LOORI BUS COMPANY v. TOWNSHIP OF MIDDLETOWN ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3499-09T3

LOORI BUS COMPANY,

Plaintiff-Respondent,

v.

TOWNSHIP OF MIDDLETOWN

ZONING BOARD OF ADJUSTMENT,

Defendant-Appellant.

___________________________

December 15, 2010

Argued November 29, 2010 - Decided

Before Judges Reisner, Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-3474-09.

Gregory W. Vella argued the cause for appellant (Collins Vella & Casello, attorneys; Mr. Vella, of counsel and on the brief).

Martin A. McGann, Jr., argued the cause for respondent.

PER CURIAM

The Township of Middletown Zoning Board of Adjustment (Board) appeals from a February 23, 2010 judgment reversing its decision denying plaintiff Loori Bus Company's land use application and ordering the Board to grant plaintiff use and bulk variances. We affirm in part, and vacate and remand in part.

To summarize, plaintiff, a school bus company, sought a use variance to construct an additional bus parking area on a lot adjoining its existing bus depot and parking lot. Plaintiff also sought a bulk variance to permit construction of a gravel lot instead of a paved lot.1 Because we agree with the trial judge that plaintiff's school bus operation is an inherently beneficial use and that the record does not support the Board's decision denying the use variance, we affirm the judge's order directing the Board to grant the use variance. However, because the Board never ruled on plaintiff's related application for a variance allowing a gravel rather than a paved parking lot, we vacate the portion of the trial court's order granting that variance and remand the issue to the Board for its prompt consideration.

I

The following evidence was presented at the hearings before the Board. In his testimony, the company's owner, Michael Loori, outlined the reasons why his company needed more space to park its school buses. According to Loori, eighty percent of his company's work was for the Middletown Township school district, with another twenty percent performed for the Hazlet and Holmdel school districts. The company owned forty school buses, and the existing parking area, located on Lot 8, was too small to accommodate them. He therefore sought to expand the bus parking area to Lot 7, which like Lot 8, was located in the B 2 business zone.

Loori described the difficulty and delay his drivers experienced in negotiating the buses in and out of Lot 8. Due to the cramped space, there were frequent minor collisions between the buses as the drivers tried to move them around on the lot. He testified that he had no immediate plans to expand the business, although he admitted that he would be open to taking on additional business in the future if it became available. His immediate goal, however, was to move some of the existing forty buses from the existing lot to the proposed new parking area on the adjoining Lot 7, in order to provide more room to maneuver them in and out of the facility.

Loori also proposed to use only the existing ingress and egress onto Route 36, so that no buses would be traversing the side streets adjacent to Lot 7. In response to questions from the Board, the applicant offered to provide additional information about the possible environmental impact of covering the new lot with gravel instead of paving it.

On the second day of the hearing, the applicant presented testimony from Douglas Harm, an environmental geologist. According to Harm, using crushed stone would be more environmentally sound than using pavement because there would be no storm water run-off and the stone would, to some extent, act as a filter to keep small oil drips from reaching the groundwater. He also testified that he had been testing the existing graveled bus parking area on Lot 8 since the early 1990s and had found no significant environmental issues. He admitted, however, that it would be possible to install a system to catch run-off from a paved lot.

At the next hearing date, the applicant presented testimony from Christine Cofone, a professional planner. According to Cofone, the proposed use was inherently beneficial and any detrimental effects from granting the variance could be addressed by imposing conditions such as a cap on the total number of vehicles permitted on the lot. She testified that the applicant would agree to a cap of fifty buses and twenty-five vans. Cofone also testified that the proposed use was not significantly different from the types of uses permitted in the B-2 zone, including "auto repair uses, equipment and tool rental, funeral parlors, ambulance services, [and lumber] yards." She also testified that the property could be adequately screened from the surrounding neighborhood with fencing and by planting additional trees to supplement the existing "fairly dense span of trees." According to Cofone, there was also a planning benefit to using the existing highway access for the school bus operation, and to have the new bus lot contiguous to the existing lot.

One neighbor testified in opposition to the application. He contended that the existing bus facility generated unpleasant diesel smells, and he was concerned that the condition would be worse if the use expanded. He also expressed concern about possible storm water run-off. He further testified that when he bought his house, he was told that Lot 7 would never be developed because there were wetlands on the lot. Neither the Board nor the objector presented any expert testimony.

