MARKET STREET MISSION v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF ASBURY PARK

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0685-08T1

MARKET STREET MISSION d/b/a

JERSEY SHORE RESCUE MISSION,

Plaintiff-Appellant/

Cross-Respondent,

v.

ZONING BOARD OF ADJUSTMENT OF

THE CITY OF ASBURY PARK,

Defendant-Respondent,

and

THE CITY OF ASBURY PARK,

Defendant/Intervenor-

Respondent/Cross-Appellant.

________________________________

STAND UP FOR ASBURY PARK,

Plaintiff-Respondent,

v.

MARKET STREET MISSION d/b/a

JERSEY SHORE RESCUE MISSION,

Defendant-Appellant,

and

ZONING BOARD OF ADJUSTMENT OF

THE CITY OF ASBURY PARK,

Defendant-Respondent.

_________________________________

October 1, 2010

 

Argued January 27, 2010 - Decided

 

Before Judges Axelrad, Sapp-Peterson and Espinosa.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-302-06 and L-3026-06.

 

Brendan Judge argued the cause for appellant (Connell Foley, L.L.P., attorneys; Mr. Judge, on the brief).

 

Jack A. Serpico argued the cause for respondent Zoning Board of Adjustment of the City of Asbury Park (Mr. Serpico, attorney; George D. McGill, on the brief).

 

Hussam Chater argued the cause for respondent The City of Asbury Park (Ansell, Zaro, Grimm & Aaron, P.C., attorneys; James G. Aaron, of counsel; Mr. Chater, on the brief).

 

Gasiorowski & Holobinko, attorneys for respondent Stand Up For Asbury Park, join in the briefs submitted by respondents Zoning Board of Adjustment of the City of Asbury Park and The City of Asbury Park.1

 

PER CURIAM

Plaintiff, Market Street Mission d/b/a Jersey Shore Rescue Mission (the Mission), appeals from the Law Division order affirming the City of Asbury Park Zoning Board's (Board) denial of its application for four use variances, while the Board cross-appeals the Law Division judge's initial determination that the proposed use of the property at issue was inherently beneficial. We reverse and remand with directions.

The Mission is a non-profit, non-denominational Christian organization that has ministered to the homeless and helpless in Morristown for over a century. It estimates that its ministry, over the years, has housed or fed, or both, millions of people. In January 2005, the Mission filed an application for four use variances in order to operate a rescue mission at property it owned in the City of Asbury Park (City). The property consists of a two-story commercial structure with adjacent land located partially in the light industrial zone (LI) and partially in the B-2 business zone. There are two residences located within the same block, as well as a residential area situated one block away. In the past, the property housed a religious institution and had been used for religious purposes, as well as a used car operation.

The Mission sought variances for a soup kitchen, a forty-person residence, a house of worship, and the continuance of the used automobile sales operation. The application also sought two waivers for drainage and soil borings. The Mission proposed to: (1) serve a hot meal every night to approximately 100 men, women, and children; (2) provide ecumenical religious services nightly on a voluntary basis; (3) house a total of thirty-seven homeless people on an emergency basis for no longer than seven days, who, between the hours of 7:00 a.m. and 4:00 p.m., would be released from the shelter into the community; and (4) operate a three-month residential Life Change Program for ten men.

The Board conducted hearings on the applications between April and November 2005. Upon completion of the proceedings, the Board adopted a resolution denying all of the requested variances and waivers. The Board concluded that the proposed use for the property was not inherently beneficial. Plaintiff filed an action in lieu of prerogative writs in the Law Division. After conducting its hearing, the court reversed the Board's decision and remanded the matter for further proceedings. The court found that there was a preponderance of evidence in the record demonstrating that the proposed use was inherently beneficial and that the Board's determination otherwise was arbitrary and capricious. The court remanded the matter to the Board for an analysis as to whether the proposed use was "an inherently beneficial use" in accordance with the Supreme Court's decision in Sica v. Board of Adjustment of the Township. of Wall, 127 N.J. 152, 159 (1992).

