TSI MARLBORO, INC v. TOWNSHIP OF MARLBORO ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5382-08T3

TSI MARLBORO, INC.,

Plaintiff-Respondent/

Cross-Appellant,

v.

TOWNSHIP OF MARLBORO ZONING

BOARD OF ADJUSTMENT,

Defendant-Respondent,

and

MARLBORO SPORTS CENTER, LLC,

Defendant-Appellant/

Cross-Respondent.

________________________________________________________

August 17, 2011

 

Argued May 3, 2011 - Decided

 

Before Judges Graves, Messano and Waugh.

 

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1623-04.

 

Hussam Chater argued the cause for appellant/ cross-respondent (Ansell Zaro Grimm & Aaron, P.C., attorneys; Rick Brodsky, of counsel; Mr. Chater, on the brief).

 

Ira E. Weiner argued the cause for respondent/cross-appellant (Beattie Padovano, LLC, attorneys; John J. Lamb, of counsel, Daniel L. Steinhagen and Mr. Weiner, on the brief).

PER CURIAM

Defendant Marlboro Sports Center, LLC (MSC), appeals from a May 26, 2009 order of the Law Division that reversed a February 11, 2004 resolution adopted by the Marlboro Township Zoning Board of Adjustment (the Board). The Board's 2004 resolution had granted MSC's application for a use variance, but the Law Division determined that its decision was arbitrary, capricious, and unreasonable. For the reasons that follow, we affirm the Law Division's order.

"Because of the legislative preference for municipal land use planning by ordinance rather than variance, use variances may be granted only in exceptional circumstances." Kinderkamack Rd. Assocs., LLC v. Mayor and Council of Oradell, ___ N.J. Super. ___ (App. Div. 2011) (slip op. at 2). Therefore, in order to obtain a variance, an applicant must satisfy both the "positive" and "negative" criteria of the Municipal Land Use Law (MLUL). See, e.g., New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 160 N.J. 1, 6 (1999); Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adj., 361 N.J. Super. 22, 37 (App. Div. 2003).

Under the positive criteria, an applicant must show "special reasons" to justify the proposed use variance. N.J.S.A. 40:55D-70(d)(1). As the Court has stated, "'special reasons' takes its definition and meaning from the general purposes of the zoning laws" enumerated at N.J.S.A. 40:55D-2. Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 386 (1990). There are three scenarios in which such reasons may be found:

"(1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility; (2) where the property owner would suffer 'undue hardship' if compelled to use the property in conformity with the permitted uses in the zone; and (3) where the use would serve the general welfare because the proposed site is particularly suitable for the proposed use."

 

[Kinderkamack, supra, slip op. at 3-4 (quoting Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adj., 388 N.J. Super. 67, 76 (App. Div. 2006)).]

In contrast, the negative criteria require an applicant to prove "that [the] variance can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70(d). Additionally, proponents of non-inherently-beneficial uses must satisfy "an enhanced quality of proof" by securing "clear and specific findings by the board of adjustment that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici v. BPR Co., 107 N.J. 1, 21 (1987).

Having reviewed the facts of this case in a previous appeal, we provide only a brief summary here. See TSI Marlboro, Inc. v. Twp. of Marlboro Zoning Bd. of Adj., No. A-1155-06 (App. Div. Sept. 5, 2008). MSC is the owner of two lots (the Property) totaling 7.85 acres in the Township of Marlboro, New Jersey (Marlboro or the Township). Although the Property lies within a 200-acre light industrial zone, the Township's zoning ordinance conditionally permits recreational uses by not-for-profit entities. MSC is a for-profit enterprise.

On October 21, 2002, MSC applied to the Board for a use variance to construct a 104,150-square-foot "recreational facility and health club" on the Property. Eight public hearings were held on the application between February 13, 2003, and December 3, 2003, during which MSC presented numerous expert witnesses. In addition, the Board accepted testimony and evidence from its own experts and those of plaintiff TSI Marlboro, Inc. (TSI), a potential competitor who opposed MSC's application.

James W. Higgins, MSC's expert planner, testified as follows regarding the positive criteria:

I think that the variance can be granted due to the fact that the site has a particular suitability for this particular use. I say this for a number of reasons. First of all, the use itself is . . . a beneficial use1; and the site would provide safe and adequate recreation . . . for the specific use. Therefore, I think the general welfare would be enhanced in that manner.

 

. . . .

 

The size and configuration of the site I think are ideal for the use. We can provide adequate access, landscaping, and other site amenities, including parking; and it's one that requires a larger lot. This is a lot [that] will accommodate the large buildings and the adequate parking facilities.

 

The site is a transitional-type site located between the industrial areas to the west and the south and the recreational and residential areas to the north and to the east, so that this site in my opinion is better suited to this type of use rather than an industrial use that would involve trucks, a warehousing use that would involve trucks, possibly 24-hour[-]a[-]day operation with trucks that could be disruptive, particularly to the adjacent residential uses in Colts Neck Township as well as other residential uses that are along Vanderburg Road . . . .

