250 PASSAIC, L.L.C v. TONYMAR, L.L.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2634-07T12634-07T1

250 PASSAIC, L.L.C.,

Plaintiff-Appellant,

v.

TONYMAR, L.L.C., and

THE BOARD OF ADJUSTMENT

OF THE CITY OF NEWARK,

Defendant-Respondents.

_____________________________

 

Argued December 15, 2008 - Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-10018-05.

Michael Edelson argued the cause for appellant (Hellring Lindeman Goldstein & Siegal, L.L.P., attorneys; Mr. Edelson and Bruce S. Etterman, on the brief).

Tonya M. Smith argued the cause for respondent Tonymar, L.L.C. (Giantomasi & Oliveira, attorneys; Ms. Smith, on the brief).

Piro, Zinna, Cifelli, Paris & Genitempo, attorneys for respondent The Board of Adjustment of the City of Newark (Angelo Cifelli, Jr., on statement in lieu of a brief).

PER CURIAM

This zoning case involves a decision by the Newark Board of Adjustment to grant defendant Tonymar, L.L.C. a use variance to construct a massive carwash near the Passaic River in Newark (the City). The City's Master Plan designates the area for waterfront development, and its zoning ordinance prohibits car washes. Plaintiff 250 Passaic, L.L.C. appeals from a trial court order dated January 14, 2008, finding that the Board's decision was not arbitrary and capricious but remanding the variance application to the Board for more specific findings of fact. Because we conclude that, regardless of any further factfinding the Board might make, the record does not contain sufficient evidence to support a use variance, we reverse.

I

On February 25, 2004, Tonymar applied for a use variance to construct a carwash and oil change facility on Block 445, Lots 1-37 (the property) near the intersection of McCarter Highway and Passaic Street in Newark. It is undisputed that the City's zoning ordinance prohibits car washes in the proposed location, which is in the I-2 Industrial zone, as well as prohibiting carwashes anywhere in the city.

Significantly, on December 6, 2004, the City's Central Planning Board adopted the Land Use Element of the Master Plan for the City of Newark. Part of that plan was the creation of an S-W waterfront zone, which included the area in which Tonymar proposed to build the carwash. The relevant portion of the Master Plan provides as follows:

This designation is applied to that portion of the Passaic River waterfront that the City intends to redevelop as a mixed-use environment residential retail, entertainment and open space and recreation uses and office uses with a particular emphasis and orientation to waterfront activities, i.e., marinas, boating, walkways along the waterfront, outdoor cafes, etc. Design principles articulated in the Passaic Riverfront Redevelopment Plan should be incorporated into the zoning designation for this area which in addition to encouraging mixed uses and a waterfront orientation and public access, should call for a protection of view corridors, setbacks from the waterfront to provide waterfront esplanades with public access, active ground-floor uses at the water's edge, pedestrian connections to residential neighborhoods behind the waterfront, and a uniform set of design standards for public improvements, including such items as lighting, paving, landscaping, street furniture, signage, colors, materials and style. The area to be designated S-W not only include[s] the area in the Passaic Riverfront Redevelopment Plan Study, i.e., the area of riverfront between Minish Park and Newark Bears and Eagles Riverfront Stadium, but all of the riverfront between the Passaic River and McCarter Highway stretching from the Belleville border in the north all the way to Penn Station in the downtown and then between the Passaic River and Raymond Boulevard from Penn Station into the North Ironbound neighborhood.

Much of the waterfront area adjacent to the downtown has been cleared and is ready for redevelopment. Portions of the area designated S-W Waterfront use between Newark Bears and Eagles Riverfront Stadium and Interstate 280 are still developed for industrial or retail or other uses, and north of Interstate 280, these areas contain mostly active industrial uses. As the market for waterfront development becomes established adjacent to the downtown and in the Passaic Riverfront Redevelopment area, it is hoped that such uses would spread northward and replace the older industrial and other uses along the waterfront.

