E.T. COMLY, II v. ZONING BOARD OF ADJUSTMENT OF TOWNSHIP OF WEST AMWELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2935-04T32935-04T3

E.T. COMLY, II,

Plaintiff-Respondent,

v.

ZONING BOARD OF ADJUSTMENT

OF TOWNSHIP OF WEST AMWELL,

Defendant-Respondent,

and

CHRISTOPHER AND AUDREY MAEST,

Defendants-Appellants.

__________________________________________

 

Argued December 21, 2005 - Decided January 23, 2006

Before Judges Conley and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-1426-04.

Raymond S. Papperman argued the cause for appellants Christopher and Audrey Maest (Stark & Stark, attorneys; Mr. Papperman, of counsel and on the brief).

William T. Dudeck argued the cause for respondent E.T. Comly, II (Eastburn and Gray, attorneys; Mr. Dudeck, of counsel and on the brief).

Stewart P. Palilonis argued the cause for respondent Zoning Board of Adjustment of Township of West Amwell.

PER CURIAM

Defendants Christopher and Audrey Maest appeal final judgment reversing an N.J.S.A. 40:55D-70d use variance. We affirm.

The Maests obtained the use variance from the West Amwell Zoning Board of Adjustment to construct a 2000 square foot, two-story, free-standing building to house their business, the Clay Target Sports, Inc. The business engages in the sale, manufacture, distribution, servicing and repair of "high end" shotguns. The subject property comprises approximately five and one-half acres and is located in an R-2 residential zone, a low-density zone which permits single-family dwellings on a minimum of two acres, as well as agricultural and certain conditional uses, such as schools, churches, parks and home occupations as defined by the ordinance.

Pursuant to N.J.S.A. 40:55D-70(d), a board of adjustment has the power to "[i]n particular cases for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: (1) a use or principal structure in a district restricted against such use or principal structure . . ., (3) deviation from a specification or standard pursuant to [N.J.S.A. 40:55D-67] pertaining solely to a conditional use . . . ." The same section of the Act also provides in part:

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.

[Ibid.]

These statutory provisions set forth what are routinely referred to as the positive and negative criteria that must be shown to obtain a use variance. It is the applicant's burden to establish those criteria. Smart SMR of New York, Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 323 (1998); Scholastic Bus Co. Inc. v. Zoning Bd. of Borough of Fair Lawn, 326 N.J. Super. 49, 55-56 (App. Div. 1999).

A zoning board's decision is presumed to be valid, and may be reversed only if arbitrary, capricious or unreasonable. New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 160 N.J. 1, 14 (1999). Judicial review is limited to determining whether the board's decision "is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Smart SMR of New York, Inc. v. Borough of Fair Lawn Bd. of Adj., supra, 152 N.J. at 327. We recognize that zoning boards possess "peculiar knowledge of local conditions" which entitle such boards to wide latitude in the exercise of discretion. New York SMSA v. Bd. of Adj. of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). However, greater deference is afforded a board's denial of a variance than to its decision to grant one. Meszaros v. Planning Bd. of City of S. Amboy, 371 N.J. Super. 134, 138 (App. Div. 2004). This is because variances "tend to impair sound zoning," Kohl v. Mayor & Council of Borough of Fair Lawn, 50 N.J. 268, 275 (1967), as they are inconsistent with the policy of the Municipal Land Use Law (MLUL) that "favor[s] comprehensive planning by ordinance rather than variances," and should be granted for "exceptional" cases only. Medical Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adj., 343 N.J. Super. 177, 199 (App. Div. 2001).

It is not clear from either the variance application or the Board's resolution as to whether the grant was for a d(1) or d(3) variance. In reversing the Board, the trial judge discussed both, as will we.

If viewed as a d(1) variance, the positive criteria therefor requires a showing that "the proposed use promotes the general welfare and is particularly suited for the site." New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., supra, 160 N.J. at 14. "A commercial use [in a residential zone] serves the general welfare and thereby satisfies the positive criteria if the use is particularly suited for the proposed site." Smart SMR of New York, Inc. v. Borough of Fair Lawn Bd. of Adj., supra, 152 N.J. at 331-32.

Where, as here, an inherently beneficial use is not at issue, to demonstrate that property is particularly suited for the proposed nonconforming use for the purposes of a d(1) variance, the applicant must show the need for the use at that particular location. See New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., supra, 160 N.J. at 14. Peculiar suitability may exist where "the use is one that would fill a need in the general community, where there is no other viable location, and where 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).

