365 SPOTSWOOD/ENGLISHTOWN ROAD, LLC v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MONROE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5528-08T35528-08T3

365 SPOTSWOOD/ENGLISHTOWN

ROAD, LLC,

Plaintiff-Respondent,

v.

ZONING BOARD OF ADJUSTMENT

OF THE TOWNSHIP OF MONROE,

Defendant-Appellant.

________________________________________________________________

Argued Telephonically April 29, 2010 - Decided August 12, 2010

Before Judges Parrillo, Lihotz and Ashrafi.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2376-08.

Nancy Stewart argued the cause for appellant (Shain, Schaffer & Rafanello, attorneys; Karl R. Meyertons, of counsel and on the brief).

Howard D. Spialter argued the cause for respondent.

PER CURIAM

Defendant, the Zoning Board of Adjustment of the Township of Monroe, appeals from a Law Division judgment reversing its denial of an application to excise a 1978 unrecorded restrictive provision in a use variance affecting property owned by plaintiff, 365 Spotswood/Englishtown Road, LLC. Plaintiff's predecessor in title built a shopping center on the property after securing a use variance to allow retail parking on that portion of the parcel located in a residential zone. The variance was conditioned on the maintenance of a tree buffer separating the property from the adjoining residential lots. In 1998, the municipal master plan was modified and the zoning applicable to the property was changed from a split business/residential zone to a neighborhood commercial (NC) zone. Following revision of the master plan, the property was rezoned to NC, which allowed retail use. At the direction of the municipal planning board, which was reviewing its application to expand the shopping center, plaintiff applied to defendant to eliminate the tree buffer imposed by the 1978 restriction suggesting it no longer applied in the NC zone or, in the alternative, to seek a variance. Defendant denied plaintiff's request. In its review, the Law Division found the prior 1978 restriction, mandating that the wooded area remain undeveloped, was no longer applicable. It reversed defendant's denial of plaintiff's application and rescinded the 1978 restriction.

On appeal, defendant presents the following arguments:

POINT I

THE TRIAL COURT ERRED BY REVERSING THE ZONING BOARD'S DECISION WHEN IT WAS NOT ARBITRARY, CAPRICIOUS OR UNREASONABLE.

A. THE ZONING BOARD WAS FORCED TO DENY PLAINTIFF'S APPLICATION DUE TO PLAINTIFF'S UNREASONABLE REFUSAL TO CONSENT TO A THIRTY-DAY EXTENSION OF TIME AND ALLOW THE PUBLIC TO BE ADEQUATELY HEARD.

B. THE CONDITION OF APPROVAL GRANTED BY THE ZONING BOARD TO PLAINTIFF'S PREDECESSOR, WITH THE EXPRESS PURPOSE OF PROTECTING ADJOINING PROPERTY OWNERS, RUNS WITH THE LAND AND IS BINDING ON PLAINTIFF.

POINT II

AT A MINIMUM, THIS CASE SHOULD BE REMANDED TO THE ZONING BOARD TO MAKE FINDINGS OF FACT AND LEGAL CONCLUSIONS ON THE MERITS OF PLAINTIFF'S APPLICATION.

Following our review of the arguments presented, in light of the record and applicable legal principles, we affirm.

The property which is the object of this appeal is located at Block 160.06, Lot 35 on the Tax Map of Township of Monroe (property), commonly known as 365 Spotswood Englishtown Road. The site is used as a shopping center and located in the NC zone, which allows retail shops.

Plaintiff purchased the property in 1984 from Daniel P. DiStefano, who initially sought approval for its development and built the shopping center. At the time DiStefano filed his application for development, the property was located partially in a business zone and partially in a residential zone. The retail building was to be constructed in the business zone, and DiStefano sought a variance to extend a parking area to service the proposed shopping center sixty-four feet into the residential zone.

By resolution dated December 26, 1978 (1978 resolution), defendant unanimously approved DiStefano's application for a use variance to place parking spaces in the residential zone, to install a free-standing sign, and to locate a photo kiosk on the premises, conditioned on the remainder of the property not being developed. The 1978 resolution noted "[t]hat maintaining the natural tree buffer and further safeguards as a condition of approval, [assures] the extension of limited parking into the residential zone will not adversely affect the adjoining premises, not impair the intent and purpose of the zoning ordinance" and "[t]hat the measures consented to by the applicant will permit [DiStefano] to utilize his land zoned for business with the minimum impact upon the surrounding residential areas."

