activity can become “accessory” fairly quickly. Finally, with respect to drive-thru facilities in particular, the same logic and reasoning should apply in the case of banks and fast-food restaurants, where accessory drive-thru facilities are not expressly permitted or prohibited, since both of these uses have a lengthy history of having drive-thru facilities associated with them. That approach will not work in Edison, however, since banks are expressly allowed to have drive-thru facilities subject to conditional use requirements, and the ordinance specifically prohibits drive-thru windows “or other physical appurtenances designed or used to serve food to customers.”

Since Stochel is a trial court decision, it is of limited precedential value, although its cogent reasoning could be used to persuade other courts, as well as planning boards and boards of adjustment, to reach the same conclusion.