II

The following relevant evidence was introduced at the variance hearing before the Board, which began in April 2005. The applicant first presented testimony from an architect, Albert Alvarez. He outlined the location of the property between McCarter Highway and Passaic Street in Newark, the configuration of the planned building, and its proposed use as a carwash, car detailing center and quick-lube facility. He also addressed traffic and parking issues.

The property owner, Mario Decosta, who was also the managing member of Tonymar, testified that he owned a large number of other carwashes, including a newly-opened facility elsewhere on McCarter Highway in Newark. The gist of his testimony was that the project would be a well-designed, environmentally sound, state-of-the art carwash, detailing, and oil-change facility. It would employ a maximum of twenty people. DeCosta testified that the property was a convenient location for a carwash because there was a lot of existing traffic in the area. In answer to a question from a Board member, DeCosta testified that he had not considered any other possible use for the property. He also testified that although he was seeking to subdivide the property, and place the carwash on one of the newly created lots, he had no current plans for other proposed lot.

The applicant also presented key testimony from Ilene Binyra, a licensed professional planner. She testified that she had reviewed two prior master plans, as well as the City's current master plan adopted in December 2004, and the zoning ordinance. Her testimony was designed to show that the site was "particularly suitable for the intended use," and to address the positive and negative criteria for purposes of obtaining a use variance. See N.J.S.A. 40:55D-70(d).

Binyra began by presenting photographs of the properties currently surrounding the site, including several industrial buildings, an existing carwash, a gas station, and a hotel. She testified that the existing industrial building on the site had been vacant since at least 1997. She testified that the "pattern development" in the areas was "largely industrial" with some vacant land and some residential properties.

She explained that "I-2" was the "second heaviest industrial zone." However, the I-2 zoning permitted residential, office and retail uses as well. "The only things that are really specifically prohibited are what I would consider noxious uses and they are spelled out . . . in . . . detail." According to Binyra, the current master plan identified the existing zoning ordinance as being "decades out of date." Based on that language, she argued that modern carwashes were actually consistent with the intent of the zoning ordinance.

Binyra testified that the zoning ordinance prohibited laundries and carwashes, although there currently were many of them in the City. In her view, the prohibition on carwashes was aimed at old-fashioned facilities as opposed to the "third" or "fourth generation" carwash proposed by the applicant. Old-style carwashes were undesirable because they required cars to "stack" or "queue" on public streets, and discharged soapy water into the storm sewers instead of recycling the wastewater. They were also housed in small, unattractive buildings. She testified that modern carwashes had eliminated all of these problems and, therefore, in her opinion were not the kind of "noxious uses" the zoning ordinance was intended to prohibit. She also contended that although high-rise residential uses were permitted, they were unlikely to be constructed in proximity to old industrial buildings.

Binyra testified that the site was "particularly suited" for the proposed carwash for the following reasons: the site was "auto oriented" because it was located on McCarter Highway, a very busy road. Therefore, instead of creating new traffic, the carwash would draw business from existing traffic. It was also located on a "northbound lane leaving the city" and therefore would be less likely to affect any adjacent residential zones within the City.

Binyra also contended that while "the area along McCarter Highway, particularly north of 280" had "a number of new developments," the carwash site was in an area that was still largely industrial, except for a newly-built hotel. Further, the site had been vacant for a long time and, being a large property, was not "easily and readily reusable." She testified that it would be better for the City's image to have some development on the property, instead of a "derelict site." She also contended that because the property had no direct access to McCarter Highway, it might not "necessarily" be "advantageous for a commercial use." She did not, however, testify that the property could not be developed with a use that would be consistent with the existing zoning and with the master plan.

According to Binyra, a carwash was not an appropriate use for a residential area. Additionally, "[i]t's certainly nothing that you want in your downtown commercial area where it should be pedestrian oriented." Hence, she testified, the site was appropriate for the area as it was currently developed, because it was a high-traffic area with few residential buildings.

After testifying about "site suitability," Binyra next addressed the positive and negative criteria. She testified that the project met the positive criteria, or "special reasons," because it was located in an industrial area, was "vehicular oriented" and not near residential zones, was away from pedestrian activity, was safe and environmentally sound in design, and promoted "the free flow of traffic." She also testified that the building would be attractive.