In addition to preserving the tree buffer, the 1978 resolution explicitly stated, "[t]he applicant has stipulated that for himself, his heirs, successors and assigns that the unused remaining parcel of the overall tract lying within the residential zone will and shall forever remain in its existing wooded condition to serve as a buffer for all residences situated on Evergreen Terrace." Moreover, "the aforesaid conditions and stipulations shall be deemed to run with the land and shall be binding upon all future owners of the premises."

The restrictions stated in the 1978 resolution were not recorded as deed restrictions. Defendant concedes the restriction would not have been revealed in a title search but was recorded in archived municipal records.

In 1998, following a periodic examination of the municipal zoning master plan, the property was re-zoned to NC. A real estate broker approached plaintiff inquiring whether the property was for sale. In reviewing this prospect, plaintiff learned of the zoning change and the initial use variance contained in the 1978 resolution.

In 2006, plaintiff applied to the Municipal Planning Board (the Planning Board) to expand the shopping center. The Planning Board advised plaintiff to present defendant with a request to either excise the 1978 resolution restrictions regarding the undeveloped tree buffer or grant a variance. Plaintiff's resultant application was deemed complete on September 27, 2007, and placed on the agenda for defendant's October 30, 2007 meeting. Due to scheduling conflicts, defendant adjourned plaintiff's application, re-listing it for December 26, 2007. After complying with all statutory notice requirements, plaintiff was informed the matter would again be continued until January 22, 2008.

On that date, defendant considered plaintiff's request to nullify the limiting condition previously accepted by DiStefano and imposed by the 1978 resolution. Plaintiff advocated the property's zoning permitted the proposed use. Alternatively, plaintiff sought a variance relieving it of the previously imposed conditions. Plaintiff's principal, Bernard Burkhoff, and its legal expert, Francis Clifford Gibbons, testified. The witnesses expressed that the 1978 resolution was not recorded and its restrictions were not disclosed or known when plaintiff purchased the property. However, the zoning change made the restriction no longer necessary. Burkhoff explained plaintiff had completed all requisite planning steps for development, including obtaining a storm water maintenance agreement, securing approval from the Middlesex County Land Development Review Committee, and filing a completed application pending before the Planning Board. Gibbons opined the relief sought was "in conformance with the policy set forth in the master plan," "the application seeks to have a permitted use[,]" "th[e] application would promote a desirable visual environment through creative development techniques, good civic design and arrangement," and the zoning application would "continu[e] to conduct the same permitted use as [has] been conduct[ed] . . . for many, many years."

Defendant also considered its consultant's report. Henry Bignell, hired as defendant's planner, stated "[f]rom a physical planning perspective, finding-of-facts #2 and #5 [of the 1978 resolution we]re no longer applicable to this site." These prior findings stated the property was located within two different zones (#2) and that the "applicant has stipulated that for himself, his heirs, successors and assigns that the unused remaining parcel of the overall tract lying within the residential zone will and shall forever remain in its existing wooden condition to serve as a buffer for all residences situated on Evergreen Terrace" (#5). Bignell advised the defendant that "[t]he 1998 zoning change has rendered the 1978 limitations on the site as unnecessary" and "[a]ny application after 1998 for this property would no longer require a use variance and would be substantially different than pre-1998 site plan and use variance applications." Bignell concluded:

The office recommends the Township of Monroe Zoning Board hear the applicant's request to eliminate the findings-of-the-fact #2 and #5 and any conditions of the 1978 resolution. Upon satisfactory testimony, the Board should consider amending that resolution to eliminate any findings-of-facts that may no longer reflect the conditions of the site.

A board member questioned how excising the 1978 resolution condition would affect residents. Plaintiff suggested the issue presented by the application was a legal one, and that whether some type of buffer remained necessary could be addressed by the Planning Board, but it had not prepared witnesses to address the issue. Once the meeting was open to the public, fourteen people appeared in opposition, three of whom spoke. Public opposition from by residents whose "homes had been protected by the wooded buffer from the existing commercial activities on the property" focused on their belief that the tree buffer could not be removed. The homeowners appeared upset by the apparent lack of notice for the 1998 zoning change, an act by the municipal governing body, not defendant.

One attendee requested the hearing be continued to allow the opponents the opportunity to discuss the matter and "perhaps seek counsel." Plaintiff objected and would not waive the requirement that defendant render a decision within 120 days of submission of a completed application, otherwise the application would be deemed approved. N.J.S.A. 40:55D-73. In light of plaintiff's refusal, defendant unanimously adopted a resolution denying plaintiff's application. At plaintiff's request, each board member related the basis for his or her vote; namely, the issue needed to be tabled to give the neighbors more time to "establish an understanding of what was changed in 1998." In denying plaintiff's application, defendant adopted a resolution that included no specific findings of fact and never evaluated the merits of plaintiff's request.

