SETON HALL UNIVERSITY v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF SOUTH ORANGE VILLAGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5076-10T3

SETON HALL UNIVERSITY, a

non-profit corporation of

the State of New Jersey,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT

OF THE TOWNSHIP OF SOUTH

ORANGE VILLAGE,

Defendant-Respondent.

_______________________________

ArguedMarch 5, 2012 Decided March 23, 2012

 

Before Judges Ashrafi and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3997-09.

 

Kevin J. Coakley argued the cause for appellant (Connell Foley, L.L.P., attorneys; Mr. Coakley, on the brief).

 

Patrick J. Dwyer argued the cause for respondent.

PER CURIAM

In this prerogative writs case, plaintiff Seton Hall University (Seton Hall or the University) appeals from a May 16, 2011 order upholding a resolution by the Zoning Board of Adjustment of the Township of South Orange Village (the Board) denying Seton Hall's application for a "use" variance and dismissing its complaint. We affirm.

Seton Hall seeks to convert a three-story six-bedroom residence, formerly used as an in-home doctor's office,1 into faculty offices and a welcome center for its military science department. The property is located at 1 South Centre Street, adjacent to the University's campus but within a residential district known as Tuxedo Park, a "Residence A: Single Family Zone" (RA-60 zone) in South Orange. From the backyard, the property abuts a large University parking lot located within the "University Zone" (U zone).2

In 2008, Seton Hall applied for a "use" variance along with certain "bulk" variances and preliminary and final site plan approval. The Board conducted a three-day hearing,3 at which Seton Hall presented testimony and evidence in support of its application.

The University stipulated that the use variance would be applicable for only so long as Seton Hall used the property for faculty offices. The University presented testimony from five witnesses: Dennis Garbini, its vice president of finance and technology; Lieutenant Colonel John Haubert, the chairperson of the military science department; Kenneth Bienkowski, its engineer; Alfred Consoli, its architect; and James Dowling, its planner, the only planning expert to testify at the hearing.

Garbini testified that Mooney Hall, the building housing the military science department, was insufficient because it did not have an elevator or handicap accessibility. He stated that although the subject property was not "well suited for a residence at the University," the property could serve as a new military science faculty building. Garbini also testified that the University intended to "maintain the front of the home along Cent[re] Street as it appears as it is today, as a residence," make changes to the fencing, including placing a gate across the driveway, and create an entrance from the parking lot through the backyard.

Haubert testified that the military science program needed to be on-campus because an off-campus location would cause lower matriculation into the program. He stated that the program needed "visibility." Haubert also testified that he "did no reconnaissance of alternate sites."

Dowling testified that the University serves an inherently beneficial use and discussed the positive and negative criteria required for a variance pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. He opined that the property is "particularly suited" for the military science department because it is adjacent to the campus boundary and accessible from the parking lot, thereby eliminating a need for additional parking. He also stated that the property would remain "exceptionally residential in character in terms of its visibility."

As to the negative criteria, Dowling opined that there would be no substantial detriment to the public good. He testified that there would be no intrusive outdoor activities or large gatherings in the backyard; the hours would be limited to office hours; no firearms would be stored onsite; access would occur only through the backyard; there would be no increased street parking; and the house would maintain low profile lighting. Dowling further opined that there would be no substantial impairment to the zoning plan and ordinance. He stated that "the use would be less intense in regards to its activity on South Centre Street than the previous [doctor's office] use," and that Seton Hall would "maintain a residential appearance . . . consistent with the character of other homes in the area." Finally, Dowling analyzed the four prongs of the Sica balancing test4 and concluded that the benefits of granting the variance would outweigh the detriments.

On April 7, 2009, the Board adopted a resolution denying the variance. The Board found that Seton Hall's intended use was inherently beneficial, but that, "after applying the Sica balancing test, . . . a use variance [was] not warranted."

Regarding benefits of the proposed use, the Board found that the variance would allow the University to locate its military science department "on a parcel directly adjacent to the University campus," and that Haubert had "stated his preference for the program to maintain an on-campus presence in order to help with recruiting." However, the Board stated:

Although other University officers may have looked at other locations, [Haubert] stated that he had not looked, nor had he been asked to look, at other possible locations, either on or off campus, including the building located at 525 South Orange Avenue which is owned by the [University], is presently being used by the [University] for offices, and is directly across the street from the main entrance to the University. Although Colonel Haubert testified that an on campus location helps with recruiting[,] there was no convincing evidence concerning the degree to which recruitment would be affected if the Department were located at 525 South Orange Avenue as opposed to 1 South Centre Street, nor was there any convincing testimony why the Department could not be located in another location on campus either existing or to be built.

