GARDEN STATE CHECK CASHING SERVICE, INC., et al. v. BOARD OF ADJUSTMENT TOWNSHIP OF IRVINGTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1615-04T21615-04T2

GARDEN STATE CHECK CASHING

SERVICE, INC., a New Jersey

Corporation, and RICHARD

KLEIN,

Plaintiffs-Appellants,

v.

BOARD OF ADJUSTMENT OF THE

TOWNSHIP OF IRVINGTON, RAPID

CHECK CASHING INC., a New Jersey

Corporation, JOSEPH YEADON and

PHILLIP LIGUS,

Defendants-Respondents.

______________________________________

 

Submitted March 6, 2006 - Decided April 27, 2006

Before Judges Cuff, Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Docket No.

ESX-L-8272-02.

Winne, Banta, Hetherington, Basralian & Kahn, attorneys for appellant (Scott K. McClain and

Robert E. Rochford on the brief).

Michael K. Fielo, attorney for respondents, Rapid Check Cashing, Joseph Yeadon and Phillip Ligus (Mr. Fielo, of counsel, and Patricia Ann Hollingsworth on the brief).

Childress & Jackson, attorneys for the City of Irvington Board of Adjustments (Ryan Linder,

on the brief).

PER CURIAM

This is a prerogative writs action. Plaintiffs, Garden State Check Cashing Service, Inc., and Richard Klein, appeal from an order of the Law Division dismissing their complaint challenging the grant of a use variance to a competitor business, defendant, Rapid Check Cashing, Inc. We affirm.

Defendant purchased a two-story building at 1095 Clinton Avenue in Irvington, New Jersey. The building formerly housed a bank, and although located in the downtown business center, at the time of purchase, it was an abandoned eyesore. Defendant opened a financial planning and accounting office in a portion of the building and sought to open a check cashing store in a vacant storefront at the site.

Located at one of Irvington's main intersections, the property is zoned B-1, as a Primary Business District. Other uses in the area include plaintiffs' check cashing service, fast-food and Chinese restaurants, a post office, tax preparer and bus depot. Defendant's building fronts a main thoroughfare and is fifty feet from a municipal parking lot as well as on-street parking. It is also convenient to public transportation.

Defendant required a use variance to operate its proposed check cashing business in this zone. However, the matter first came before the Irvington Board of Adjustment (Board) on a February 10, 2000 determination by the city zoning officer that defendant did not need a use variance. On June 20, 2000, the Board reversed that decision and consequently, defendant filed its application for a use variance on July 18, 2000.

The application was heard by the Board on September 5, 2000. Several members of the community spoke in favor of the proposal, citing the need for another check cashing establishment in addition to plaintiffs', given the change in area demographics and the growing demand for such services among the city's small businesses and increasingly large numbers of low-income and senior citizens. In support of this claim, they noted the long lines at plaintiffs' business that "looped around the corner," and the frequent two-and-one-half hour waits to access plaintiffs' check cashing services. Defendant's location, on the other hand, near public transportation, was considered "prime" and more convenient especially for the elderly customers and others in need of these services.

Those who spoke against the proposal, including plaintiffs' expert, Theodore Ehrlich, cited the existing problem of double parking. Yet, Ehrlich based his opinion simply on observing the area on a single Friday afternoon for one hour. In any event, there was a municipal parking lot across the street from defendant's building as well as on-site street parking, and even Ehrlich acknowledged that the problem would be alleviated by local police enforcement of municipal double parking regulations. Moreover, reports from Irvington's police and fire departments, and the city engineer, voiced no objection to the proposal which, they concluded, would not cause a traffic or parking problem. On the contrary, the grant of a variance would actually ease the congestion and double parking problem caused by plaintiffs' business.

At the conclusion of the hearing, the Board, by resolution adopted October 17, 2000, granted defendant a use variance to operate a check cashing business at 1095 Clinton Avenue. Thereafter, plaintiffs filed a verified complaint in lieu of prerogative writs, challenging the grant of the use variance. Finding the Board's resolution conclusionary, the Law Division reversed and remanded the matter for specific findings of fact. Pursuant to the remand order, the Board convened a hearing on June 5, 2002, although no new evidence or testimony was considered. Finding that the proposal would benefit the public because of its convenient location, proximity to public transportation, sufficient parking and need for such services among Irvington's 60,000 residents, the Board, by resolution of July 16, 2002, approved the use variance.