In rejecting the application, the Board found that the use was not inherently beneficial because "the applicant has provided no testimony that additional parking for school buses is required in the Township of Middletown or the adjoining municipalities." Analyzing the application as one for an ordinary use, rather than an inherently beneficial use, the Board concluded that Lot 7 was not "particularly suited for the expansion of a non permitted use."

The Board found that expanding the prior non-conforming use would bring traffic, diesel fumes, headlights and noise closer to the adjoining residential homes. The Board further concluded that the application was contrary to the Master Plan, which contemplated that the area be "improved with businesses." According to the Board, instead of improving the lot with a business, the applicant proposed "an expanded parking lot that will be over congested with vehicles." Contrary to the record, the Board's resolution recited that "numerous members of the public appeared on this application and testified as to the negative impact the proposal had on their property."

Plaintiff filed a complaint in lieu of prerogative writs challenging the Board's decision. Relying on Scholastic Bus Co. v. Zoning Bd., 326 N.J. Super. 49 (App. Div. 1999), the Law Division judge found that school bus facilities are "a use necessarily accessory to the school buildings themselves" and therefore the proposed bus parking lot was clearly a beneficial use. She also found that the applicant had established a need to expand the parking area and that "the proposed plan provides for a better, more efficient and safer facility than currently exists."

She also found that Lot 7 was particularly suited to the proposed use because it was located next to the existing bus facility. Further, she found that the proposed use was not substantially different than a variety of permitted uses in the zone, such as commuter parking lots, gas stations, auto repair businesses, lumber yards, trailer and camper sales, ambulance services, nightclubs, and other uses that might generate noise and traffic in the surrounding neighborhood. The judge further reasoned that the nearby residential properties could be protected by leaving some woodland as a buffer.2

While the judge ordered the Board to grant the variances, she also remanded the matter to the Board to consider imposing reasonable conditions. On remand, the Board imposed several conditions, including substantial buffering requirements and restrictions on night-time lighting. The Board also limited Lots 7 and 8 to "a total of 50 school buses, 25 school vans (small buses) and 80 passenger vehicles." Plaintiff has not cross-appealed from those conditions.

II

Ordinarily, reviewing courts owe deference to the decision of a zoning board and will not disturb that decision unless it is "'arbitrary, capricious or unreasonable.'" Medici v. BPR Co., 107 N.J. 1, 15 (1987) (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)). However, neither this court nor the trial court must defer to a board decision that is premised on a mistaken interpretation of the law. See Grancagnola v. Planning Bd., 221 N.J. Super. 71, 75-76 & n.5 (App. Div. 1987).

In this case, we agree with the trial judge that the Board based its decision on a legally incorrect definition of an inherently beneficial use. The Board also grounded its decision on an exaggerated view of the potential harm presented by the application, in light of the types of uses permitted by the existing zoning. The Board further premised its decision on a baseless finding that there had been massive public opposition to the application, when only one objector testified at the hearings. We affirm the trial judge's decision to grant the use variance, substantially for the reasons stated in her February 9, 2010 opinion. We add the following comments.

In a well-reasoned decision, Judge Pressler, then sitting on the Law Division, determined in Rolfe v. Borough of Emerson, 141 N.J. Super. 341 (Law Div. 1976), that school busing facilities were an inherently beneficial use because school busing was an integral part of the educational system. Id. at 355. Pertinent here, Rolfe further rejected the municipality's argument that the school bus facility was not inherently beneficial because there was no showing of a need for expanded bus facilities in the area:

The primary argument advanced by the borough at trial in resisting the conclusion that the school bus facility is indeed inherently beneficial is based on its claim that there was no showing by plaintiff that there is a need for such additional facilities in the county or region. The simple answer to this is that the complex of the aforecited statutes and regulations relating to school bus contracting makes clear the compelling governmental interest in promoting competition in the bidding for bus routes and hence that plaintiff's ability to operate more efficiently and to expand his operation so as to enable him to bid for additional routes subserves the public interest. At any rate, there does not appear to be a glut of school bus contractors operating either in the county or the region in question.

[Id. at 356.]