Next, the Board considered the detriments of the proposed use and concluded that they would be substantial:

Allowing the University to expand, even for the limited purpose of faculty offices and a welcoming/recruitment center, into the surrounding residential neighborhood of Tuxedo Park, a neighborhood which by reason of its singular homogenous residential use offers an intact buffer against the urban problems of Newark to the east and the institutional [University] to the west, would be destructive of the zoning plan and ordinance. The Board recognizes the fragility of Tuxedo Park and the importance of preserving its zoning boundary in order to preserve its residential character. Although [Seton Hall's] plans were intended to minimize negative impacts, the Board finds that notwithstanding those efforts[,] the Property at 1 South Centre would no longer be a part of the adjacent residential community because it would no longer have the type of daily human activity normally associated with a single family home. It would instead become a small office building in a residential community.

Finally, the Board found that there were "no other conditions which could be imposed, further to the ones [Seton Hall] has already offered, which could offset the substantial detriment outlined above." Thus, the Board concluded that "on balance the benefits of the proposed use are far outweighed by the detriments to both the public good and the goals of the zoning plan and ordinance."

Following denial of its application, Seton Hall filed a complaint in lieu of prerogative writs. On May 16, 2011, the judge entered an order upholding the Board's decision and issued a written decision. The judge found that the record supported the Board's conclusion that the University "had offered no convincing testimony as to why the offices could not be located somewhere in the existing campus." Specifically, the judge stated:

There was no specific testimony about the availability of space on campus, what other on-campus locations had been considered, or the ability or inability to construct a new building on the campus. There was no evidence that the inventory of available campus space had been reviewed or rejected for some reason.

The judge further found that Seton Hall's "expert witnesses admitted that they had not looked into other possible campus locations for the Department." She observed:

When asked if he had considered or examined other properties on campus, [Haubert] stated he had not. When [Dowling] was asked if there was available space elsewhere on campus for a new building[,] he stated he did not know. He further stated he did not know the reason why the renovation for Mooney Hall could not include new offices for the Department. Mr. Garbini similarly offered no evidence that the goals sought to be achieved giving the Military Science Department it[s] own space and allowing for a welcome area could not be met elsewhere on campus.

Further, the judge found that the record supported the Board's determination that Seton Hall "had offered no convincing testimony as to why the office building owned by the University directly across from the main gate could not be used for the Military Science Department." She stated:

Although [Haubert] testified that he was an expert in ROTC programs and in his opinion it was more difficult to recruit when the program was not on campus, there were no facts, studies, or literature offered to support this opinion. No figures regarding campus versus off campus ROTC recruitment at Seton Hall or any other university were introduced.

 

The judge also noted that the Board was free to reject Haubert's opinion as unsubstantiated.

Next, the judge found that "the Board's conclusions regarding the nature of Tuxedo Park and the effects of the prohibited use on that neighborhood [were] not unsupported by the record." She stated:

The evidence before the Board reflects that it is an island of a residential neighborhood that acts as a buffer from the urban problems of the neighboring city on one side and an institution on the other. The [c]ourt cannot find that it was arbitrary or unreasonable for the Board to conclude that putting a small office building (no matter how well masked) on one of the largest lots, in a "fragile" buffer residential neighborhood would be a substantial detriment.

 

The judge also found that the Board's balancing of the positive and negative criteria was not arbitrary:

The University exists in a University Zone in which all of its beneficial uses are permitted. The 1979 Master Plan first recommended that [South Orange] establish a "university" designation. The Specific Plan Objectives for the University zone included a purpose to restrict university uses to a "university" land use area, which coincided with the then current development of the University property. That same plan sought to protect existing residential neighborhoods. In the 1991 revision to the Land Use Element of the Master Plan[,] the recommended interior perimeter setback within the University Zone was 30 ft., except where the University adjoined a residential lot where the setback increased to 50 ft. In 1995 [South Orange] amended the Land Development Ordinance to increase the [minimum perimeter setback:]

 

A minimum perimeter setback of 75 feet is required[;] however the minimum set back shall be 100 feet where the University property line coincides with the rear property line of parcels fronting on South Centre Street.

 

[(Emphasis omitted).]

Thus, the judge found that the Board did not act arbitrarily in concluding that the "impairment of the ordinance and zone plan was substantial and outweighed the positive criteria when the University showed no reason supported by evidence why it needed to extend its zone boundaries into Tuxedo Park."5

Finally, the judge found that the case was "distinguishable from many beneficial use variance cases, because [Seton Hall] owns substantial property (its entire campus) specifically zoned to allow all of the this [sic] particular Applicant's beneficial uses." Thus, Seton Hall could not use the beneficial use variance "to effectuate a rezoning."