Plaintiff filed a verified complaint in lieu of prerogative writs seeking to nullify defendant's decision and to grant its application to eliminate the conditions imposed by the 1978 resolution. At the court's request, defendant's supplemental submissions showed the zoning change for the property was the result of the governing body's periodic re-examination of the master plan, obviating personal notice to affected landowners. N.J.S.A. 40:55D-62.1.

After additional argument, Judge Hurley rendered a written opinion on May 28, 2009. The court first noted plaintiff "could not be deemed to have constructive notice of the condition [imposed by the 1978 resolution] without an exhaustive inspection of municipal records." Further, it was uncontroverted that the property's zoning had changed and was now completely located within a commercial zone that allowed retail uses.

In its analysis, the court determined the 1978 resolution imposing the tree buffer specifically referenced the "unused remaining parcel of the overall tract lying within the residential zone," indicating a "clear intent" to maintain the wooded area "so long as the [p]roperty was within the residential zone[.]" By "adopti[ng] the [zoning] amendment, the governing body has determined that the change in zoning promotes the general welfare" and "has deemed the subject parcel to be appropriate for commercial development." The court reasoned that since the circumstances necessitating the tree buffer had changed and the property "is no longer in the residential zone[,]" the condition should be excised, an act that "would do no violence to the zone plan." Judge Hurley concluded plaintiff "is entitled to develop its property in accordance with local land-use regulations." Defendant filed this appeal.

It is well-settled that a trial court's review of a municipal board's action is limited to determining whether the decision was arbitrary, capricious or unreasonable. Kramer v. Bd. of Adj., 45 N.J. 268, 296 (1965); Medical Ctr. at Princeton v. Tp. of Princeton Zoning Bd. of Adj., 343 N.J. Super. 177, 198 (App. Div. 2001). As explained by the Supreme Court:

Courts cannot substitute an independent judgment for that of the boards in areas of factual disputes; neither will they exercise anew the original jurisdiction of such boards or trespass on their administrative work. So long as the power exists to do the act complained of and there is substantial evidence to support it, the judicial branch of the government cannot interfere . . . . Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.

[Kramer, supra, 45 N.J. at 296-97.]

A court must not "suggest a decision that may be better than the one made by the board, but [only] determine whether the board could reasonably have reached its decision on the record." Jock v. Zoning Bd. of Adj., 184 N.J. 562, 597 (2005).

The same scope of review applies in a review by this court. Bessman v. Gash, 131 N.J. 517, 529 (1993); Cohen v. Bd. of Adj., 396 N.J. Super. 608, 614-15 (App. Div. 2007); Charlie Brown of Chatham, Inc. v. Bd. of Adj., 202 N.J. Super. 312, 321 (App. Div. 1985). Therefore, although the trial court's conclusions on matters of law are not entitled to any particular deference, Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999); Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993), we likewise will "not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Zoning Bd. of Adj., 160 N.J. 41, 58-59 (1999). To secure reversal of a zoning board's decision to deny a variance request, the applicant must prove the evidence before the board was "overwhelmingly in favor of the applicant." Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adj., 361 N.J. Super. 22, 38 (App. Div. 2003) (internal quotation omitted); Medical Realty Assocs. v. Bd. of Adj., 228 N.J. Super. 226, 233 (App. Div. 1988). Keeping these standards in mind, we review defendant's arguments.

Defendant argues plaintiff's blatant refusal to continue the hearing was unreasonable and forced it to deny the application. As a public body, defendant considered a short delay necessary to allow "the objectors to have a full opportunity to adequately prepare for the hearing and look into the issue of retaining counsel." In light of all facts and circumstances, defendant maintains the adopted resolution was reasonable, not arbitrary. We disagree.

Without commenting on whether plaintiff was required to seek a variance under the circumstances presented, we determine defendant should have reviewed the merits of plaintiff's request. Throughout the zoning hearing, defendant's members noted the Planning Board was the body authorized to address the necessity of tree buffers between plaintiff's property and the adjacent residential neighborhood. Rather than confine its review to the zoning questions presented, defendant capitulated to the adjournment demands of residents concerned with the efficacy of the governing body's 1998 modification to the master plan, an issue well beyond defendant's jurisdiction.

Pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129, municipal planning boards possess a broad reservoir of authority to review and approve site plan applications, N.J.S.A. 40:55D-50, and to ensure compliance with the provisions of the local site plan ordinance. See N.J.S.A. 40:55D-41. This review "typically encompasses such issues as location of structures, vehicular and pedestrian circulation, parking, loading and unloading, lighting, screening and landscaping." Stop & Shop Supermarket Co. v. Bd. of Adj., 162 N.J. 418, 438-39 (2000). The Planning Board likely would weigh the citizens' concerns and impose appropriate conditions and restrictions on the proposed development to minimize possible intrusion or inconvenience to the continued use and enjoyment of neighboring residential properties. Id. at 439.

N.J.S.A. 40:55D-73(a) provides in pertinent part that "[t]he board of adjustment shall render a decision [on a variance application] not later than 120 days after the date . . . [of] the submission of a complete application for development." Subsection (b) states the "[f]ailure of the board to render a decision within such 120-day period or within such further time as may be consented to by the applicant, shall constitute a decision favorable to the applicant." N.J.S.A. 40:55D-73(b). We have observed the "application of the statutory time constraints must be anchored in the reason for their existence. The evil which the automatic approval provisions were designed to remedy was municipal inaction and inattention." Allied Realty, Ltd. v. Borough of Upper Saddle River, 221 N.J. Super. 407, 418 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988).

Plaintiff had a completed application pending before the Planning Board when it was instructed to submit its variance request. It diligently complied. Defendant twice adjourned the application's review, pushing it to the last possible date prior to expiration of the statute's 120-day limit. Finally, defendant's planner had ample opportunity to review the application and its attendant issues. He issued a full written report, agreeing with plaintiff's experts.

Objectors were given the opportunity to fully participate in the hearing. Other than voicing displeasure, however, they offered no legal basis to challenge plaintiff's position. Defendant was not required to grant the objectors' request for additional time; it is obligated only to afford an interested party the opportunity to be heard and to cross-examine other witnesses. See N.J.S.A. 40:55D-4 and -10(d); see also Mercurio v. DelVecchio, 285 N.J. Super. 328, 334-35 (App. Div. 1995), certif. denied, 144 N.J. 377 (1996) (finding the denial of an objector's request for an adjournment was not arbitrary).

Defendant identifies several opinions to support its position that it acted reasonably. First, defendant relies on Sprint Spectrum v. Zoning Bd. of Adj., 356 N.J. Super. 194 (Law Div. 2002), where a zoning board denied an application in its entirety without a hearing, after determining it lacked the necessary time to hear testimony and evaluate the application, based on prior experience with similar applications, and the applicant declined the board's request for adjournment. Id. at 197. From the time the plaintiff's application was completed, several zoning board meetings were available; however, plaintiff's counsel, representing a companion case for a related client, used the entirety of the available meeting time, delaying the defendant Board's consideration of the plaintiff's request. Id. at 197-98. From this experience with the plaintiff's attorney and the related matter, the defendant Board recognized the amount of time necessary to properly consider plaintiff's application. When the plaintiff declined to continue the hearings, the defendant Board denied its application. Ibid.

The trial judge determined the defendant Board had diligently pursued its review of the complex matter, but consideration of the related matter consumed all available time. Id. at 202. Further, the trial judge concluded that under these circumstances, the defendant's request for an extension of the 120-day limitation was not "unreasonable" and automatic approval of the plaintiff's application would have been inappropriate. Ibid. However, denial of the application in its entirety was also found inappropriate and unfair to the applicant; and therefore, the court remanded the matter for a decision on the merits. Id. at 203.

Defendant also cites another trial division opinion, Woodland Civic Ass'n v. Brick Homes, Inc., 144 N.J. Super. 78 (Law Div. 1976), as support for its position. In Woodland, the Law Division noted that it "is incumbent upon a zoning board to give all interested persons a fair opportunity to prepare their case." Id. at 88. The court concluded the zoning board was "arbitrary in not responding" to an objector's written continuance request, made three days before the first scheduled hearing on a complex use variance request. Ibid. "As one of the members of the [objecting] Civic Association observed[,] the [defendant] applicant has months, even years, to prepare his case and can get a continuance upon request, while objectors only had ten days including the Thanksgiving holiday." Ibid. The court further explained "[a]lthough the board erroneously refused to grant the continuance that error does not of necessity compel a remand of the case" since "aside from the refusal to grant the continuance, plaintiffs . . . were accorded a very fair and thorough hearing." Id. at 88-89.

We do not find these authorities inconsistent with the Law Division's determination in this matter. Here, defendant was not faced with the "impossible task" presented in Sprint Spectrum and had sufficient time to hear and consider all evidence relating to plaintiff's application. Additionally, any member of the public who opposed the request was given the opportunity to speak out. All that remained was defendant's consideration of the evidence presented, which it declined to provide. Instead, defendant denied the application in toto.