Binyra also testified that the project satisfied the negative criteria. First, the project would pose no "substantial detriment to the public good" because of its "adequate access" and appropriate traffic circulation, its attractive architecture and landscaping, remoteness from residential areas, environmental safety, and creation of "30 full-time jobs." Second, "[i]n terms of impairment to the intent of the zoning ordinance and master plan," Binyra insisted that as a new generation carwash, the project would be "generally consistent with your zoning ordinance." She also contended that the carwash would be consistent with the master plan.

Binyra testified that the master plan created a "special waterfront district." However, she contended that the plan contemplated waterfront uses "largely" in "the area below [Route] 280" and "some of the redevelopment areas." She testified that the site was outside this area:

This is outside of a redevelopment area . . . . The redevelopment areas are further south. . . . [The master plan] talks about mixed use along the waterfront and mixed use as well as possibly residential between McCarter Highway and Passaic.

This area, though, as the master plan says, it carried the south waterfront all the way up to the Belleville border.

I think you will be writing a new master plan prior to any of this area being changed over.

What a master plan does, it provides a vision and the idea would be to provide a vision of what's going to be happening along the Passaic River. This use is not adjacent to the Passaic River. . . . This is just outside that use.

She also testified that the building would be low, attractive, would not block any water views, and would provide light, air and open space. Additionally, she relied on her earlier testimony that "what's proposed here was never contemplated" by the prohibition on carwashes in the zoning ordinance.

On cross-examination, Binyra admitted that the site was part of the waterfront district. She also conceded that the "mixed uses" contemplated by the master plan for this district were "residential, retail, entertainment, open space, recreational uses, office uses with a particular emphasis towards . . . waterfront activities, marinas, boating, walkways along the waterfront, [and] outdoor cafes." However she insisted that "I don't think my testimony is in conflict with any of that."

When asked "[do] any of those uses . . . that the master plan foresees for this area include a . . . car wash?" Binyra responded, "It's not that specific, no. It's not that specific and it largely deals with the waterfront and this is not waterfront." She also agreed that new residential housing had recently been constructed near the site, and that that there was a new hotel across the street from the site.

To rebut Binyra's testimony, the objectors presented testimony from a licensed planner and architect, William Mikesell. He testified that he was familiar with the site, because he lived nearby and had been involved with building projects in the area. While Binyra portrayed the area as an industrial wasteland, in which a carwash would represent an improvement, Mikesell testified that new office buildings, a stadium, and a new hotel had been constructed nearby. He explained that the City had "already taken steps to try to acquire a 40 foot right-of-way along the river for a walkway. So I don't think that necessarily the concept of this being a specific waterfront district is totally out of order."

Mikesell further explained the concept of the waterfront district: "You're trying to have mixed use residential and commercial. You want pedestrian-oriented activities so that people can have access to the river front." He contended that the site was actually part of the waterfront development plan, explaining that "[s]ome of the goals of the waterfront, the master plan . . . is to extend visual and pedestrian connections from residential neighborhoods to the river." In his view, the site was ideal for development of the kind that would be consistent with a waterfront district. In other words, unlike Binyra, who characterized the waterfront as only the narrow strip of land next to the river itself, Mikesell explained that the entire district was planned for waterfront-related uses. To accomplish that goal, the master plan contemplated that the City would "try to reserve opportunities for development" that would be consistent with the plan. According to Mikesell, a carwash and quick lube facility was not the kind of "mixed use" contemplated in the master plan.

Mikesell testified that there had been a change in the type of new construction within two blocks of the site, and most of the new construction had been residential: "So there's been a very strong move towards a different type of use." With the disappearance of industry from Newark "[w]e have to come up with new uses and better uses for our land," and "these large vacant parcels [such as the site] are ideal for that type of development." He also contended that the carwash would create light and noise problems for the existing residents of the houses nearby, particularly if the facility was open at night.

Mikesell also testified that the project did not satisfy the positive and negative criteria required for a use variance.

I don't think this is a suitable site. I think it's confusing access for motorists. . . . I see this site as too close to residential areas. I think it's in their face. I see it as a direct conflict with the Newark master plan. I see this as a large parcel that has great development potential.