Following Rolfe, in Scholastic Bus Co. v. Zoning Board, 326 N.J. Super. 49 (App. Div. 1999), we likewise recognized school bus facilities as an inherently beneficial use:

We hold that the proposed use is inherently beneficial. Scholastic operates a bus business for the transportation of school children fulfilling the public obligation to transport school children. See N.J. Const. (1947) art. VIII, 4, P3. A school bus facility is a use necessarily accessory to the school buildings themselves, and as such, is clearly inherently beneficial in the zoning sense.

[Id. at 55.]

Ordinarily, an applicant seeking a use variance must satisfy the positive and the negative criteria required by N.J.S.A. 40:55D-70d:

The statute requires proof of both positive and negative criteria. Under the positive criteria, the applicant must establish "special reasons" for the grant of 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 the purpose of the zone plan and zoning ordinance."

[Sica v. Bd. of Adjustment, 127 N.J. 152, 156 (1992).]

However, if a use is inherently beneficial, the applicant presumptively satisfies the positive criteria. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998). Further, with respect to the negative criteria, the applicant need not "establish by enhanced proof that the variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Sica, supra, 127 N.J. at 154-55. In judging such an application, a board must weigh the inherent benefit of the proposed use against any possible negative impacts and determine whether those negative impacts can be mitigated by imposing reasonable conditions on the application:

First, [the local land use] Board should identify the public interest at stake. Some uses are more compelling than others. . . . 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.

[Smart SMR, supra, 152 N.J. at 324 (quoting Sica supra, 127 N.J. at 165-66).]

We agree with the trial judge that plaintiff established that its proposed use was inherently beneficial. The Board's rationale, that the use was not inherently beneficial because there was not an immediate need for more school bus service, was mistaken. Plaintiff sought to improve an existing inherently beneficial use by providing more space to park and safely maneuver its school buses. Further, as Rolfe recognized, to the extent that the improvement might make plaintiff's operation more competitive in the future, the public would benefit. Rolfe, supra, 141 N.J. Super. at 356.

We also agree with the trial judge that the proposed use was sufficiently similar to uses permitted in the zone to allay any reasonable concern about possibly undermining the purpose of the local zoning plan. Moreover, as in Sica, we agree with the trial judge that any concern the Board had over possible negative effects on the surrounding neighborhood could be mitigated by imposing reasonable conditions. See Sica, supra, 127 N.J. at 167. Accordingly we affirm the trial judge's order directing the Board to grant the use variance but allowing the Board to impose reasonable conditions.

However, we must part company with the trial judge on the question of the bulk variance for using gravel rather than paving. The Board never addressed that issue, and our review of the record does not reveal the question to be so clear as to warrant depriving the Board of the opportunity to pass upon it in the first instance.

"If there are no relevant findings of fact, there is also no basis for judicial review of the validity of the determination." Amato v. Randolph Twp. Planning Bd., 188 N.J. Super. 439, 453 (App. Div. 1982). In Amato, as here, the municipal board did not make "a single finding of fact or conclusion respecting" the applicable criteria. Id. at 452. Thus, we ruled that "no reviewing court, either this court or the Law Division, can make a determination as to whether [the municipal board's] power was reasonably and sustainably exercised since the resolution here complained of, which required strict enforcement, is completely silent as to the considerations set for by [the governing statute]." Ibid.

Accordingly, we vacate the portion of the Law Division order granting the bulk variance and remand the issue to the Board to render a decision on that specific application. In light of the amount of time that has passed since the application was first submitted, we trust the Board will render an expedited decision.

Affirmed in part, vacated and remanded in part.

1 Plaintiff characterizes the application as a "design waiver" rather than a bulk variance. Our concern is that the Board must decide the application, and we imply no view of the merits of plaintiff's characterization. Plaintiff sought an additional variance to construct an accessory use without a principal use, which the trial judge also ordered the Board to grant. However, at oral argument, the Board's attorney advised us that the Board was not pursuing its appeal of that aspect of the trial court's order. We therefore need not address that issue.

2 At oral argument of this appeal, the Board's counsel clarified that the four houses closest to the proposed new bus parking lot are non-conforming residential structures in the B-2 zone. Additional houses located across a street from the proposed lot are in a residential zone.