Plaintiffs once again appealed to the Law Division by action in lieu of prerogative writs. By order of November 5, 2004, Judge Schott, who was not the remanding judge, affirmed the Board's grant of the use variance and dismissed plaintiffs' complaint with prejudice, reasoning:

Limiting myself to the issue of what they concluded in the resolution, I'm satisfied that the specific findings in the resolution are supported by the testimony and evidence they had before them . . . . [I]t is necessary, when one reads the findings, to perhaps review the record to make . . . sure that the context in which the findings are made is understood. For example, the reference to public transportation and the population, and, for example, why it would be important that it be near public transportation become apparent when the record is read. There is comment and discussion about the elderly people needing check cashing services, and people who may of a socioeconomic class that banking services are not as accessible to them as a person who is of an upper socioeconomic class. And in that regard, for example, there's a specific conclusion drawn by the board that the use would help provide a full and complete range of services to local residents, particularly those not adequately served at present by an existing financial institutions.

So to the extent that the court has gone back to the record to read the particular statements made by individual board members, it has done so not to supply findings that are nowhere apparent in the face of the resolution or conclusions that are not apparent from the face of the resolution, but rather to ensure that there is context given to the particular findings and conclusions reached.

And in that regard, the court is satisfied that the board made all the findings necessary to support its conclusions that the variance could be granted without substantial detriment to the public good, and without substantially impairing the intent and purpose of the zoning plan.

[T]he board concluded the site is particularly suited for the proposed use because it was previously used and constructed as a bank, the location is on a major street, it's adjacent to other retail establishments, and the town was in need of the services, because the existing check cashing service was not meeting the needs of the town's population.

The nine facts found, coupled with the conclusions drawn . . . support the conclusions drawn, although the record has to give context to those facts. The facts drawn were supported by the record before the board, the conclusions drawn were supported by the facts found by the board. And once those conclusions of fact, or those findings of fact were determined to be supported by the record, and the conclusions supported by the facts, it's not for the court to substitute its judgment for the judgment of the board in reaching the necessary conclusions or the conclusions necessary to justify the granting of the D variance. Those conclusions were reached in the resolution . . . . [and] are supported by the facts found by the board, and the facts found by the board are, in turn, supported by evidence that was presented to the board . . . the evidence was presented in the first proceeding, and then commented on by the various board members.

. . . .

The board was persuaded that this property was particularly well suited . . . . And the reasons . . . were set forth specifically in the resolution. That is that the location preciously used to be a bank. Now, no doubt the bank provides more services than just a check cashing service. But at the same time, cashing checks is one of those services the bank provides, and the board specifically found that that had been the use that the property had been put to. And so the check cashing service was closely related to, at a bare minimum, the use that had previously been there.

Additionally, the board was persuaded that its close proximity to public transportation made it particularly well suited to . . . the particular use that was being proposed. And made that conclusion against the background of their further conclusion that the population to be serviced by the check cashing service was not then presently being well serviced, because they had testimony before them that there were lines and delays in . . . providing the services . . . they referenced senior citizens . . . [and] certain depressed socioeconomic conditions -- that that population was dependent upon public transportation. Providing a service to people who can't get to it is not providing a service at all.

I'm also satisfied that the board did consider all the other factors. There was testimony about parking; there were reports from the fire department. They considered all that was necessary to be considered and made the appropriate determinations based on the evidence . . . determinations supported by the evidence that was presented to them. Their facts were well within the evidence that was presented to them. And it's not for this court to substitute its judgment on those conclusions.

So for that reason, judgment will be entered for the defendants . . . . [T]he plaintiff's complaint is dismissed.

Our scope of review in cases of this nature is limited. We, as well as the trial judge, ordinarily accede to zoning and planning determinations by local boards as land use decisions are fundamentally local discretionary decisions. Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58 (1999); Kaufmann v. Planning Bd. for the Tp. of Warren, 110 N.J. 551, 558 (1988); Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296-97 (1965). The rationale is "that local citizens familiar with a community's characteristics and interests, [rather than courts] are best equipped to assess the merits of variance applications." Med. Ctr. at Princeton v. Tp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App. Div. 2001).

Thus, a decision of a municipal zoning board is presumptively valid, Harvard Enterprises, Inc. v. Bd. of Adjustment of the Tp. of Madison, 56 N.J. 362, 368 (1970), and should be sustained by a reviewing court if it "is founded on adequate evidence." Burbridge v. The Governing Body of the Tp. of Mine Hill, 117 N.J. 376, 385 (1990). "[T]he decision will be set aside only if it is arbitrary, capricious, or unreasonable." Pierce Estates Corp., Inc. v. Bridgewater Tp. Zoning Bd. of Adjustment, 303 N.J. Super. 507, 514 (App. Div. 1997); see also New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999).

Authority of a board of adjustment to grant a use variance from zoning restrictions is governed by N.J.S.A. 40:55D-70, which states, in pertinent part:

The board of adjustment shall have the power to:

d. In particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: (1) a use or principal structure in a district restricted against such use or principal structure . . . .

. . . .

No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.

[N.J.S.A. 40:55D-70.]