. . . .

The site was cleared by the State of New Jersey with public dollars. Our money was used to get that property to the state that we see it in today, to get rid of the visual nuisance of that vacant building.

So I see that vacant land as an opportunity for new types of development. I don't see it as an appropriate place for a car wash.

He also testified that the environmental features of the planned car wash were neither new nor site-specific. Wastewater recycling had "been the state law since sometime in the '80's. . . . this car wash could be anywhere and the recycling of the water would take place." He also contended that the project was inconsistent with the overall plan to improve the visual image of McCarter Highway:

I also do not see this as an appropriate portal to the City of Newark from the north and I don't think the state intended to spend all that money so we could all be looking at the New York/Metropolitan [area's] largest car wash.

Addressing the negative criteria, Mikesell testified that "the proposed use of this site puts a dagger in the heart of what's potentially a wonderful new part of Newark in terms of development." He contended that "the idea of pedestrian[-] friendly uses is the goal of this master plan for this specific district." On the other hand, he testified, "[a] car wash has cars coming and going and getting the sidewalks dirty. Its just . . . the antithesis of what we would want to see in terms of using this land."

In answer to questions from the Board, Mikesell testified that the highest and best use for the site was residential, office or hotel development. The applicant's counsel did not cross-examine Mikesell.

Alberto Santana, the owner of the nearby Comfort Suites hotel, also spoke against the application. He contended that his hotel was built "with the vision of being part of the Newark Renaissance" and he had spent "over $7,000 in marketing promoting Newark as a destination." He believed that a car wash was inconsistent with that goal.

According to Santana, "[w]e didn't build the hotel there to have a car wash as a neighbor . . . to have our guests walking all the way down that beautiful sidewalk that is being built right now to actually have an accident walking by a greasy sidewalk and water all over the place." He also believed that other investors would not locate projects in the area, because the car wash was inconsistent with the master plan for the district and would make the area less desirable. Santana testified that the site was ideal for "a beautiful housing development" or a "nice restaurant." He also contended that an office complex with apartments attached, or a "little strip mall" with retail stores would "do extremely well in that area."

In a resolution dated October 27, 2005, the Board approved the use variance application. The resolution did not mention or specifically address the master plan at all. In the resolution, the Board found as fact that the site was "vehicle-oriented . . . and not . . . pedestrian" oriented, because it was located on a busy highway, and that the proposed use would not create traffic problems and had adequate parking. The Board further found that "the property is ideally suited for this type of use because of its location" on a busy highway in the I-2 industrial zone "and not within a residential neighborhood or within the City's core development area." The Board found that the proposed carwash would generate additional tax ratables, would create jobs, and would be environmentally sound. The Board also found that the proposed structure would be "a beautiful[ly] landscaped and visually appealing site."

Based on these facts, the Board concluded that "the applicant has met the positive criteria by demonstrating that the site is particularly suited for the proposed use, and will result in many positive benefits to the City." The Board also concluded that "the benefits of allowing the proposed use at the proposed site substantially outweigh any detriments therefrom, especially in light of the [site plan] conditions which the Board has placed on the application."

Plaintiff filed an action in lieu of prerogative writs challenging the Board's decision as arbitrary and capricious, as failing to make sufficient findings of fact on critical issues, and as improperly granting site plan approval. In an oral opinion placed on the record on December 4, 2007, the trial court concluded that the Board's decision was not arbitrary and capricious because there was sufficient record evidence to support a variance, but the court also found that the Board's resolution was deficient in its factfinding and in its failure to harmonize its decision with the master plan. "The resolution here I find is devoid of clear and specific findings of fact concerning the positive and negative criteria for the granting of a commercial use variance. The resolution does not recognize the 'enhanced quality of proof' applicable in commercial use variance cases."

