In this case, the gas station property straddles a zoning district boundary with property in both residential and business districts. The applicant’s predecessor in title had obtained a variance for the commercial use in 1966 and the applicant sought to expand the permitted use. The applicant believed it could expand its use where the expansion fell within the limits proscribed by city ordinance 170-10 (E).
The ordinance at issue states in pertinent part that:
“Where a district boundary divides one (1) lot and more than fifty percent (50%) of the area of such lot lies in the less restricted district, the regulations prescribed by this chapter for the less restricted district may apply to the remained of said lot up to a distance of not more than fifty (50) feet from the district boundary. In no case, however, shall such extension of the less restricted district be permitted closer than one hundred (100) feet to any street line in the more restricted district.”
The petitioner challenged the Superior Court and Zoning Board affirmance on two grounds:
- That they erred in upholding the decision that extension of use could be exercised without board approval; and
- That the superior court decision was unlawful and unreasonable because the applicant’s driveway and utilities are commercial uses that extend more than the permitted fifty feet into the residential zone.
With respect to the first issue, the Court found that extension of use within the limits of the ordinance is a right that may be exercised by a property owner without approval of the board. This conclusion is based on a plain reading of the ordinance, which reveals no language “that either expressly or impliedly directs the property owner to seek board approval prior to extending the usage or property.” The Court followed up by citing a similar New York ordinance that expressly delegates authority to the Board of Appeals to exercise discretion on the extension of use.
On the second issue, the Supreme Court affirmed the superior court decision finding that the commercial use of the driveway is permitted pursuant to the 1966 variance. The Court noted that the variance pre-dated the 1979 enactment of the ordinance at issue and that the ordinance clearly states that it does not apply to uses of land to the extent they are used at the time of enactment. The facts indicate that the driveway was in commercial use in 1979 and that the project does not call for any modification or extension of the driveway into the residential district. The Court also found that the telephone, electric and sewer connections for the project that lie in the residential district are not limited or regulated by the 50 foot limitation since those types of utility uses would be permitted in a residential district anyway.