SEUNG CHANG v. BOARD OF ADJUSTMENT OF THE BOROUGH OF ROSELAND

(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NOT FOR PUBLICATION WITHOUT THE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-5248-07T35248-07T3

SEUNG CHANG, t/a

LA BELLE NAIL SALON,

Plaintiff-Appellant,

v.

BOARD OF ADJUSTMENT OF

THE BOROUGH OF ROSELAND,

Defendant-Respondent.

________________________________________________________________

 

Argued April 29, 2009 - Decided

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6375-07.

Cecilia M.E. Lindenfelser argued the cause for appellant (Law Offices of Charles A. Rosen, attorneys; Ms. Lindenfelser, on the brief).

Janice Falivena argued the cause for respondent (Law Office of Janice Falivena, attorneys; Ms. Falivena, on the brief).

PER CURIAM

Plaintiff Seung Chang appeals from a May 20, 2008 Law Division order that affirmed a June 11, 2007 resolution of the Board of Adjustment of the Borough of Roseland (Board), in which the Board denied his request for a use variance to operate a nail salon in a multi-family residential zone. We affirm.

I.

Plaintiff is the lessee of property located at 10 Eisenhower Parkway in Roseland. Although the narrow lot in question consists of one acre, plaintiff's lease applies only to the northernmost twenty percent of the property, on which a 900 square foot single-story building is situated. The remaining eighty percent of the lot, situated behind a fence, is not leased by plaintiff and was not the subject of his application before the Board. The owner of the property, Alden Equities, had been using the property as a fuel oil company for a number of years prior to the time plaintiff submitted his application for a use variance.

The property is located in the R-6 residential zone, which permits townhouses, garden apartments, public parks, playgrounds, and family daycare homes. Significantly, the Roseland zoning ordinance specifies a five-acre minimum lot size for townhouses and a nine-acre minimum for garden apartments. Consequently, it was impossible for the property to be used for any of the purposes permitted in the R-6 zone. Other than the subject property, the only other lot in the R-6 zone is an apartment complex known as Nob Hill.

The property is located across the street from a business zone where nail salons are a permitted use. In fact, within that business zone, and within 300 yards of the property in question, there were two existing nail salons.

At the public hearing on May 14, 2007, the Board decided to bifurcate the proceeding by addressing the use variance at the first hearing, and deferring consideration of the site plan to a later date. Plaintiff presented the testimony of Joseph Jaworski, an engineer, who testified on the subject of vehicular access to the site, and commented that the site would produce a small amount of traffic, namely two or three cars an hour. Jaworski opined that the proposed use as a nail salon was less intense than other retail uses such as a convenience store. Jaworski also opined that the site plan presented by plaintiff provided adequate ingress and egress. During the course of the hearing, plaintiff agreed to make any changes to the site the Board suggested, including signage and road striping.

Plaintiff testified that he intended to have no more than three employees working at any one time, and that over the course of a busy day, he expected no more than twenty-five customers. He also testified that he intended to transport his employees to the site in a single vehicle.

Plaintiff's final witness was David Zimmerman, a licensed professional planner who opined that the use of the property as a nail salon would be "on the low end in terms of the intensity of use." Zimmerman also opined that "a commercial use of one form or another is probably . . . the most realistic use of the property," and consequently the application in question constituted "the most appropriate use for the property." He further opined that the grant of the variance would not present a serious or substantial impairment to the master plan or the zone plan, nor would the granting of the application have a substantially negative impact upon the public good. Finally, he commented that the property was "too strange a piece of property, long and narrow . . . [to enable its use] for a garden apartment or townhouse."

The Board heard testimony from its professional planner, Jamie Sunyak, who testified that plaintiff's plan did not satisfy the Municipal Land Use Law's (MLUL) goal of providing a desirable visual environment through creative development techniques and good design. Sunyak also testified that the remaining unused area of the lot raised a substantial question as to whether the proposed use is particularly well-suited to the property, which, she explained, is a requirement for the granting of a use variance.