While we cannot agree with the trial court's decision, for reasons discussed later in this opinion, we also note that even if the court believed the record might provide a factual basis for the variance, the court should not have ruled on the "arbitrary and capricious" issue in advance of remanding the matter for more factfinding. A Board has an obligation to provide a complete explanation for its decision, including finding sufficient facts to address all issues pertinent to the grant of the variance. See N.J.S.A. 40:55D-10(g); Alpine Tower Co. v. Mayor of Alpine, 231 N.J. Super. 239, 248 (App. Div. 1989). Unless, as here, the record clearly cannot support the challenged variance, where a Board has issued a deficient resolution, a trial court should remand to the Board for a more complete resolution without placing the court's advance imprimatur on the grant of the variance.

III

In reviewing the trial court's decision, we employ the same standard of review that the trial court used to consider the Board's Resolution.

"When reviewing the decision of a trial court that has reviewed municipal action, we are bound by the same standards as was the trial court." Because of its "peculiar knowledge of local conditions," the Board's factual findings are entitled to substantial deference and are presumed to be valid. The Board's conclusions of law are subject to de novo review. However, "although we construe the governing ordinance de novo, we recognize the board's knowledge of local circumstances and accord deference to its interpretation."

[Grubbs v. Slothower, 389 N.J. Super. 377, 382-83 (App. Div. 2007)(citations omitted).]

We will uphold the Board's decision so long as it is not arbitrary, capricious or unreasonable, is supported by substantial record evidence, and is consistent with applicable law. See Medici v. BPR Co., 107 N.J. 1, 15 (1987); Northeast Towers, Inc. v. W. Paterson Zoning Bd. of Adjustment, 327 N.J. Super. 476, 493-94 (App. Div. 2000). However, we owe less deference to a board's grant of a variance than to a denial of a variance. Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75 (App. Div. 2006); Northeast Towers, supra, 327 N.J. Super. at 494. "This greater deference [to a denial] arises in part from the recognition that only exceptional cases warrant use variances because this state's legislative policy strongly favors 'land use planning by ordinance rather than by variance.'" Northeast Towers, supra, 327 N.J. Super. at 494 (citation omitted).

The granting of a use variance is governed by the Municipal Land Use Law:

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(d) (emphasis added).]

The statute requires that an applicant seeking a use variance satisfy both positive and negative criteria:

In general, the positive criteria require that an applicant establish "special reasons" for granting the variance. "The negative criteria require proof that the variance 'can be granted without substantial detriment to the public good' and that it 'will not substantially impair the intent and purpose of the zone plan and zoning ordinance.'"

When interpreting the statute, we have distinguished inherently beneficial uses from other uses. Generally, to satisfy the positive criteria, an applicant must prove that "the use promotes the general welfare because the proposed site is particularly suitable for the proposed use." To satisfy the negative criteria, in addition to proving that the variance can be granted "without substantial detriment to the public good," an applicant must demonstrate through "an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance."

[Smart SMR of New York, Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998)(citations omitted).]

An applicant can satisfy the positive criteria by showing that the proposed use is inherently beneficial, that the owner would suffer undue hardship without the variance, or that the use would serve the general welfare because the site is particularly suitable for the proposed use. Saddle Brook, supra, 388 N.J. Super. at 76. Tonymar relies on the latter category, contending that the property is particularly suitable for a carwash. Having reviewed the record, we find that the evidence does not support such a finding.

In determining whether a site is "particularly suited" for the use proposed by a variance, "benefit to the general welfare derives not from the use itself but from the development of a site in the community that is particularly appropriate for that very enterprise." Medici, supra, 107 N.J. at 18. Courts will find the standard met where "generally, the use is one that would fill a need in the general community, where there is no other viable location, and where the property itself is particularly well fitted for the use either in terms of its location, topography or shape." Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 210 (App. Div. 1999). However, mere convenience to potential customers of a commercial establishment does not qualify to make a use "particularly suited" to a site. Saddle Brook, supra, 388 N.J. Super. at 77-78.

In Medici, supra, we reversed a trial court's denial of a variance for construction of a motel in South Plainfield, a use that was not permitted by the zoning ordinances of the municipality. Id. at 5, 8-9. In ordering a grant of the variance, we cited as among the positive criteria the fact that the location had "proximity to highways." Id. at 8-9. The Supreme Court reversed, stating that "[t]he fact that the site is near an interstate highway does not distinguish it from any other property in the vicinity of the highway," concluding that the applicant had not carried its burden with respect to the criteria. Id. at 24.