"An applicant satisfies the requirements of subsection d when both 'positive' and 'negative' criteria are met." Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Tp., 172 N.J. 75, 82 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 4 (1987)). The positive criteria require an applicant to "establish 'special reasons' for the grant of the variance." Sica v. Bd. of Adjustment of Tp. of Wall, 127 N.J. 152, 156 (1992). "The statutory phrase 'special reasons' has been broadly defined as those criteria that promote the purposes of zoning, see N.J.S.A. 40:55D-2, with the promotion of the general welfare being the zoning purpose which 'most clearly amplifies the meaning of special reasons.'" Pierce Estates Corp., Inc., supra, 303 N.J. Super. at 515 (quoting Medici, supra, 107 N.J. at 18). Additionally, "where the use is not of a type which itself provides special reasons [i.e., a school or a hospital], there must be a finding that the general welfare is promoted because the proposed use is particularly suited to the location for which the variance is sought." Id.; see also Stop & Shop Supermarket Co. v. Bd. of Adjustment of the Tp. of Springfield, 162 N.J. 418, 431 (2000) (when an applicant seeks a use variance for a commercial endeavor that is not inherently beneficial, the requisite "proof of special reasons focuses exclusively on the special characteristics of the property . . . ."). The applicant bears "the burden of establishing . . . 'that the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought.'" Stop & Shop Supermarket Co., supra, 162 N.J. at 431 (quoting Kohl v. Mayor & Council of the Borough of Fair Lawn, 50 N.J. 268, 279 (1967)).

To satisfy the negative criteria, in addition to showing that the variance can be granted without substantial detriment to the public good, an applicant must demonstrate through "enhanced qualify of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici, supra, 107 N.J. at 21. "[T]he statutory focus is on the variance's effect on the surrounding properties." Id. at 23 n. 12. The Board is responsible for "evaluat[ing] the impact of the proposed use variance upon the adjacent properties and determin[ing] whether or not it will cause such damage to the character of the neighborhood as to constitute 'substantial detriment to the public good.'" Ibid. (quoting Yahnel v. Jamesburg, 79 N.J. Super. 509, 519 (App. Div.), certif. denied, 41 N.J. 116 (1963)).

Furthermore, addressing the "enhanced proof" prong of the "negative criteria" element, "the proposed variance" must be reconciled "with the governing body's zone plan, evidenced through its ordinance." Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 214 (App. Div. 1999). For example, proof may consist of evidence "that the character of a community has changed substantially since the adoption of the master plan and the zoning ordinance may demonstrate that a variance for a use omitted from the ordinance is not incompatible with the intent and purpose of the governing body when the ordinance was passed." Medici, supra, 107 N.J. at 21-22.

Here, the evidence satisfies both positive and negative criteria. Defendant's proposed use is particularly suited to that location. In the first place, a bank has historically operated from that building and indeed financial institutions are permitted uses in the business district. In fact, Yeadon already operates a complimentary financial services business in an adjoining office in the same building. Moreover, the building is proximate to the only other check cashing business in the area, which evidently is not meeting the growing demand for such services among Irvington's 60,000-member urban community. Allowance of defendant's competing business would not only relieve the congestion at plaintiffs' operation by helping satisfy a demonstrated need, but also would further serve the general public good by creating additional tax revenues and employment opportunities and by improving and filling a vacant site. Also, the building is located on a major thoroughfare and intersection, accessible by public transportation and the physical space is large enough to accommodate customers indoors without "lining up on the sidewalk."

In terms of the negative criteria, we are equally satisfied that the variance could be granted without substantial detriment to the public good and will not "substantially impair the intent and purpose of the zoning plan." As to the former, the only problem identified was double parking, but the evidence clearly showed that the condition was remediable by local traffic enforcement and, in any event, obviated by both on-street parking and a municipal parking lot across the street. Significantly, police, fire and engineering officials voiced no objection to the proposal.

As to the latter, we find no reason to disturb the finding below that defendant's proposal would cause no impairment to the zoning plan. The business would be in an existing structure located in a B-1 zone, a primary business district that presently authorizes banks and other financial institutions. There will be no damage to the character of the neighborhood. Moreover, the original zoning plan, which does not permit check cashing businesses, has not been reviewed in over twenty years and, as the record well indicates, does not reflect the changing demographics and consumer business needs of the area.

Despite sufficient evidential support in the record for the grant of a use variance, plaintiffs nevertheless argue that the judge on remand was bound by the earlier decision of September 17, 2001, under the "law of the case" doctrine. We disagree.

