by: Greg Ricciardi
According to the New Jersey Supreme Court, in certain circumstances the answer is yes. On June 16, 2011, the Court held that a driveway is a principal use where, pursuant to local zoning, the driveway does not meet the definition of an accessory use. Moreover, depending on the circumstances, you may need difficult to obtain and costly variances to get your driveway approved. How could this happen?
The answer lies in the curious case of Nuckey v. Borough of Little Ferry Planning Bd. These are the facts. A developer owns multiple lots and wants to build a hotel. One of the lots has no highway access. To remedy this issue, the developer proposes to build a driveway on an adjacent lot that would continue across the corner of another lot owned by the same principals as the developer. This proposed driveway would provide the needed highway access for the hotel. Sounds like a simple accessory use right? Herein lies the rub.
The local land use ordinance in this case defines an accessory use as “ a use which is customarily incidental and subordinate to the principal use of a lot or a building and which is located on the same lot.” Because the driveway serves a different lot, it cannot be accessory. Therefore, the driveway is a principal use.
This, however, is not the end of our story. It turns out that there was a pre-existing, non-conforming use on the same lot as the proposed driveway. As a result, the proposed driveway was deemed a second principal use and the expansion of the pre-existing, non-conforming use. Thus the developer was required to obtain use variances pursuant to N.J.S.A. 40:55D-70(d)(1) and (d)(2) respectively.
But wait, despite these facts, aren’t we just talking about a driveway? Surely there must be some de minimis exception for a small driveway? This is precisely the argument that was raised by the developer. In fact, the de minimus argument was successful in the Appellate Division. However, the Supreme Court reversed, concluding that the courts have never applied the de minimis rationale in considering the need for a use variance to permit an otherwise prohibited use. Where, as here, the zoning ordinance permits only one principal use, the addition of an entirely new principal use is prohibited and, by its very nature, cannot be inconsequential. Put plainly, “[a]lthough access may be a reason for granting a variance, it is not a justification for dispensing with one. “
This case serves as a reminder that every land use matter is truly unique. Even something as simple as a driveway, traditionally an accessory use, can turn out to be a legal conundrum.
Pete's Take 