On remand, the Board granted the variances subject to fifteen conditions, which included the provisions for a guard or staff member for outside patrol one hour before and after the dinner program and a guest waiting area for clients located inside the facility. The Board memorialized its decision in a March 28, 2006 resolution. Thereafter, a group called "Stand Up for Asbury Park" (Stand Up) filed a complaint in lieu of prerogative writs seeking reversal of the Board's resolution granting the variances and waivers. Stand Up argued that the Board failed to make the requisite Sica findings. With leave granted by the court, the mayor and council appeared as amicus curiae. On December 4, 2006, the court entered an order remanding the matter to the Board for further proceedings once again. The court permitted a limited expansion of the record as follows:

[T]he Board may consider the following limited additional testimony or evidence[:] (a) David Scott's testimony before the Board on March 14, 2006; (b) cross-examination of Mr. Scott, by plaintiff or members of the public, as concerns his March 14, 2006 testimony and his specific testimony on April 19, 2005 on the subject that the Market Street Mission is seen as a blessing in Morristown; (c) additional testimony or evidence or public comment relevant and material to the subject matter describe[d] in subparagraphs (a) and (b) supra.

The court retained jurisdiction and consolidated the two matters. Stand Up did not seek a stay of the Board's March 28, 2006 resolution approving the application, and although the December 4 order remanded the matter for further proceedings, the Mission commenced its meals program on February 11, 2007, and four months later, on June 1, opened its shelter.

In accordance with the court's December 4 order, the Board conducted further proceedings and, upon completion of the proceedings, unanimously reversed its prior decision. The City ordered the Mission to cease all of its operations. This was followed by the Mission's motion before the court seeking temporary restraints. The court denied the motion on October 25, 2007. The Board memorialized its decision in a November 27, 2007 resolution. Thereafter, the Mission filed an amended complaint on January 11, 2008, seeking reversal of the Board's resolution.

The court conducted a bench trial on July 16, 2008, and affirmed the Board's decision in a written opinion dated August 28, 2008. In affirming the Board's action, the trial judge first noted that another judge, in an earlier ruling, found that the Mission was an "inherently beneficial use" and noted that the parties had not appealed this determination. Consequently, the judge focused his analysis upon whether the Mission had satisfied its burden relative to the negative criteria. The court concluded that the Mission failed to satisfy its burden and therefore affirmed the Board's action. The court entered its final judgment order dismissing the Mission's complaint with prejudice. The present appeal followed.

On appeal, plaintiff raises the following points for our consideration:

POINT I

 

THE BOARD'S DENIAL OF THE APPLICATION DEFIED NEW JERSEY'S STRONG PUBLIC POLICY.

 

POINT II

 

THE STANDARD OF REVIEW OF THE BOARD'S DENIAL OF THE APPLICATION.

 

POINT III

 

THE STANDARD FOR GRANTING THE USE VARIANCES SOUGHT.

 

a. THE MISSION HAS SATISFIED THE POSITIVE CRITERIA.

 

b. THE NEGATIVE CRITERIA.

 

POINT IV

 

THE NEGATIVE CRITERIA HAVE BEEN SATISFIED.

 

a. THE PUBLIC INTEREST.

 

b. DETRIMENTAL IMPACT.

 

1. THE MISSION WILL SERVE HOMELESS MEN WHO ORIGINATE OUTSIDE OF ASBURY PARK'S BOUNDARIES, AND SUCH MEN WILL BE EXPECTED TO LEAVE THE MISSION DURING DAYTIME HOURS.

 

A. THE BOARD'S CONCERNS ARE BASED ON SPECULATION.

 

B. THE CLEAR EVIDENCE IN THE RECORD REFUTES THE SPECULATION.

 

2. THE TYPES OF THE MEN SERVED BY THE MISSION.

 

3. THE OVERSIGHT OF THE COUNSELORS PROVIDING THE MISSION'S SERVICES.

 

4. THE EFFICACY OF THE MISSION'S PROGRAMS AND THE CITY'S EFFORTS TO ADDRESS ITS HOMELESS PROBLEM.

 

5. ASBURY PARK'S MASTER PLAN AND ZONING ORDINANCES.

 

c. DESPITE THE MISSION'S INVITATIONS TO IMPOSE REASONABLE CONDITIONS, THE BOARD FAILED TO DO SO.