In the first place, the "law of the case" doctrine is a discretionary rule that "is 'restricted to preventing relitigation of the same issue in the same suit.'" Brown v. Tp. of Old Bridge, 319 N.J. Super. 476, 494 (App. Div.) (quoting Slowinski v. Valley Nat'l Bank, 264 N.J. Super. 172, 180-81 (App. Div. 1993)), certif. denied, 162 N.J. 131 (1999). Typically, it "'applies to the principle that where there is an unreversed decision of a question of law or fact made during the course of litigation, such decision settles that question for all subsequent stages of the suit.'" State v. Hale, 127 N.J. Super. 407, 410 (App. Div. 1974) (quoting Wilson v. Ohio River Co., 236 F. Supp. 96, 98 (S.D.W. Va. 1964), aff'd, 375 F.2d 775 (4th Cir. 1967)). This is based on "the sound policy that when an issue is once litigated and decided during the course of a particular case, that decision should be the end of the matter. Ibid. (citing United States v. U.S. Smelting Refin. & Mining Co., 339 U.S. 186, 198, 70 S. Ct. 537, 94 L. Ed. 750, reh'g denied, 339 U.S. 972, 70 S. Ct. 994, 94 L. Ed. 1379 (1950)). "'Prior decisions on legal issues should be followed unless there is substantially different evidence at a subsequent trial, new controlling authority, or the prior decision was clearly erroneous.'" Underwood v. Atl. City Racing Assoc., 295 N.J. Super. 335, 340 (App. Div.) (quoting Atl. Employers Ins. Co. v. Chartwell Manor School, 280 N.J. Super. 457, 470 (App. Div. 1995), certif. denied, 149 N.J. 140 (1996)).

The doctrine is intended "to be applied flexibly in the interest of justice, even if it requires relitigation of an earlier ruling prior to final judgment." State v. Munoz, 340 N.J. Super. 204, 219-20 (App. Div.) (citing Southport Dev. Group, Inc. v. Tp. of Wall, 295 N.J. Super. 421, 430 (Law Div. 1996), aff'd on other grounds, 310 N.J. Super. 548 (App. Div.), certif. denied, 156 N.J. 384 (1998)), certif. denied sub nom., State v. Pantoja, 169 N.J. 610 (2001); see also Ranalli v. Edro Motel Corp., 298 N.J. Super. 621, 624-25 n.2 (App. Div. 1997) (noting that "[t]he law of the case doctrine is 'a non-binding discretionary rule'") (quoting Pressler, Current N.J. Court Rules, comment 4 on R. l:36 (1997)); Sisler v. Gannett Co., 222 N.J. Super. 153, 159 (App. Div. 1987) ("The doctrine is discretionary, and the court is never irrevocably bound by its prior interlocutory ruling in the same case."), certif. denied, 110 N.J. 304 (1988). Because the "law of the case" doctrine is discretionary, it "calls upon a judge to balance deference toward a prior ruling with concern for the pursuit of justice, especially, the search for the truth." Munoz, supra, 340 N.J. Super. at 220 (citing State v. Reldan, 100 N.J. 187, 205 (1985)). However, it "should not be used to justify an incorrect substantive result." Hart v. City of Jersey City, 308 N.J. Super. 487, 498 (App. Div. 1998).

Not only is the doctrine discretionary, but also it has no application in this particular case. The judge who reviewed the Board's first resolution of October 17, 2000, made no definitive ruling on the substantive merits of the application that would operate to preclude further review. On the contrary, the judge remanded the matter "to the Board of Adjustment for Specific Findings of Fact . . . ." In doing so, the judge specifically stated:

[i]n making these findings the board should state with specificity the basis for its decision and the findings it has made that the variance at issue is not inconsistent with the master plan and Zoning Ordinance and must set forth the basis and findings for the negative criteria and special reasons.

In fact, the judge rejected "[t]he argument of plaintiff[s] that this court should not remand this matter based on its assertion that no such findings can be made by the board based on the record below," and expressly noted that "[t]he Board is free to review the totality of the evidence and information presented and make its findings as required by law." This is precisely what the Board did on remand. In affirming the Board's July 16, 2002 Resolution, Judge Schott explained her rationale:

I reviewed this record to determine whether or not the resolution adopted by the board, whether their factual findings were supported by the record before them, and whether the conclusion -- by the factual findings I mean what was in the resolution, as a factual finding, and whether their conclusions about the balances needing to be stricken under Title 55, whether those conclusions were supported by the facts as found.

I have determined the answer to both of those questions is . . . in the affirmative. I have not engaged in a process where I look what they did when they were before [the remanding judge], and asked the question in comparison to what [the remanding judge] concluded was it good enough, where does this fit. I've just made a determination whether or not, as I've already said, the facts are supported by the record and the conclusions were supported by the facts in this matter.

We agree, and affirm substantially for the reasons stated in Judge Schott's oral opinion of November 5, 2004.

Affirmed.

 

Defendant, Joseph Yeadon, is a principal of defendant, Rapid Check Cashing, and hereafter both will be collectively referred to as "defendant."

(continued)

(continued)

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A-1615-04T2

April 27, 2006