JOSEPH KLEIN v. PLANNING BOARD OF THE BOROUGH OF BOUND BROOK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6292-10T2

JOSEPH KLEIN AND CAROL KLEIN,

Plaintiffs-Appellants,

v.

PLANNING BOARD OF THE BOROUGH

OF BOUND BROOK,

Defendant-Respondent.

____________________________________

March 29, 2012

Submitted March 14, 2012 - Decided

Before Judges J. N. Harris and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-904-10.

Vastola, Fackelman & Sullivan, attorneys for appellants (Lawrence A. Vastola, of counsel and on the brief).

McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for respondent (John P. Belardo, on the brief).

PER CURIAM

This is an appeal by plaintiffs Joseph Klein and Carol Klein from an order of the Law Division affirming defendant Borough of Bound Brook Planning Board's (the Board)1 decision to deny a use variance to permit outdoor parking of thirteen trucks at the rear of plaintiffs' property on West Main Street. Plaintiffs raise two points on appeal, challenging the action of the Board as well as the judgment entered by Judge Thomas C. Miller. We conclude that plaintiffs' arguments are without merit, and we affirm substantially for the reasons set forth in the judge's comprehensive twenty-page written opinion of August 8, 2011.

I.

The subject property is one-half acre in area and is improved with two brick buildings and a parking lot. One building is devoted to retail use (a specialty hardware store) and the other is used for storage and repair of machinery.

When plaintiffs acquired the property in 1991, the parking area was being used for the storage of motor vehicles, including school buses and dump trucks from time to time. This use continued through the Board's proceedings. No evidence was presented to indicate when motor vehicles were first stored on the property or when the relevant zoning ordinance was adopted.

The property is located in Bound Brook's B/R Business/Residential District, which permits retail uses as the zone's primary intended use. The surrounding neighborhood is an area of mixed uses, including a truck repair facility, a boarding house, a motor vehicle rental business, and a closed gasoline station. The outdoor storage of trucks in the B/R Business/Residential District is prohibited by Bound Brook's zoning ordinance.

Plaintiffs' expert witness, licensed planner Roger DeNiscia, opined that the site qualified for a use variance because, among other reasons, it was "a continuation of the existing and historical use on the site, and you might even say it's a minimal alteration of an existing non-conforming use." Accordingly, DeNiscia was of the view that "the site and area are particularly suited to the storage use." Additionally, DeNiscia indicated that the application advanced two goals of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163: (1) the promotion of the State's public health, safety, morals, and general welfare (N.J.S.A. 40:55D-2(a)) and (2) the encouragement of transportation routes that will promote the free flow of traffic (N.J.S.A. 40:55D-2(h)).2

In a five-to-two vote, the Board denied the application. Its memorializing resolution found that plaintiffs had failed to satisfy the affirmative and negative criteria embodied in N.J.S.A. 40:55D-70(d). In particular, the Board concluded that

the applicant had failed to demonstrate that the site was particularly suited for the proposed use variance sought. Moreover, the Board found that the special reasons offered by Planner DeNiscia did not support the grant of the use variance and, in fact, were perfunctory and without much detailed or factual analysis and support.

. . . .

The Board finds the Planner DeNiscia's testimony as to the positive criteria, 2a and 2h was perfunctory, sketchy, and not detailed.

. . . .

Moreover, in evaluating the negative impact on the zone plan and ordinance, as well as the detriment to the public good, the Board has persuasive [sic] knowledge and expertise.

Judge Miller thoroughly canvassed the record and accurately applied the legal principles governing the action in lieu of prerogative writs. He ultimately dismissed plaintiffs' complaint, finding that the Board's findings and conclusions were supported by the evidence and were not arbitrary, capricious, or unreasonable. This appeal followed.

II.

"[W]hen reviewing the decision of a trial court that has reviewed municipal action, [the Appellate Division is] bound by the same standards as was the trial court." Fallone Props., L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004); see also CBS Outdoor, Inc. v. Bor. of Lebanon Plan. Bd., 414 N.J. Super. 563, 577 (App. Div. 2010). Thus, our review of the Board's action is limited. See Bressman v. Gash, 131 N.J. 517, 529 (1993) (holding that appellate courts are bound by the same scope of review as the Law Division and should defer to the local land-use agency's broad discretion).

It is a cardinal principle of land use law that "a decision of a zoning board may be set aside only when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor, 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). "[P]ublic bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adj. of Wall Twp., 184 N.J. 562, 597 (2005). Therefore, "[t]he proper scope of judicial 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." Ibid.

Furthermore, it is uniformly recognized that use variances should be granted sparingly and with great caution. Kinderkamack Rd. Assocs., LLC v. Mayor & Council of Bor. of Oradell, 421 N.J. Super. 8, 21 (App. Div. 2011) (citing N.Y. SMSA, L.P. v. Zoning Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004)). "Because of the legislative preference for municipal land use planning by ordinance rather than variance, use variances may be granted only in exceptional circumstances." Id. at 12. Accordingly, it is for this reason that courts give "greater deference to variance denials than to grants of variances, since variances tend to impair sound zoning." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adj., 343 N.J. Super. 177, 199 (App. Div. 2001); see also Nextel of N.Y. v. Bor. of Englewood Cliffs Bd. of Adj., 361 N.J. Super. 22, 38 (App. Div. 2003). Moreover, given the enormous hurdles that stand in the way of use variances, courts have been admonished for almost twenty-five years to be particularly vigilant in their review of use variance applications for commercial non-inherently beneficial uses. See generally Medici, supra, 107 N.J. at 25; see also Nuckel v. Bor. of Little Ferry Plan. Bd., 208 N.J. 95, 102 (2011) (noting that the burden on a use variance applicant is "not insignificant").