Likewise, in Funeral Home, supra, we held that an applicant had not established grounds for a use variance to build a funeral home in an area where such a use was prohibited. The applicant claimed that the funeral home would create a transition between a residential zone and a business zone. However, "Medici makes clear that although property may be thought to be particularly suitable for a proposed use because the use fits well with the surrounding area (such as the Board's "buffer" or transition notion here), that does not equate to special reasons." Funeral Home, supra, 319 N.J. Super. at 209. We noted that "we have found peculiar suitability special reasons exist, where, generally, the use is one that would fill a need in the general community," and "there is no other viable location." Id. at 210.

The funeral home applicant, however, did not meet this standard:

[T]he Board made no finding that a funeral home use was not available in other locations in the area or, indeed, that there was a community need for such use. . . . We know that there are four funeral homes already in the area. We know that one of them, plaintiff's, preexisted the current ordinance. There is no evidence, then, that funeral home use was nonexistent or uncommon at the time of the last required ordinance revision. Neither is there any evidence of substantial changes in the character of the surrounding neighborhood, or the alteration of the needs and character of the community that would reconcile the nonpermitted use with the present zoning ordinance.

[Id. at 214-15.]

In another analogous case, Saddle Brook, supra, we addressed the grant of a variance to build a Wendy's fast-food restaurant in a shopping mall in a town where the zoning ordinance prohibited fast-food restaurants. We found the zoning board's findings inadequate to justify a use variance:

In addressing [the positive criteria], the Board stated: "The Board finds that the proposed use fits within the scheme of the existing shopping center." This finding does not support the conclusion that the proposed location of the Wendy's is "particularly suitable" for a fast food restaurant. See Funeral Home Mgmt., supra, 319 N.J. Super. at 209 (holding that "although property may be thought to be particularly suitable for a proposed use because the use fits well with the surrounding area . . . , that does not equate to special reasons"). The Board did not find that the mall is a more suitable location for a fast food restaurant than any other location in the Saddle Brook commercial district, which is a prerequisite for finding that there are special reasons justifying a use variance. See Medici, supra, 107 N.J. at 24 (holding that "[t]he fact that the site is near an interstate highway does not distinguish it from any other property in the vicinity of the highway" and thus does not constitute a special reason sufficient to sustain a use variance).

Nor does the Board's finding that "a fast food restaurant with a drive through facility has a lower parking demand than a traditional restaurant" support the conclusion that the mall is a particularly suitable location for the proposed fast food restaurant because this would be equally true of any other site where the restaurant might be located. See Funeral Home Mgmt., supra, 319 N.J. Super. at 212 (holding that alleviation of traffic or parking congestion was not a special reason justifying use variance where proposed use as funeral home would "add to the traffic in the area, albeit perhaps less so than a permitted use" as an office). Moreover, there undoubtedly are other potential commercial uses of the fourth building in the mall that would require less parking facilities than either a traditional or fast food restaurant.

At best, the evidence Grillco presented to the Board could support a finding that a fast food restaurant would be a convenience to some customers of the existing retail stores. However, such a convenience does not constitute "an inherent benefit to the general welfare" that can support the finding of "special reasons" required for the grant of a use variance. Medici, supra, 107 N.J. at 18. To support a finding of special reasons, "any benefit to the general welfare [must] derive[] not from the use itself but from the development of a site in the community that is particularly appropriate for that very enterprise." Ibid. There is no evidence in the record that could support a finding that the Brighton mall is a particularly appropriate site for a fast food restaurant, particularly in view of the fact that there already are several fast food restaurants located nearby and two other stores in the mall that sell take-out food.

[Saddle River, supra, 388 N.J. Super. at 77-78.]