By a vote of four in favor and three opposed, the Board denied plaintiff's request for a use variance. The Board concluded that plaintiff failed to carry his burden of establishing that the proposed use of the property as a nail salon would serve the general welfare. The Board additionally held that plaintiff's proofs did not demonstrate that the proposed use was "particularly appropriate" for the site. The Board's resolution summarized the comments of the four Board members who voted against the use variance:

Overall, the Board finds the characteristics of this site do not make it particularly suited for a nail salon. Applicant failed to show why this location is more suitable for a nail salon than any other location in the Borough where such use is widely permitted. Applicant failed to demonstrate a need for a nail salon outside the zones where such use is already a permitted use. In fact, there are two other nail salons within about a 300-yard proximity to this site. Having failed to show a need for a nail salon at this site, or to demonstrate no other viable alternate location for a nail salon, or to show that this property is well-suited for a nail salon because of its location, topography or shape, [the] applicant's request for a use variance must fail. . . .

The Board finds that the purposes of the land use laws would not be advanced by deviation from the Ordinance in this instance, and determines that the request for a variance from 30-404.1 of the Ordinance must be denied.

Plaintiff filed a complaint in lieu of prerogative writs in the Law Division, seeking to overturn the Board's denial of his variance request. After reviewing the record compiled during the May 14, 2007 Board hearing, and considering argument from the parties, in a written opinion, Judge Leath held that the record amply supported the Board's conclusion that plaintiff failed to satisfy his burden of establishing the particular suitability of the property for use as a nail salon, and failed to demonstrate "special reasons" for the granting of a variance. She also credited the Board's finding that the "proposed use would not fill a need lacking in the community." Consequently, she held that: 1) plaintiff failed to satisfy the statutory requirement of "special reasons" established in N.J.S.A. 40:55D-70d.; and 2) the Board's decision was not arbitrary, capricious or unreasonable. She affirmed the denial of plaintiff's request for a use variance by order of May 20, 2008.

II.

When a trial court is presented with a challenge to a decision of a planning or zoning board, the Board's decision must be affirmed unless it is arbitrary or unreasonable. Harvard Enters., Inc. v. Bd. of Adjustment of Madison, 56 N.J. 362, 368 (1970). Moreover, Board members living in a community are well-versed in the characteristics of the sites before them, Masterson v. Christopher Diner, Inc., 85 N.J. Super. 267, 273 (App. Div. 1964), certif. denied, 44 N.J. 406 (1965), and accordingly, a reviewing court should defer to the expertise and discretion of a local land use board. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998). A board's decision is presumptively valid, and will be reversed only when such decision is unsupported by the record or constitutes an abuse of discretion. Ibid.

A zoning board of adjustment may grant a use variance to permit a proposed use of property in a zone where such use is otherwise prohibited. A board of adjustment has the power to:

In particular cases for special reasons, grant a variance to allow departure from regulations . . . to permit: 1) a use . . . in a district restricted against such use . . . .

. . . .

No variance or other relief may be granted . . . 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-70d.]

Thus, to obtain a use variance, the applicant must demonstrate "special reasons," commonly known as the "positive criterion." Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 76 (App. Div. 2006). The applicant must also prove the "'negative' statutory criteria" by establishing that the requested variance will not substantially impair the intent and purpose of the zone plan and the zoning ordinance. Ibid. (quoting N.J.S.A. 40:55D-70). All variances require proof by the applicant of both the positive and the negative criteria. Medici v. BPR Co., 107 N.J. 1, 17-26 (1987).

Because there is a strong legislative policy favoring land use planning by ordinance rather than by variance, the grant of a use variance will always be the exception rather than the rule. Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 161-62 (1992). If the proposed use is inherently beneficial, such as a school or hospital, such use presumptively satisfies the positive criteria for the grant of a use variance. SMR, supra, 152 N.J. at 323. Where, as here, the proposed use is not inherently beneficial, "the applicant must prove, and the [B]oard must specifically find that the use promotes the general welfare because the proposed site is particularly suited for the proposed use." Medici, supra, 107 N.J. at 4 (emphasis added).

Moreover, where an applicant seeks a use variance for a particular store location, the proposed use must be found to be uniquely suitable in that location. Saddle Brook, supra, 388 N.J. Super. at 77. In Saddle Brook, we reversed the grant of a use variance for a fast food restaurant in a strip mall because the Board's findings failed to justify its conclusion that special reasons had been demonstrated. Id. at 81. In particular, the Board's findings were deficient because the Board failed to make the required finding that the strip mall was a more suitable location than other surrounding locations. Id. at 77.

