VILLAGE SUPERMARKETS, INC v. BOROUGH OF GARWOOD PLANNING BOARD

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3282-07T23282-07T2

VILLAGE SUPERMARKETS, INC.,

Plaintiff-Respondent,

v.

BOROUGH OF GARWOOD PLANNING

BOARD and ACP PROPERTIES,

Defendants,

and

GOLD MEDAL FITNESS, INC.,

Defendant-Appellant.

________________________________________________________________

 

Argued March 31, 2009 - Decided

Before Judges Parker and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-2699-06.

David V. Nasta argued the cause for appellant (Nowell Amoroso Klein Bierman, attorneys; Mr. Nasta, of counsel and on the brief).

Diane U. Dabulas argued the cause for respondent (Rogut McCarthy, attorneys; Daniel J. McCarthy, on the brief).

PER CURIAM

Defendant Gold Medal Fitness, Inc. (Gold Medal) appeals from a judgment entered on January 29, 2008 vacating a resolution by the Borough of Garwood Planning Board (Board). The Board had granted use and bulk variances to Gold Medal to expand its existing health club to include operation of a Parisi Speed School (Speed School) franchise for specialized athletic performance training for children. We reverse and remand.

In April 2006, Gold Medal made an application to the Board for site plan approval, use and bulk variances for the expansion of its health club, which is located in a shopping center zoned for light industrial use. Plaintiff, Village Supermarkets, Inc., operates a ShopRite supermarket in the same shopping center.

After a hearing, at which plaintiff made no objections, the Board granted preliminary and final site plan approval with the use and bulk variances. The approval was memorialized in a resolution dated May 24, 2006. A certificate of occupancy was issued on February 12, 2007.

In the interim between the adoption of the resolution and the issuance of the certificate of occupancy, plaintiff filed a complaint in lieu of prerogative writs alleging that the Board's grant of the variances was arbitrary and capricious. ShopRite objected to Gold Medal's application, complaining that the proposed non-conforming use would bring parking, traffic and safety concerns to the property. ShopRite contended that Gold Medal did not demonstrate an inherently beneficial use, nor did it demonstrate that it would suffer any undue hardship if the variances were not granted.

Gold Medal's owner, Gary Patti, testified at the Board hearing that the health club currently has 2,400 members and is open from 5:00 a.m. to 11:00 p.m. Monday through Thursday, 5:00 a.m. to 9:00 p.m. on Friday and 7:00 a.m. to 6:00 p.m. on Saturday and Sunday. Patti testified that the Speed School trains children from ages seven to thirteen during after-school hours and on Saturdays.

Defendant ACP Properties (ACP) is the owner of the shopping center. ACP's representative testified that the area is in retail use, not industrial. He did not dispute that there was a parking deficiency, but believed that Gold Medal's operation would generate less parking demand than another retail operation.

In March 2007, the trial court remanded the matter to the Board for the limited purpose of amending the resolution. The amended resolution approving the application was adopted on May 9, 2007. In the amended resolution, the Board made detailed findings of fact, specifically that a retail use of the property would create a greater burden on available parking than would the proposed use; that parking would be sufficient for the proposed use; that there was a parking deficiency of only six or eight spaces; that the bulk variances and design waivers were pre-existing; that the proposed use of the site would be more aesthetically pleasing than a light industrial use; that the proposed use was particularly suited to the site; that strict application of the zoning ordinance would be a hardship to Gold Medal; and that special reasons existed to grant the use variance. Plaintiff continued to object, however, and the matter was argued before the trial court in January 2008. Thereafter, the court entered judgment vacating the Board's approval.

After hearing arguments from the parties, the trial court determined that there was insufficient evidence on the positive and negative criteria for a use variance under N.J.S.A. 40:55D-70(d), and that the Board did not find any reason why the applicant would suffer an undue hardship if the application was not granted. The court vacated the approval on the ground that it was arbitrary and capricious.

In this appeal, Gold Medal argues that the trial court erred in reversing the Board's approval. We agree. The decision of a municipal zoning board gives rise to a rebuttable presumption that the board properly exercised its discretion. Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965). The court may not substitute its judgment for that of the zoning board unless the objector proves that the board's action was unreasonable, arbitrary or capricious. Id. at 296-97. Our scope of review is similarly limited to a determination of whether the board's decision was unreasonable, arbitrary or capricious. Booth v. Bd. of Adjustment of Rockaway, 50 N.J. 302, 306 (1967); Kramer, supra, 45 N.J. at 296-97; Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004). While we generally defer to the board's factual determinations, its construction or interpretation of a local ordinance is subject to de novo review. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993); DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, 174 (App. Div.), certif. denied, 181 N.J. 544 (2004).

The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136 authorizes municipal zoning boards to grant variances from local ordinances when an applicant satisfies the statutory criteria, specifically the "positive criteria by demonstrating a special reason to grant the variance . . . . [and] the statute's negative criteria by showing that a variance can be granted without substantial detriment to the public good and without substantially impairing the intent and the purpose of the zone plan and zoning ordinance." New York SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 335 (App. Div. 2004) (citations omitted).

A use variance can only be granted when an applicant has demonstrated "special reasons," which the Supreme Court described as follows: "[I]f the use for which a variance is sought is not one that inherently serves the public good, the applicant must prove and the board must specifically find that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use." Medici v. BPR Co., 107 N.J. 1, 4 (1987); N.J.S.A. 40:55D-70d(1). In a footnote, the Court added: "Alternatively, the statutory special reasons standard can also be addressed by proof of undue hardship, i.e., that the property cannot reasonably be developed with a conforming use." Medici, supra, 107 N.J. at 4 n.1.

Here, the entire shopping center is a non-conforming use in a light industrial zone. Gold Medal was granted use and bulk variances in 1997 and has operated its health club on this site since 1998. The health club caters to adults "for everything from general fitness to rehabilitation to cardiovascular issues." With respect to parking, Patti testified that in the event of a shortfall of parking on the premises, "[w]e have had the use of the parking lot directly across the street from us which is owned by Accurate Pushing." Moreover, Patti testified that the health club members come primarily in the morning while the Speed School will cater to children in the after-school hours, Saturdays and during the summer months.

The trial court was principally concerned that the Board had not made findings with respect to the positive and negative criteria. In our view, the trial court should have remanded the matter to the Board for further findings with respect to the positive and negative criteria for a use variance, rather than entering judgment in favor of plaintiff. Accordingly, we reverse the trial court's judgment vacating the amended resolution dated May 9, 2007, and remand the matter to the Board for further findings with respect to the positive and negative criteria.

Reversed and remanded. We do not retain jurisdiction.

 

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A-3282-07T2

July 20, 2009