Local zoning boards have "peculiar knowledge of local conditions [and] must be allowed wide latitude in the exercise of delegated discretion." Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965). As such, courts must not trespass on the administrative work of local zoning boards by substituting independent judgment in areas of factual disputes. Ibid. Because the MLUL favors "comprehensive planning by ordinance rather than variances, use variances are appropriate only in 'exceptional circumstances.'" Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001) (quoting Stop & Shop Supermarket Co. v. Bd. of Adjustment of Springfield, 315 N.J. Super. 427, 434 (App. Div. 1998), rev'd on other grounds, 162 N.J. 418 (2000)).

Accordingly, our review of the Board's variance denial is limited to considering whether the decision was arbitrary, unreasonable, or capricious. Id. at 198 (citing Kramer, supra, 45 N.J. at 296). And we make "no judicial declaration of invalidity in the absence of [a] clear abuse of discretion." Kramer, supra, 45 N.J. at 296-97. Moreover, we give "greater deference to variance denials than to grants of variances, since variances tend to impair sound zoning." Med. Ctr. at Princeton, supra, 343 N.J. Super. at 199. Specifically, our scope of review "is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Jock v. Zoning Bd. of Adjustment, Twp. of Wall, 184 N.J. 562, 597 (2005). The crucial question is "whether the board followed the statutory guidelines and properly exercised its discretion." Med. Ctr. at Princeton, supra, 343 N.J. Super. at 199 (citing Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990)).

Furthermore, when considering an appeal from a trial court's review, we are bound by the same standard as the trial court. N.Y. SMSA, Ltd. P'ship v. Bd. of Adjustment, Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). However, the "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).

Here, Seton Hall applied for a use variance pursuant to N.J.S.A. 40:55D-70(d), which provides, in relevant part:

The board of adjustment shall have the power to:

 

d. In particular cases for special reasons, grant a variance to allow departure from [zoning] regulations . . . to permit: (1) a use or principal structure in a district restricted against such use or principal structure . . . .
 

. . . .
 

No 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.

 

The statute requires an applicant to establish positive and negative criteria. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998). "The 'special reasons' requirement . . . is referred to as the 'positive' criterion for a use variance[,] and the 'without substantial detriment to the public good' and 'will not substantially impair the intent and the purpose of the zone plan and zoning ordinance' requirements are referred to as the 'negative' criteria." Salt & Light Co. v. Willingboro Twp. Zoning Bd. of Adjustment, 423 N.J. Super. 282, 287 (App. Div. 2011) (citing Smart SMR, supra, 152 N.J. at 323).

The Legislature has recognized that some uses are "inherently beneficial" in nature and deserve special treatment. See Smart SMR, supra, 152 N.J. at 323. Thus, N.J.S.A. 40:55D-4 defines an "inherently beneficial use" as "a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare." There is "no dispute that the University, as an institution of higher learning, qualifies as an inherently beneficial use." Hughes v. Monmouth Univ., 394 N.J. Super. 207, 228 (Law Div. 2006), aff'd, 394 N.J. Super. 193 (App. Div.), certif. denied, 192 N.J. 599 (2007) (citing Smart SMR, supra, 152 N.J. at 323; Burbridge, supra, 117 N.J. at 394).6

When an applicant seeks a variance for an inherently beneficial use, the applicant's burden of proof is "significantly lessened." Smart SMR, Inc., supra, 152 N.J. at 323. In fact, "[a]n inherently beneficial use presumptively satisfies the positive criteria," ibid. (citing Burbridge, supra, 117 N.J. at 394), and satisfaction of the negative criteria "does not depend on an enhanced quality of proof" id. at 323-24 (citing Sica, supra, 127 N.J. at 160-61). Cf. Medici v. BPR Co., 107 N.J. 1, 4 (1987) (holding that a use that is not inherently beneficial requires "an enhanced quality of proof, as well as clear and specific findings by the board of adjustment, that the grant of a use variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance").

In Sica, supra, 127 N.J. at 165, the Supreme Court suggested a four-part balancing test "as a general guide to municipal boards when balancing the positive and negative criteria." The Court explained:

First, the 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. Certain effects, such as an increase in traffic, or some tendency to impair residential character, utility or value, will usually attend any nonresidential use in a residential zone. When minimal, such an effect need not outweigh an inherently beneficial use that satisfies the positive criteria.

 

Third, in some situations, the local board may reduce the detrimental effect by imposing reasonable conditions on the use.

. . .

 

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.

 
[Id. at 165-66 (citations and internal quotation marks omitted).]

Although "properly making it more difficult for municipalities to exclude inherently beneficial uses . . . [the balancing] permits such exclusion when the negative impact of the use is significant." Id. at 166 (alteration in original) (internal quotation marks omitted). Thus, the Court has stated that "even when a proposed use inherently benefits the general welfare, the applicant still must 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." Smart SMR, supra, 152 N.J. at 324 (internal quotation marks omitted) (quoting N.J.S.A. 40:55D-70(d)).