To obtain a use variance an applicant must satisfy both the so-called affirmative and negative criteria of the MLUL. See, e.g., New Brunswick Cell. Tel. Co. v. Bor. of S. Plainfield Bd. of Adj., 160 N.J. 1, 6 (1999). Under the affirmative criteria, an applicant must show special reasons meriting a use variance. N.J.S.A. 40:55D-70(d)(1). As the New Jersey Supreme 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 circumstances in which such special reasons may be found:

(1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility, see Sica v. Bd. of [Adj.] of Wall, 127 N.J. 152, 159-60, (1992); (2) where the property owner would suffer "undue hardship" if compelled to use

the property in conformity with the permitted uses in the zone, see Medici v. BPR Co., 107 N.J. 1, 17 n.9, (1987); and (3) where the use would serve the general welfare because "the proposed site is particularly suitable for the proposed use." [Smart SMR v. Bor. of Fair Lawn Bd. of [Adj.], 152 N.J. 309, 323 (1998)] (quoting Medici, supra, 107 N.J. at 4).

[Nuckel, supra, 208 N.J. at 102 (quoting Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adj., 388 N.J. Super. 67, 76 (App. Div. 2006)).]

Plaintiffs' arguments revolve around the third situation, that is, is the proposed site particularly suitable for the proposed use?

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, as a proponent of a non-inherently beneficial commercial use, plaintiffs must surmount an additional threshold. Since 1987, such an applicant is obliged to 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, supra, 107 N.J. at 21. This enhanced quality of proof must "reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Ibid. It is a formidable obstacle for any applicant.

Particular suitability for a use variance can be shown

where (1) "the use is one that would fill a need in the general

community," (2) "there is no other viable location," or (3) "the

property itself is particularly well fitted for the use either

in terms of its location, topography or shape." Funeral Home

Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 210 (App. Div.

1999) (reversing a board of adjustment's grant of a use variance); see also Kinderkamack Rd. Assocs., supra, 421 N.J. Super. at 21 (affirming a board of adjustment's denial of a use variance); Saddle Brook Realty, LLC, supra, 388 N.J. Super. at 76 (reversing a board of adjustment's grant of a use variance).

In light of the stringent Medici standards repeated and reinforced in Kinderkamack Road Associates, Saddle Brook Realty, LLC, and Funeral Home Management, Inc., the Board's reasons for denial of plaintiffs' application find ample support in the MLUL. Here, the focus of particularized site suitability was the historical use of the subject property. That history, however, dates back to only 1991. The record does not indicate whether that use was non-conforming, see N.J.S.A. 40:55D-68, or illegal. Plaintiffs' bootstrap argument is wholly insufficient as a matter of law to prove site suitability. Nothing that DeNiscia attested to remotely demonstrated that (1) the storage of trucks would fill a need in the general community; (2) there was no other viable location for such use; or (3) the land's topography, location, or shape was well fitted for such uses. Regardless of whether the project could be made attractive, compatible with its downtown setting, or even profitable to the community or its owners, plaintiffs failed to demonstrate that "'the particular site . . . must be the location for the variance.'" Funeral Home Mgmt., supra, 319 N.J. Super. at 209 (quoting Fobe Assocs. v. Mayor of Demarest, 74 N.J. 519, 534 (1977) (emphasis in original)).

We conclude that the Law Division properly held that plaintiffs failed to establish the affirmative criteria that special reasons existed under N.J.S.A. 40:55D-70(d)(1) and thus they did not sustain the requisite burden of proof before the Board.3

1 The caption of the case and the briefs submitted by the parties refer to defendant as the Bound Brook Planning Board. However, the Board's resolution in this case indicates that it calls itself the Borough of Bound Brook Land Use Board, presumably to vouchsafe the unicameral nature of its jurisdiction. See N.J.S.A. 40:55D-25(c); cf. Cox & Koenig, New Jersey Zoning & Land Use Administration 2-8 (2012).

2 At the Board hearing, DeNiscia referred to N.J.S.A. 40:55D-2(g) as a basis for approval, stating that "[subsection (g)] relates to locating a use in an appropriate area, and . . . this is an appropriate site and area for this use." The Board's resolution interpreted DeNiscia's testimony as relating only to subsections (a) and (h), finding, however, that "Mr. DeNiscia offered no detailed testimony in support of his claims under 2a and 2h."

3 Medici's enhanced quality of proof was also not satisfied. These proofs may be met, for example, by evidence that "the character of a community has changed substantially since the adoption of the master plan" or that "a variance for a use omitted from the ordinance is not incompatible with the intent and purpose of the governing body when the ordinance was passed." Medici, supra, 107 N.J. at 21.