 

d. BALANCE THE POSITIVE AND NEGATIVE CRITERIA.

 

I.

 

The law governing the issuance of use variances is set forth in N.J.S.A. 40:55D-70(d). Under this section of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, a zoning board or board of adjustment may "[i]n particular cases and for special reasons, grant a variance[,]" but

[n]o 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).]

In Sica, supra, the Court provided guidance to zoning boards in assessing the positive and negative criteria in any use variance application:

We suggest the following procedure as a general guide to municipal boards when balancing the positive and negative criteria. First, the board should identify the public interest at stake. . . . [such as] housing for the poor and homeless[.]

 

. . . .

 

Second, the Board should identify the detrimental effect that will ensue from the grant of the variance.

 

. . . .

 

Third, in some situations, the local board may reduce the detrimental effect by imposing reasonable conditions on the use. If so, the weight accorded the adverse effect should be reduced by the anticipated effect of those restrictions.

 

. . . .

 

Fourth, the Board should then weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good. This balancing, [w]hile properly making it more difficult for municipalities to exclude inherently beneficial uses permits such exclusion when the negative impact of the use is significant. It also preserves the right of the municipality to impose appropriate conditions upon such uses.

 

[Sica, supra, 127 N.J. at 165-66 (internal citations and quotations omitted).]

 

Here, the trial judge concluded that the positive criteria had been met because neither party challenged the earlier ruling that the Mission's shelter was inherently beneficial. In the City's cross-appeal, it urges that the court erred in reaching this conclusion. We disagree.

The error in the court's earlier ruling was that it did not specifically identify the public interest at stake. This error, however, did not lead to an unjust result and was therefore harmless, Neno v. Clinton, 167 N.J. 573, 586 (2001), because the Board's November 27, 2007 resolution conceded that the "overall concept of the application qualifies as an inherently beneficial use and is well intended." See Homes of Hope, Inc. v. Mt. Holly Twp. Zoning Bd. of Adjustment, 236 N.J. Super. 584, 588-89 (1989) (recognizing, for example, housing for the homeless as an inherently beneficial use). We therefore reject the City's argument that Homes of Hope, Inc. is distinguishable, as without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore turn our attention to the trial court's affirmance of the Board's findings related to the negative criteria under Sica. Sica, supra, 127 N.J. at 165-66.

 

II.

Because variances should be granted sparingly and with great caution, courts must give greater deference to a variance denial than to a grant. Nynex Mobile Commc'ns Co. v. Hazlet Twp. Zoning Bd. of Adjustment, 276 N.J. Super. 598, 609 (App. Div. 1994). The same standard of review applies to a reviewing court. Charlie Brown of Chatham, Inc. v. Bd. of Adjustment of Chatham, 202 N.J. Super. 312, 321 (App. Div. 1985). In our review of any municipal zoning board's action, we limit our review to a determination of whether the Board's decision was arbitrary, unreasonable, or capricious. Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd., 343 N.J. Super. 177, 198 (App. Div. 2001).

Arbitrary and capricious decision-making is evidenced by determinations predicated upon unsupported findings. Witt v. Borough of Maywood, 328 N.J. Super. 432, 442 (Law Div. 1998), aff'd, 328 N.J. Super. 343 (App. Div. 2000). The law gives deference to a board s particular knowledge of local conditions. Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990). A decision of a land use board is presumed to be supported by facts in the record and the party challenging the decision has the burden of proving otherwise. Worthington v. Fauver, 88 N.J. 183, 208 (1982). Further, municipal action is not arbitrary and capricious if exercised honestly and upon due consideration, even if an erroneous conclusion is reached. Ibid. Moreover, the absence of evidence in support of a board's denial does not mean necessarily that a board's denial was arbitrary. Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J. Super. 1, 5 (App. Div. 1976). Finally, a court may not substitute its judgment for that of a board. Burbridge, supra, 117 N.J. at 385.