Similarly, in Funeral Home Management, Inc. v. Basralian, 319 N.J. Super. 200, 215-16 (App. Div. 1999), we upheld the trial court's ruling that an oddly-shaped, steep lot, which was partially in a residential zone and partially in a business zone, was not better suited to use as a funeral home with an attached residence than to the purely residential use already on the lot. We observed that the applicant's proofs did not satisfy the enhanced proof requirement that the Court established in Medici, supra, 107 N.J. at 21, whenever a use is not inherently beneficial. Basralian, supra, 319 N.J. Super. at 214-15. In particular, we upheld the trial judge's observation that the applicant had failed to demonstrate, and the Board had failed to find that "there was a community need for such use" or "that a funeral home use was not available in other locations in the area." Basralian, supra, 319 N.J. Super. at 211.

Here, plaintiff premised his request for a use variance on the claim that the property is particularly suitable for a nail salon. His planning expert, Zimmerman, testified before the Board that "[a]s a[n] application for a use variance . . . the [question] is . . . is the property particularly suited, particularly suitable for the use that's being proposed." Thus, as the Board properly argues, plaintiff's entitlement to a use variance turned upon whether a nail salon on the property served the general welfare because "the proposed site is particularly suitable for the proposed use."

Particular suitability can be shown where (1) "the use is one that would fill a need in the general community," (2) "there is no other viable location," and (3) "the property itself is particularly well fitted for the use either in terms of its location, topography or shape." Id. at 210. Applying the Basralian criteria, we are satisfied the record amply supports the Board's conclusion that the proposed use would not fill a need in the general community because there were already three nail salons in Roseland, of which two were located within 300 yards of the site in question. For the same reason, because there are already numerous nail salons in the community, plaintiff failed to demonstrate that there is no other viable location for his proposed nail salon, and thus failed to satisfy the second Basralian factor. As to the third factor, whether the property is particularly well-fitted for the use in terms of its location, topography or shape, nothing in the record would justify such a finding. Thus, the record supports the Board's finding, and Judge Leath's conclusion, that plaintiff's application fell woefully short of establishing the special reasons that are necessary for the grant of a use variance.

We specifically reject, as did Judge Leath, plaintiff's contention that the proposed use as a nail salon was particularly suitable for the site, and fit well with the surrounding area, in light of the existence of other nail salons nearby. As the Court emphasized in Medici, supra, 107 N.J. at 24, merely because the proposed use fits well with the surrounding area does not equate to a finding of the "special reasons" demanded by N.J.S.A. 40:55D-70d.

We likewise reject plaintiff's contention that the Board erred by ignoring the fact that the property does not satisfy the minimum lot size required for the garden apartments and townhouses that are permitted within the R-6 zone. He maintains that such incompatibility satisfied the "special reasons" standard of N.J.S.A. 40:55D-70d. We disagree. Such an argument is premised upon the assumption that including the subject property in the R-6 zone was an arbitrary exercise of the governing body's zoning authority, and ignores the Court's admonition that land use planning must be accomplished by ordinance rather than by variance. Sica, supra, 127 N.J. at 161-62. Moreover, that there may not be a factual justification for a particular zone assignment in the first place is clearly not a "special reason." Bern v. Borough of Fair Lawn, 65 N.J. Super. 435, 451 (App. Div. 1961).

Indeed, in Saddle Brook, supra, 388 N.J. Super. at 78, we reversed the grant of a use variance for a fast-food restaurant in a strip mall in part because the Board had apparently disagreed with the zoning regulation and had made a finding that there was little distinction between fast-food restaurants, a prohibited use, and traditional restaurants, which were non-prohibited uses. In reversing the Board's grant of a use variance, we observed that such a finding was "not relevant" in determining whether a proposed use is particularly suitable. Ibid. Thus, it is beyond dispute that even if the inclusion of the subject property in the R-6 zone is questionable, such factor is not a "special reason" within the meaning of N.J.S.A. 40:55D-70d. Thus, plaintiff's attack on the Board's determination is meritless.

 
In light of our conclusion that the Board correctly found that plaintiff did not demonstrate special reasons for the grant of a use variance, there is no need to consider plaintiff's challenge to the Board's findings on the negative criteria contained in N.J.S.A. 40:55D-70d, nor is there a reason to consider plaintiff's claim that the Board's decision to bifurcate the application was an arbitrary action constituting reversible error.

Affirmed.

A use variance requires five affirmative votes. N.J.S.A. 40:55D-70d.

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A-5248-07T3

May 18, 2009