 

In addition, by locating this type of use in an industrial area, there's a certain synergy between this use and the industrial use. I think it's a benefit to the industrial zone that the employees in the industrial zone would be able to take advantage of this use and to provide for recreation, exercise, and so on; so that I think it's an actual benefit to the surrounding area.

 

The other point would be the fact that the site is located on two fairly heavily traveled streets so access to the site is not a problem . . . .

 

Additionally, regarding the negative criteria, Higgins testified that the proposal would not have "any significant negative impact either to the surrounding properties or to the zone plan":

The use itself, as I said, is a conditionally-permitted use in the zone. The ordinances recognize that a use of this nature is compatible with the uses that are permitted in the zone. The only difference is the ownership and operation being for-profit rather than quasi-public, but that doesn't affect the nature of the use itself. So the use I think is consistent with what's permitted in the area.

 

. . . .

 

I think there's a relationship between this use and surrounding uses. Particularly, you have the municipal recreational complex directly across Vanderburg Road from the site, so very definitely there's no negative impact on that. There would be no negative impact on the surrounding industrial uses. I think the use is not only compatible with them, I think that there is an interplay between the two, where there is a mutual benefit between the two, so for those reasons, I don't see any negative impact.

 

Richard Cramer, Marlboro's Township Planner, essentially endorsed Higgins's testimony, indicating that the special reasons offered "[stood] on their own." According to Cramer, the "locational aspect" of the Property particularly its proximity to the municipal recreation zone fulfilled the positive criteria by "distinguish[ing] it from other lots that are zoned light industrial." As to the negative criteria, Cramer noted that, in 1997, the Township had expanded the permitted uses for the light industrial zone in order to stimulate the area's development. Therefore, he advised the Board to consider "the economic development of the light industrial zone" when considering MSC's proposal.

On December 3, 2003, the Board approved MSC's use variance application by a vote of six to one. In the February 11, 2004 resolution memorializing its decision, the Board credited Higgins's testimony and found: "This property is particularly suitable for the proposed use due to its location at the edge of the Light Industrial Zone, approximate to the municipal zone which distinguishes this property from other Light Industrial parcels." It also determined that the proposed use "would not be a substantial detriment to the intent and purpose . . . of the zone plan or zone ordinance due to its particularly suitable location at the edge of the LI Zone."

TSI filed a complaint in lieu of prerogative writs with the Law Division on April 1, 2004, claiming, among other things, that the Board's decision was arbitrary, capricious, and unreasonable. On September 12, 2006, the Law Division reversed the Board's decision and denied MSC's use variance application. MSC appealed, however, and we reversed and remanded based on the court's failure to make adequate findings and its reliance on evidence outside the record. See TSI Marlboro, Inc. v. Twp. of Marlboro Zoning Bd. of Adj., supra, slip op. at 16-21.

Following oral arguments, the Law Division rendered a seventy-five-page written decision that again denied MSC's application. As an initial matter, the court relied on Village Supermarket, Inc. v. Mayfair Supermarkets, Inc., 269 N.J. Super. 224 (Law Div. 1993), to determine that TSI had standing to object to MSC's application as an "interested party" under N.J.S.A. 40:55D-4.

Regarding the substance of the application, the court observed that MSC had presented "no proofs that the athletic center could not be built elsewhere," and it found that "this particular lot's size and location alone do not create suitability." According to the court, the February 11, 2004 resolution was "exactly the type of incantation that the [Supreme] Court warned boards to avoid" in Medici v. BPR Co., supra, 107 N.J. at 22. The court further found that because "MSC's proposed development [did] not accord with any of the purposes of Marlboro's Ordinance," it did not satisfy the negative criteria.

In addition, the court determined that the Board had "arrogated the Governing Body's authority by effectively rezoning the LI Zone." It based this decision largely on the size of the Property, which "amount[ed] to approximately ten percent of the property remaining in Marlboro for light industrial development,"2 and its finding that the variance "would have the effect of substantially impairing the intent and purpose of Marlboro's LI Zone."

The Law Division memorialized its decision in an order on May 26, 2009. MSC appealed on July 7, 2009, and TSI cross-appealed on July 20, 2009.3

MSC now presents the following arguments on appeal:

Point One

 

The trial court erred in holding that TSI had standing to object and file an action in lieu of prerogative writs challenging MSC's variance approval.

 

Point Two

 

The trial court erred in reversing the Board's approval as the trial court ignored the substantial evidence supporting the Board's decision and ultimately substituted its own judgment for that of the Board.

 

A. The Board's finding that MSC's application satisfied the positive criteria is supported by substantial evidence.

 

B. The Board's finding that MSC's application satisfied the negative criteria is supported by substantial evidence.

 

Point Three

 

The trial court erred in holding that the Board's approval constituted an impermissible rezoning as said approval did not substantially alter the Township's Light Industrial Zone.