We also concluded that the Board had not reconciled the grant of the variance with the municipal governing body's decision to specifically prohibit fast-food restaurants in the town:

Initially, we note that Grillco's proposed fast food restaurant is not simply "a use omitted from" the permitted uses listed in the zoning ordinance. Instead, it is a use that the Saddle Brook governing body has expressly prohibited in every zoning district. As one commentator has observed: [W]here a particular use was specifically addressed by . . . the zoning ordinance[,] . . . arrogation of [the governing body's] planning responsibilities should be at the forefront of a board of adjustment's concerns" in considering an application for a use variance. William M. Cox, N.J. Zoning & Land Use Administration, 8-2.3 at 228-29 (2006). Furthermore, Grillco did not present any evidence that "the character of [Saddle Brook] has changed substantially since the adoption of the . . . zoning ordinance" prohibiting new fast food restaurants. Therefore, the Board's grant of a use variance for a fast food restaurant in the face of the governing body's express prohibition of this use constituted a usurpation of "the legislative power reserved to the governing body of the municipality."

[Id. at 80-81. (citations omitted)]

Accordingly, we reversed a decision of the Law Division affirming the Board's grant of the use variance.

We find Medici, Funeral Homes, and Saddle Brook on point here. There is simply no proof in this record that Tonymar's property is particularly suited for a carwash, as opposed to another use. In fact, Tonymar's owner testified that he had not even considered any other possible uses, including uses that would be permitted by the zoning ordinance. There was no evidence of any particular need for another car wash in Newark. The record reflects that there are fifteen car washes in the City, including one located fairly close to the site.

In addition to falling short of satisfying the positive criteria, the application did not satisfy the negative criteria:

[A]n applicant for a use variance must show by "an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance[,]" and the Board must make "clear and specific findings" that this showing has been made. 107 N.J. at 21. "The applicant's proofs and the board's findings . . . must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Ibid.

[Saddle Brook, supra, 388 N.J. Super. at 79 (emphasis added) (quoting Medici, supra, 107 N.J. at 21).]

The proposed use is specifically prohibited by the zoning ordinance and is inconsistent with the master plan recently adopted before the Board heard the application. Nothing in the language of the master plan supports Binyra's testimony that the site was not within the waterfront district. The fact that the zone currently has a lot of industrial buildings is hardly remarkable, given its current I-2 zoning. But the master plan contemplates a transition to a different set of uses consistent with a more modern vision of the City. The Board's resolution failed to reconcile the proposed use of the site with the master plan. Moreover, on this record, we conclude that the use cannot be reconciled with the master plan.

Because the applicant did not satisfy the positive criteria or the negative criteria as set forth in Medici, supra, we conclude that the trial court should have reversed the Board's decision to approve the application rather than remanding to the Board for reconsideration.

Reversed.

 

Tonymar also applied for final site plan and subdivision approval. The subdivision application sought to merge two existing lots and then subdivide them into two lots of different sizes, with the carwash and oil change facility to be constructed on one of the lots. In light of our decision on the use variance, we will not address the issue of the site plan.

Both parties presented extensive expert testimony on the issues of traffic and parking. However, we need not address this evidence in detail as it is peripheral to our decision.

The objectors' traffic engineer, Brian Intindola, testified that although McCarter Highway was a heavily-traveled road, cars would not be allowed to enter the carwash from McCarter Highway.

In response to light and noise concerns, the Board conditioned its approval upon Tonymar limiting the facility's hours of operation.

Forty objectors appeared at the hearing. However, Santana was the only objector who testified.

The Board imposed several conditions on the approval, relating to site plan issues, which are not pertinent to our decision. The trial judge concluded that the site plan approval was improper.

While we reverse the trial court's decision, this record illustrates the problems which may arise when a city adopts a visionary master plan that is substantially at odds with the current zoning and does not promptly amend its zoning to conform to the master plan. If Newark does not amend the I-2 zoning of this district to conform to the master plan, property owners may construct additional facilities that are inconsistent with the waterfront plan and are inconsistent with the expectations of those owners, such as the Comfort Suites, that have built structures consistent with the plan. For example, under current zoning, Tonymar could construct an oil change facility without a variance.

(continued)

(continued)

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A-2634-07T1

January 9, 2009