CHILDREN'S PROPERTY, L.L.C A New Jersey Limited Liability Company v. THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF WOODBRIDGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6308-07T36308-07T3

CHILDREN'S PROPERTY, L.L.C.,

A New Jersey Limited Liability

Company,

Plaintiff-Appellant,

v.

THE ZONING BOARD OF ADJUSTMENT OF

THE TOWNSHIP OF WOODBRIDGE,

Defendant-Respondent.

__________________________________________

 

Argued October 13, 2009 - Decided

Before Judges Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-8535-06.

Jonathan G. Burnham argued the cause for appellant (Hutt & Shimanowitz, P.C., attorneys; Mr. Burnham, of counsel and on the brief).

Karl P. Kemm argued the cause for respondent (Hoagland, Longo, Moran, Dunst & Doukas, L.L.P., attorneys; Mr. Kemm, of counsel and on the brief).

PER CURIAM

Plaintiff Children's Property, L.L.C. has appealed the denial of its application for minor subdivision approval, minor site plan approval, use variances, and bulk variances by the Zoning Board of Adjustment of the Township of Woodbridge (the Board). The trial court affirmed the Board's decision, and plaintiff now appeals to this court. We agree with the trial court that the Board's action was not arbitrary, capricious, or unreasonable and affirm.

I

Plaintiff is the contract purchaser of six lots, totaling .394 acres, in the Township of Woodbridge in the R-6 High-Density Single-Family Residential Zone. Located on the property is a building containing a barbershop and a one-bedroom apartment on the first floor and a three-bedroom apartment on the second floor.

Plaintiff sought to renovate the first floor by constructing two one-bedroom apartments in place of the apartment and barbershop currently there. The proposal also included renovation of the facade of the building, a new layout of the sidewalks, landscaping, a new driveway, and six parking spaces.

Plaintiff also proposed to reconfigure the six lots into two lots. One lot facing Freeman Street (the Freeman Street lot) would contain the existing structure and would measure sixty-six feet wide and one-hundred feet deep (.151 acres). The other lot (the vacant lot) would remain undeveloped. It would face Whitess Avenue, an undeveloped paper street, and would measure 106 feet wide by 100 feet deep (.243 acres). Plaintiff agreed to limit development on this lot to a single-family home. The vacant lot would be subject to a ten by sixty-six foot easement to accommodate parking on the Freeman Street lot. Since the vacant lot would be left on a paper street, development of that lot would require development of Whitess Avenue with installation of off-tract improvements. The Board expressly found that the other houses bordering Whitess Avenue would not benefit from these improvements to Whitess Avenue.

In order to proceed with this proposal, plaintiff sought recognition of the pre-existing nonconforming use, use variances for expansion of the nonconforming use, a minor subdivision in order to divide the six existing lots into two lots, minor site plan approval with waivers, and a bulk variance since the building's existing front yard setback is 20.1 feet, whereas 25 feet is required.

At the public hearing held by the Board in July 2006, plaintiff presented witnesses, including a professional engineer and professional planner. The Board also heard comments from the public expressing opposition to the additional density proposed by the application.

By Resolution dated September 21, 2006, the Board granted the portion of the application seeking recognition of the pre-existing nonconforming use, and that issue is not in dispute in this appeal. The Board denied the balance of the application. Plaintiff appealed to the trial court. On May 21, 2007, the trial court remanded the matter to the Board for findings of fact and conclusions of law and allowed plaintiff to reopen the record to present additional evidence on the intensification of use issue.

At the hearing on remand, plaintiff presented additional testimony, including that of its planner. By the time of the remand, plaintiff had already renovated the two apartments in the building, changed the facade, added the new driveway, replaced the sidewalk and started the landscaping. Members of the public spoke in opposition to the proposal, expressing concerns that the proposal would change the character of the neighborhood which has single-family homes, that it would generate more traffic, lower property values, and increase the risk of flooding.

The Board reaffirmed its recognition of the nonconforming use and denied the balance of the application. The trial court affirmed that decision. On appeal, plaintiff contends that the Board's decision was arbitrary, capricious, and unreasonable; that the trial court erred in relying on a safety concern not expressed by the Board and in relying on the master plan; and that the Board and trial court should have considered the application for a minor subdivision separately from the use variance applications.

II

In order to subdivide the property and turn the barbershop into another apartment, plaintiff required two use variances, also known as "d" variances under N.J.S.A. 40:55D-70(d)(2), one to expand the building into three residential units and the second to address the intensification of the pre-existing use if the property is subdivided.

The statute permits the expansion of a nonconforming use provided that two criteria are met: first, that "special reasons" exist for granting the variance, the so-called positive criteria, and second, that the variance "'can be granted without substantial detriment to the public good' and that it 'will not substantially impair the intent and the purpose of the zone plan and zoning ordinance,'" the so-called negative criteria. Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 156 (1992) (quoting N.J.S.A. 40:55D-70(d)(2)).

"Special reasons" exist where the application would foster the purposes of the zoning set forth in the Municipal Land Use Law at N.J.S.A. 40:55D-2. Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 386 (1990). This would include promotion of "the public health, safety, morals and general welfare." Ibid.; N.J.S.A. 40:55D-2(a). Case law has recognized three categories of special reasons, namely, (1) an inherently beneficial use, (2) undue hardship to the property owner if the zoning ordinance is followed, and (3) situations where the proposed "use would serve the general welfare because 'the proposed site is particularly suitable for the proposed use.'" Saddle Brook Realty, L.L.C. v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 76 (App. Div. 2006) (quoting Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998)).