Here, the trial court reviewed the concerns raised during the course of the proceedings, including (1) that homeless men would be released during daylight hours and the shelter would attract homeless persons from other communities, which would cause an increase in crime and strain community resources; and (2) that there would be an additional 1000 men "cycling into the facility." The court also focused on the Board's consideration that there was a nearby residential area consisting of single-family homes, the absence of any meaningful background check on the Mission's clientele, and the lack of an oversight program because the facility is not licensed.

Applying the Sica analysis, the court made the following findings:

There is a significant risk that those with criminal backgrounds will be welcomed into the Mission programs. There is also no oversight of the program since the facility is not licensed by the state. Likewise, the people using this facility are people with documented drug and alcohol problems. It is not good for the community to have these people roam the streets during the day and after the program is over. Moreover, an expert planner has testified that the proposed facility is too large for the intent and purpose of the zone plan and should not be located near a residential facility.

 

. . . [T]here will be an increase in men loitering on the streets, an increase in the male homeless population in Asbury Park, and it will significantly burden the city. Moreover, the Board members did not believe that there would be an opportunity for the 27 plus men in the long term program to get jobs. There will also theoretically be over 1,000 men cycling into the facility in the short term program. Many of these men would be left homeless in Asbury Park with no way to get back to their respective towns. Likewise, the criminal element needs to be taken into consideration. . . .

 

. . . [T]he Mission has not shown that they can reduce the detrimental effects. They have not stated how they will reduce the number of homeless people in Asbury Park that will accumulate because of the Mission. Over 1,000 homeless men would theoretically come in, yet there is no way to send them back to their current locations under the proposed plan. The Mission does not even address this issue. Numerous individuals spoke up against the Mission and very few people spoke up for the Mission. If the Mission had stated some sort of plan to bus the homeless out of Asbury Park then there could be a possibility of granting the application, but there is nothing in the record to indicate that the Mission had this plan.

 

Based upon these findings, the court concluded that the "negative criteria far outweighed the positive criteria. Although the Mission will serve a public good in housing the homeless, there are too many negatives to this goal because of the size of the Mission."

We are satisfied, from our review of the record, the ultimate result reached by the Board that it "would in essence have to go beyond the imposition of reasonable conditions and completely redesign the application in order to make [the Mission's proposal] work under the Sica analysis" is not supported by the facts in the record. Consequently, the decision denying the four variances was arbitrary and capricious. We separately address each of the specific factors the Board relied upon to deny the variances and which the trial court adopted as part of its findings in affirming the denial.

A. Significant Risk That Those With Criminal Backgrounds Will Be Welcomed Into the Mission Program.

Beyond pure speculation, there was no evidence to support this concern. The Mission indicated that it was without authority to conduct background checks, and that contention was not disputed. Asbury Park Police Chief Mark Kinmon (Chief Kinmon) testified that his police department is not permitted to share criminal background investigation information with the Mission. Morristown Police Chief Karl Peter Demnitz (Chief Demnitz) provided extensive testimony about Morristown's experience with the Mission's shelter program in that city. He testified that the program has existed in Morristown in some capacity in excess of 100 years. He explained that his police department utilizes the Mission as a placement resource for homeless persons in Morristown. When told that the Mission's executive director, David Scott (Scott), characterized the Mission as a "blessing" for Morristown, he indicated that he would not use that term. Rather, he expressed the opinion that the Mission was a "[b]enefit to the watch commanders who call and are trying to place homeless people[.]" He also testified that his department had to deal with the Mission's "failures" and explained the failures as:

If someone is residing at the Market Street Mission and they happened to drink alcohol that day and are not allowed in the doorway, then oftentimes they become a problem in the eyes of the Morristown police officer who has to respond to that call and try to offer other accommodations for that individual.