 

We first address the issue of TSI's standing. The MLUL's enforcement provision, N.J.S.A. 40:55D-18, empowers any "interested party" to "institute any appropriate action or proceedings to prevent" a violation of the statute's provisions. In the context of zoning disputes, an "interested party" is defined as:

any person, whether residing within or without the municipality, whose right to use, acquire, or enjoy property is or may be affected by any action taken under [the MLUL], or whose rights to use, acquire, or enjoy property under [the MLUL], or under any other law of this State or of the United States have been denied, violated or infringed by an action or a failure to act under [the MLUL].

 

[N.J.S.A. 40:55D-4(b).]

 

"New Jersey's courts have long taken a liberal approach to standing in zoning cases and in that connection have broadly construed the MLUL's definition of 'interested party.'" DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, 172 (App. Div.), certif. denied, 181 N.J. 544 (2004). As a general rule, citizens and taxpayers of a municipality have standing to challenge its actions with regard to the zone plan. See, e.g., Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 215 (App. Div. 1999) (stating that any citizen or taxpayer of a municipality has standing to challenge an action of the board of adjustment under the MLUL) (citing Booth v. Bd. of Adj. of Rockaway, 50 N.J. 302, 305 (1967)). Moreover, we have held that a challenger's status as a competitor to the applicant does not preclude it from contesting the action of a board of adjustment "on the ground that the Board's action was illegal or exceeded its powers. Indeed, a competitor may be particularly well equipped to frame the challenge and to provide the background that will illuminate its merits and faults." DePetro, supra, 367 N.J. Super. at 171-72.

In this case, it is clear that TSI had standing to challenge the Board's resolution. Regardless of its motive, TSI is a Marlboro taxpayer and therefore has a vested interest in the actions of the Board. Accordingly, it falls within the broad definition of "interested party" contained in N.J.S.A. 40:55D-4.

We next consider whether the Law Division erred by reversing the Board's decision as arbitrary, capricious, or unreasonable. To make this determination, we employ the same standard of review as the trial court. Kinderkamack Road Assocs., LLC v. Mayor and Council of Oradell, supra, slip op. at 17. "A board of adjustment's determinations are presumed to be valid and will only be overturned if they are unsupported by the record and 'so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion.'" D. Lobi Enters., Inc. v. Planning/Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009) (quoting Ocean Cnty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adj., 352 N.J. Super. 514, 521-22 (App. Div.), certif. denied, 175 N.J. 75 (2002)).

Because there is no evidence in the record that the proposed use is inherently beneficial or would avert an undue hardship, our analysis with regard to the MLUL's positive criteria hinges on the Property's particular suitability for the proposed use. See Kinderkamack, supra, slip op. at 3-4. This narrow standard is satisfied only where "the use is one that would fill a need in the general community, where there is no other viable location, [or] where the property itself is particularly well fitted for the use either in terms of its location, topography or shape." Funeral Home Mgmt., supra, 319 N.J. Super. at 210. Furthermore, as we recently reiterated, mere proximity to a neighboring zone is insufficient to establish particular suitability:

"It can always be said that the border area of a zone is affected by the adjoining uses and that such an area is particularly adaptable to uses pursuant to a variance. However, the lines have to be drawn somewhere if a zone plan is to have any real purpose. The erosion of border areas through variances is destructive of sound zoning and cannot be allowed except where special circumstances beyond those ordinarily associated with borders are shown. . . . The proposal . . . would undoubtedly return [the applicant] a larger profit on its investment. That is not the test, however, by which a variance application should be measured."

 

[Kinderkamack, supra, slip op. at 19 (second omission in original) (quoting Funeral Home Mgmt., supra, 319 N.J. Super. at 212-13).]

 

On the record before us, we see no evidence that the Property is particularly suitable for use as a large fitness and recreational complex. MSC's expert planner, Higgins, rested his conclusion on three factors: (1) the positive effect a recreational use would have on the general welfare, (2) the size of the lots in question, and (3) the Property's proximity to other zones and uses. In light of the standards set forth in Kinderkamack and Funeral Home Management, none of these reasons supports a finding of particular suitability under the MLUL. We therefore conclude that MSC failed to establish that "special reasons" existed for the proposed use under N.J.S.A. 40:55D-70(d)(1) and thus did not sustain its burden of proof before the Board.

MSC also argues that its application satisfied the negative criteria and that the variance did not constitute an arrogation of the governing body's authority. In particular, it highlights the similarity between the proposed use and the permitted conditional use by not-for-profit recreation facilities, as well as the relatively small percentage of the light industrial zone that would be impacted by the proposed use. In light of our decision on the positive criteria, however, we find it unnecessary to consider these arguments.

Accordingly, the May 26, 2009 order of the Law Division is affirmed.

1 Higgins admitted that the proposed use did not "rise to the level of an inherently beneficial use," but maintained that it would nevertheless "provide public benefit."

2 The record indicates that, as of October 15, 2003, eighty-five acres of the light industrial zone remained vacant.

3

Because of our decision on the merits of MSC's appeal, we need not consider the points raised in TSI's cross-appeal.