On appeal, the parties do not dispute that the use for which Seton Hall seeks the variance qualifies as an "inherently beneficial use" and thereby presumptively meets the positive criteria of N.J.S.A. 40:55D-70(d). See Smart SMR, supra, 152 N.J. at 323. Their main contention is whether the Board properly found that Seton Hall had not established the negative criteria.

Seton Hall argues that the Board misapplied the applicable standard, and that the Board's balancing analysis did not demonstrate that the variance would cause substantial detriment to the public good.7 The University also argues that the judge failed to apply the Sica balancing test and did not "give due consideration to the benefits of the project." Although the Board and the judge made reference to a factor that we deem irrelevant to the competing considerations, we disagree that they misapplied the Sica balancing test.

In its resolution, the Board stated that Seton Hall had not considered locating the faculty offices and welcome center in a building it owned across South Orange Avenue from the campus, and that it had offered insufficient proof that direct access to the campus was necessary to help with its objective of recruiting students for its military science program. The trial judge also criticized the absence of studies or literature to prove that direct access to the campus was necessary for the program. We view these criticisms as overstepping the proper role of the Board and the court in considering the zoning application. Once the Board determined that the proposed use was inherently beneficial, it was not its proper function to question the manner that the University sought to operate its program or its determination as to the benefits of an on-campus location. Furthermore, the suggestion that the offices could be located off-campus runs counter to the Township's 1979 Master Plan and its objective "to restrict university uses to a 'university' land use area." The Board and the trial court recognized that planning objective in assessing the negative impact of allowing University uses to encroach into the Tuxedo Park neighborhood.

Nevertheless, given our limited review, we cannot conclude that the Board's findings are unsupported. The Board was concerned that the property "would no longer be a part of the adjacent residential community." The judge found that Tuxedo Park is "an island of a residential neighborhood that acts as a buffer from the urban problems of the neighboring city on one side and an institution on the other." As such, we agree that it was not arbitrary or unreasonable for the Board to conclude that "putting a small office building (no matter how well masked) on one of the largest lots, in a 'fragile' buffer residential neighborhood would be a substantial detriment." The University was unable to overcome this concern.

We also reject the University's contention that the Board should have provided expert planning testimony to counter Dowling's opinion that the zoning ordinance would not be impaired because the University would maintain the residential fa ade of the house. It was not the Board's burden to establish that there would be a detriment. "The burden of proving the right to relief sought in the application rests at all times upon the applicant." Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 255 (2008) (internal quotation marks omitted). Furthermore, the Board is free to accept or reject testimony, including expert testimony, as long as it explains a reasonable basis for doing so. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 434-35 (App. Div. 2009).

The Board's resolution reflects that the Board utilized the Sica balancing test and, except as previously stated, made appropriate findings of fact to support its conclusions. The Board did not abuse its discretion in determining that the public benefit derived from the proposed military science offices was outweighed by the detrimental effect upon the integrity of the zoning plan that would result from the erosion of Tuxedo Park's single-family residential neighborhood. Although Seton Hall's use constitutes an inherently beneficial use, the Board reasonably determined that allowing the University to expand into Tuxedo Park would cause substantial detriment to the zoning plan and ordinance. Thus, the Board's action was not arbitrary or unreasonable.

A

ffirmed.

1 A portion of the first floor was used for in-home doctor's visits, a permitted use within the RA-60 zone. However, the zone does not permit office buildings.

2 The property is the corner lot at South Centre Street and South Orange Avenue, the latter of which is a major thoroughfare with high levels of traffic.

3

December 2, 2008, December 9, 2008, and February 10, 2009.

4 Sica v. Bd. of Adjustment of Twp. of Wall, 127 N.J. 152, 165-66 (1992).

5 In her written decision, the judge noted that in October 2007, South Orange adopted a Smart Growth Plan as part of the Master Plan, which recommended the creation of a Historic Preservation area that would include Tuxedo Park's residential neighborhood. The judge indicated that Seton Hall objected to consideration of this information because it was not addressed in the Board's resolution. However, she presumed the Board was aware of local conditions. See Sica, supra, 127 N.J. at 167.

6 See also N.J.S.A. 40:55D-4 (providing that an inherently beneficial use "includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure").

7 We decline to consider the unpublished opinions that the University offers to demonstrate application of the Sica balancing test. Our court rules provide that "[n]o unpublished opinion shall constitute precedent or be binding on any court," and with limited exceptions, inapplicable here, "no unpublished opinion shall be cited by any court." R. 1:36-3; see also Guido v. Duane Morris LLP, 202 N.J. 79, 91 n.4 (2010) (rejecting use of unpublished decisions as precedent).