Additionally, he testified about an arrest of a homicide suspect who gave the Mission as his address. He indicated that he had the occasion to speak to Scott after the arrest of this homicide suspect. He told Scott that the Mission "needed to add a line of questioning where they could get a background of the person, at least say to them, if there is anything we need to know about that will bring attention to this organization, you need to tell me." Following this discussion, Chief Demnitz was unaware of any indication that Scott failed to cooperate with the police department in this regard and he indicated that Scott informed him the program now "ask[s] about people's background and past[.]" Chief Demnitz agreed that this change in practice reflected further cooperation by the Mission with his police department. Moreover, no evidence was presented that the Morristown Mission was occupied by persons with a significant criminal record history or that the greater number of persons serviced were ex-offenders.

B. There Is No Oversight Of The Program Since The Facility Is Not Licensed.

The Mission presented evidence that it is a licensed shelter subject to state and county health and safety regulations and is also subject to oversight by the Department of Community Affairs. Scott also testified that in addition to holding a bachelor's degree in behavioral science and master's degree in counseling, he is a licensed alcohol and drug counselor and a certified clinical supervisor. Additionally, he testified that the Mission's counselors are all supervised by him and generally have a minimum of two years experience. The Board presented no evidence to refute this testimony.

C. The People Using The Mission Are People With Documented Drug And Alcohol Problems. It Is Not Good For The Community To Have these People Roam The Streets During the Day And After the Program Is Over.

As noted earlier, Chief Demnitz provided significant testimony related to Morristown's experience with the Mission's program. Responding to questions about the daily release of residents into the Morristown community, the following testimonywas elicited from him:

[BOARD MEMBER] MS. JONES: One of the things that many people are concerned about is the fact that you are going to have [twenty-seven] members turned out onto the street at seven o'clock in the morning with no place to go.

 

[CHIEF DEMNITZ]: Yes.

 

MS. JONES: Have you found this to be a problem in Morristown?

 

[CHIEF DEMNITZ]: No.

 

MS. JONES: Do you have any knowledge of them . . . having difficulties with shoplifting, house break-ins, et cetera, et cetera?

 

[CHIEF DEMNITZ]: No.

Beyond this testimony, the Board was not presented with any competent evidence establishing that the release of residents into the community during the day created any risk of harm to the welfare of the citizens of the City. There was testimony presented that over the years, the City has referred its homeless people to shelters in Atlantic City, Trenton and New York, and had transportation agreements with these shelters to return these persons to Asbury Park for court proceedings. Given the duration of these proceedings over a two-year period, there was sufficient time to explore what, if any, problems these receiving cities may have encountered if similar release policies exist in those shelters. That, however, was not done.

There was testimony from City residents about what they perceived to have been an increase in crime since the Mission commenced its operations. Their claims that the incidents involved persons affiliated with the Mission were not borne out through the testimony of Chief Kinmon. During his testimony, he did not present any data related to any increase in criminal activity resulting from the Mission's presence between February 2007, when it opened its meals programs, and the time of his testimony in May 2007. While the personal observations of the citizens of the City can in no way be minimized, there was no competent evidence presented that the persons they observed engaging in criminal activities were associated with the Mission. Further, although the citizens may not have welcomed seeing mission clients walking in the neighborhood, such conduct violated no laws.

D. The Size Of The Proposed Facility And Its Proximity To A Residential Area.

The actual number of homeless persons in the City was particularly contentious during the proceedings. The numbers ranged from in excess of 100, based upon a 2005 report compiled by the Monmouth County Division of Social Services (County), to twenty to twenty-five, based upon the testimony of Anthony Nuccio, the City's Director of Community Relations and Social Services.

The Board accepted the testimony of Chief Kinmon, who relied upon Nuccio's testimony that there were twenty to twenty-five homeless persons in the City in 2007. Based upon that number, the Board concluded that the program was larger than the City's current needs. Nuccio testified, however, that the problem of homelessness was becoming more threatening. He acknowledged that his department transferred the responsibility for placing homeless persons to the County in the 1990s and that there are homeless people who know "our routines" and "[w]hat you are going to find they are doing, bury[ing] themselves in someplace, [and] we are not going to find them[.]" Thus, reliance upon Nuccio's testimony of twenty to twenty-five homeless persons, when he acknowledged that the bulk of responsibilities for servicing homeless people had been turned over to the County years earlier, was unreasonable.