In this case the Board found that the creation of three residential units in the building rather than the existing two would make the nonconforming use more intense. While the proposal would eliminate the existing nonconforming barbershop, the record contained testimony that in the context of this neighborhood with its single-family houses, the intensification of residential use would be detrimental. As the Board Chairman and one member of the public indicated, the intensification of the nonconforming use would be twenty-four hours a day, seven days a week while the barbershop had limited hours.

Significantly, the proposed subdivision would make the nonconforming use more intense because the building would be on a much smaller lot. As the Board's planner noted at the July 12, 2007 hearing:

[S]ince the applicant is proposing three dwelling units on what is essentially a 6,600 square foot lot, the density that they are proposing is a hair under three times what is allowed by the ordinance. So you are putting three units on . . . a lot that can accommodate a hair more than one unit. The second planning issue I want to raise, too, by virtue of that subdivision, we are decreasing the size of the lot on which we have the non-conformity. And when you essentially combine those two issues, you are intensifying [the] nonconforming use.

We have recognized that reducing the size of a nonconforming lot intensifies the nonconformity, explaining:

[A] reduction in the size of the property occupied by a nonconforming use, with a resulting decrease in the buffers between conforming and nonconforming uses, is just as likely to increase the conflict between a nonconforming use and surrounding conforming uses as an expansion of the facility containing the nonconforming use or an intensification of that use. Therefore, a reduction in the size of the property occupied by a nonconforming use may result in a substantial increase in the nonconformity.

[Razberry's, Inc. v. Kingwood Twp. Planning Bd., 250 N.J. Super. 324, 327 (App. Div. 1991).]

As a result, when a lot containing a nonconforming use is subdivided, the owner must obtain a use variance under N.J.S.A. 40:55D-70(d)(2), in order to continue the nonconforming use. Id. at 326-27.

The Board concluded that plaintiff had failed to satisfy both the positive and negative criteria and denied the application. It noted that the applicant failed to demonstrate that the property could not be developed in accordance with the zoning plan. The Board explained that expanding the building to three residential units was not making the building more conforming, but rather was moving away from a conforming use. The Board also noted that the proposed subdivision would reduce the size of the lot for the building which would have the effect of intensifying and expanding the pre-existing nonconforming use. It stated that "[t]he Applicant has not shown that the granting of the variances would provide a better zoning alternative for the property and/or provide a benefit to the community and therefore the Board finds that the variances would only advance the individual property owner's economic interests." In conclusion, the Board found that the applicant had not established the positive or negative criteria and denied the application.

Our review of the trial court's decision is de novo. N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). However, we accord to a board's decision "substantial deference." Ibid. We may not substitute our judgment in place of the Board's. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor, 172 N.J. 75, 81 (2002). Boards of adjustment "possess special knowledge of local conditions and must be accorded wide latitude in the exercise of their discretion." Sica v. Bd. of Adjustment of Wall, supra, 127 N.J. at 167. A board's decision is presumed to be valid and we will not overturn its determination unless we find its decision to be arbitrary, capricious and unreasonable, amounting to an abuse of discretion. Ocean County Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 521-22 (App. Div.), certif. denied, 175 N.J. 75 (2002).

Due to the legislative preference for land use planning by ordinance and not by variance, the granting of a "d" variance is considered the exception rather than the rule. William M. Cox, New Jersey Zoning and Land Use Administration, 7-4.1 (2009). As a result, we generally give greater deference to the denial of a variance than to the granting of one. Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001). Notably, N.J.S.A. 40:55D-70(d) requires that five members rather than a simple majority approve the granting of a use variance, including those to expand a nonconforming use, reflecting the Legislature's intent that these variances be more difficult to obtain. Ibid. In particular, expansion of a nonconforming use is "disfavored." Scully-Bozarth Post # 1817 of the Veterans of Foreign Wars of the U.S. v. Planning Bd. of Burlington, 362 N.J. Super. 296, 315 (App. Div.), certif. denied, 178 N.J. 34 (2003).

We have carefully reviewed the record against these standards and conclude that the Board did not abuse its discretion in denying the use variances. The record is sufficient to support the Board's finding that no special reason has been shown in satisfaction of the positive criteria. Plaintiff has not shown an inherently beneficial use, undue hardship, or that the site is particularly well-suited for this use, and the record is sufficient to support the Board's finding that the proposal does not promote the general welfare. The record also adequately supports the Board's finding that the proposal fails to meet the negative criteria since it will result in an intensification of the nonconforming use.

Plaintiff argues that the Board and trial court should have considered the subdivision application separately from the application for the use variances. As noted above, the application required two use variances, one to expand the use to three residential apartments and one for the subdivision. The Board did address these variance applications separately. However, with respect to the use variance sought for the subdivision, that variance was required because the subdivision would have intensified the nonconforming use and to that extent the applications were intertwined. See Razberry's, Inc. v. Kingwood Twp. Planning Bd., supra, 250 N.J. Super. at 327.

Plaintiff also argues that the trial court incorrectly upheld the Board's denial of the application on the basis that the Board had articulated safety concerns and that the trial incorrectly relied on the Township's master plan in its analysis. We need not address whether the trial court erred in these respects since our review is de novo based on the record before the Board and its findings. See N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, supra, 370 N.J. Super. at 331 (stating that the Appellate Court applies the same standard of review as the trial court). We have reached our conclusion without taking these factors into account.

Affirmed.

 

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A-6308-07T3

November 13, 2009