So too, the residential objectors offered no explanation for why they had not secured counsel. The objectors received notice prior to the December and January meetings and plaintiff's application was available for review. Yet, the basis of the articulated objections was directed at the 1998 change in zoning, not plaintiff's application, which was consistent with the existing zone classification of its property.

We agree with Judge Hurley that defendant's "denial was not based on the factors to be applied." "Such a course [] unfairly require[d] the applicant to, in effect, commence its application anew, visiting upon it cost and delay entirely avoidable and unnecessary." Sprint Spectrum, supra, 356 N.J. Super. at 203. Defendant's resolution to deny plaintiff's application without a determination on its merits, although it had been provided all necessary information, was arbitrary, capricious and unreasonable. Manalapan Holding Co. v. Planning Bd., 92 N.J. 466, 478 (1983) (holding as arbitrary a board's denial of an application in its entirety on purely procedural grounds).

Addressing whether the restriction imposed by the 1978 resolution runs with the land, defendant argues plaintiff remains bound by the restrictions. See Aldrich v. Schwartz, 258 N.J. Super. 300, 307 (App. Div. 1992) (holding variance conditions remained binding on subsequent purchasers, notwithstanding the absence of prior notice); but see Island Venture Assocs. v. N.J. Dep't. of Envtl. Prot., 179 N.J. 485, 496-97 (2004) (limiting Aldrich to its facts). Although we agree variances run with the land and are not personal to the property owner who obtained them, DeFelice v. Zoning Bd. of Adj., 216 N.J. Super. 377, 381 (App. Div. 1987), defendant's argument ignores that the 1998 zoning modification obviated the need for a use variance, as the residential zone was eliminated and retail use was unequivocally permitted.

A condition in a variance may be lifted or found unnecessary because of changed circumstances, allowing a Board to reconsider the issue. Soussa v. Denville Tp. Planning Bd., 238 N.J. Super. 66, 68 (App. Div. 1990); Allied Realty, supra, 221 N.J. Super. at 414; Cohen v. Borough of Fair Lawn, 85 N.J. Super. 234, 237 (App. Div. 1964). Here, the condition giving rise to the restriction no longer exists. Therefore, "the original purpose of the variance condition [no longer] remain[s] intact[.]" Aldrich, supra, 258 N.J. Super. at 312.

Addressing whether the interests that the variance was designed to protect still exist, we agree with plaintiff that the need for a buffer zone should be raised before the Planning Board before development is permitted; however, it is no longer relevant to any zoning issue. Zoning issues are governed by the zoning ordinance in effect at the time the case is ultimately decided. Hohl v. Tp. of Readington, 37 N.J. 271, 279 (1962). A zoning amendment presumably preserves the characteristics of the community and advances a beneficial purpose. Kruvant v. Mayor of Cedar Grove, 82 N.J. 435, 442 (1980); Timber Props., Inc. v. Tp. of Chester, 205 N.J. Super. 273, 277 (Law Div. 1984). Here, plaintiff's proposed use conforms to applicable zoning requirements and does not threaten the zoning scheme of the municipality. Mintz v. Tp. of Millstone, 374 N.J. Super. 396, 408 (App. Div.), certif. denied, 183 N.J. 590 (2005). Accordingly, the arguments supporting retention of a tree line to separate the property from the surrounding homes should be advocated to the Planning Board.

We conclude Judge Hurley fully and properly reviewed the issues presented in this case and conducted a "fact-sensitive analysis" of all applicable circumstances surrounding the restriction in light of the rezoning and other available relief to the concerned homeowners. Island Venture, supra, 179 N.J. at 495. There is little impact from reversing defendant's determination. Mintz, supra, 374 N.J. Super. at 409.

Accordingly, in the interests of justice, we reject defendant's request to remand the matter for additional review. See New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 160 N.J. 1, 16-17 (1999) (finding the applicant was entitled to relief, making any remand to the board unnecessary); Sprint Spectrum, L.P. v. Borough of Upper Saddle River Zoning Bd. of Adj., 352 N.J. Super. 575, 616 (App. Div.) ("Due to the Board's reluctance to properly consider the evidence in the record, our appropriate resolution is not a remand, but an order directing approval of the variances"), certif. denied, 174 N.J. 543 (2002); but see Stochel v. Planning Bd., 348 N.J. Super. 636, 649 (Law Div. 2000) (utilizing a limited remand, to make additional findings where there were no "findings of fact in this regard" on the record).

Affirmed.

 

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