E. The Increase in Loitering In the Streets and an Increase in the Male Homeless Population in Asbury Park.

Scott testified that the program would accept no more than twenty-seven men for the seven-day shelter program. Multiplied by fifty-two weeks, together with the ten men accepted every three months into the Life Change Program, the Board estimated that the male homeless population would increase to over 1000 men annually. Providing shelter services to more than 1000 men annually does not, however, automatically equate to increasing the population of homeless men in Asbury Park by 1000 annually. Scott testified that the Mission's staff would provide referral services, and the County's Social Service Administrator, Susan Rea, testified that she would work with the Mission in the area of placement. There was no evidence presented that the Mission's similarly-operated program in Morristown increased the male homeless population there on a permanent basis.

In short, the record upon which the Board relied to deny the variances was based not upon reliable factual data but upon expressed fears and speculation. No one disputed the need to address the plight of homelessness in Asbury Park. Contrary to the numbers presented by Nuccio, the County's statistics reflect hundreds of homeless persons throughout the County, with the vast majority of persons being present in Asbury Park and Neptune. Testimony from members of the public disputed Nuccio's testimony that there were twenty to twenty-five homeless persons in the City. Susan Rea, the County's administrator who oversaw the County's program, was charged with providing services to the homeless and to whom the City deferred in addressing the plight of the homeless, testified as follows:

Q: Ms. Rea, from your experience with your division, is there a homeless problem in Asbury Park?

 

A: There is.

 

Q: Is it being sufficiently dealt with by those attempting to provide services to that segment of the population?

 

A: No. We have actually had to establish waiting lists for people who qualify for emergency placement, because there are not sufficient rooms for us to put people into.

To summarize, the evidence before the Board demonstrated that there was a substantial need in the City for the services as proposed by the Mission. As Nuccio wrote in his August 10, 2005 memo to the City's manager, Terrence Reidy, the problem of homelessness in the City was becoming more threatening due to four factors:

In 1993, there were 34 licensed rooming houses and boarding homes, as well as [three] residential health care facilities in Asbury Park. Within these 37 facilities were 1,026 beds for the disenfranchised, seriously mentally ill, the working poor, and homeless. By 1997, there were 23 licensed facilities in Asbury Park, accounting for 439 beds[,] and today there is less than half that number.

 

Additionally, the City's master plan recommends philanthropic uses such as soup kitchens and addiction counseling centers in the LI Zone where the Mission's facility will be located. This philanthropic plan is consistent with the Legislature's declarations that: (1) "There is an ever present need for the emergency shelter for victims of fire, natural disasters, domestic violence and other causes of homelessness[,]" N.J.S.A. 55:13C-1(a); (2) "It is a matter of urgent public concern that safe and habitable shelter be available at all times to all residents of this State, and that governmental procedures be expedited if this shelter is to be provided[,]" N.J.S.A. 55:13C-1(b); and (3) "It is the long-standing policy of this State that no person should suffer unnecessarily from cold or hunger, or be deprived of shelter." N.J.S.A. 52:27D-281.

We agree that the Mission's proposal to feed the hungry, shelter the homeless, counsel the addicted and train the jobless is an inherently beneficial use under the Sica standard, 127 N.J. at 156, and therefore satisfies the positive criteria under N.J.S.A. 40:55D-70(d). Moreover, the Mission's proofs established that the variances could be granted without substantial detriment to the public good and that the Mission will not substantially impair the intent and purpose of the zone plan and the zoning ordinance. Ibid. The Board's determination otherwise was therefore arbitrary and unreasonable. We therefore reverse.

We reverse the judgment of the trial court and remand the matter to the Board to set reasonable conditions. We do not retain jurisdiction.

 

 

 

1 As to the City of Asbury Park's cross-appeal, respondent Stand Up For Asbury Park does not rely on that portion of the City of Asbury Park's brief, as no cross-appeal was filed by Stand Up For Asbury Park.