Moreover, where an inherently beneficial use is not at issue, a d(1) use variance applicant must prove not only "that the variance can be granted 'without substantial detriment to the public good,'" but also "must demonstrate through an 'enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.'" New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., supra, 160 N.J. at 6 (quoting Smart SMR of New York, Inc. v. Borough of Fair Lawn Bd. of Adj., supra, 152 N.J. at 323). "The applicant's proofs and the board's findings that the variance will not 'substantially impair the intent and purpose of the zone plan and zoning ordinance,' N.J.S.A. 40:55D-70(d), must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Medici v. BPR Co., supra, 107 N.J. at 21. See Victor Recchia Residential Constr., Inc. v. Zoning Bd. of Adj. of Twp. of Cedar Grove, 338 N.J. Super. 242, 253-54 (App. Div. 2001); Funeral Home Mgmt., Inc. v. Basralian, supra, 319 N.J. Super. at 213-15. Furthermore, the Court cautioned:

The board's resolution should contain sufficient findings, based on the proofs submitted, to satisfy a reviewing court that the board has analyzed the master plan and zoning ordinance, and determined that the governing body's prohibition of the proposed use is not incompatible with a grant of the variance. If the board cannot reach such a conclusion, it should deny the variance. To the extent this requirement narrows the discretion of boards of adjustment to grant use variances for uses intentionally and persistently excluded from the zoning ordinance by the governing body, we believe it accurately reflects the strong legislative policy favoring zoning by ordinance rather than by variance.

[Medici v. BPR Co., supra, 107 N.J. at 23.]

In contrast, the proofs required for a d(3) conditional use variance are not as stringent. Coventry Square, Inc. v. Westwood Zoning Bd. of Adj., 138 N.J. 285, 287 (1994). This is because the use itself is not prohibited but rather the deviation is only as to the conditions imposed upon such use. Thus, the Court concluded in Coventry:

We hold that the proof of special reasons that must be adduced by an applicant for a "d" variance from one or more conditions imposed by ordinance in respect of a conditional use shall be proof sufficient to satisfy the board of adjustment that the site proposed for the conditional use, in the context of the applicant's proposed site plan, continues to be an appropriate site for the conditional use notwithstanding the deviations from one or more conditions imposed by the ordinance. That standard of proof will focus both the applicant's and the board's attention on the specific deviation from conditions imposed by the ordinance, and will permit the board to find special reasons to support the variance only if it is persuaded that the noncompliance with conditions does not affect the suitability of the site for the conditional use. Thus, a conditional use variance applicant must show that the site will accommodate the problems associated with the use even though the proposal does not comply with the conditions the ordinance established to address those problems.

[Id. at 298-99.]

As to the negative criteria, the Court concluded:

The board of adjustment must evaluate the impact of the proposed [conditional] use variance upon the adjacent properties and determine whether or not it will cause such damage to the character of the neighborhood as to constitute "'substantial detriment to the public good.'" . . . In respect of the second prong, that the variance will not "substantially impair the intent and purpose of the zone plan and zoning ordinance," N.J.S.A. 40:55D-70(d), the board of adjustment must be satisfied that the grant of the conditional use variance for the specific project at the designated site is reconcilable with the municipality's legislative determination that the condition should be imposed on all conditional uses in that zoning district.

[Id. at 299 (citations omitted).]

Here, in granting the variance, the Board concluded in pertinent part:

[I]t has been established that home occupations are a permitted use; the proposed deviations from the standards are minimal in nature and within the character of what was intended by the Zoning Ordinance; and will promote the purposes of the Municipal Land Use Law in providing sufficient space in a suitable location for a rather unique use.

The variance, then, seemingly was granted as a d(3) conditional use variance for a "home occupation," a permitted conditional use in the R-2 zone.

Such a use is defined by the zoning ordinance thusly:

A business, profession, occupation, or trade conducted for gain or support and located entirely within a residential building, which use is accessory, incidental, and secondary to the use of the building for dwelling purposes and does not change the essential residential character or appearance of such building.

[Emphasis added.]

In addition to this definition, the ordinance imposes the following eight conditions:

a. Not more than twenty-five (25%) percent of the gross floor area of the dwelling, not including the basement, cellar or attic, or not more than 500 square feet, whichever is less, is used for the home occupation.

b. There is no visible exterior evidence of the conduct of the occupation and the structure maintains a residential appearance.

c. No sales are to be made on the premises.

d. No part of the home occupation is conducted in any accessory building.

e. Not more than one person who is not both a member of the family and a resident of the dwelling may be employed.

f. No traffic may be generated by the occupation beyond that normally generated by the use of the premises as a single family dwelling.

g. No machinery, equipment or process may be used which creates noise, vibration, glare, fumes, odors or electrical inference detachable at the property lines, or which causes any interference with radio or television reception by neighboring residences or fluctuation in the line voltages beyond the premises.

h. No goods, chattels, materials, supplies or items of any kind shall be delivered either to or from the premises in connection with a home occupation, except in passenger cars or vans with a maximum length of twenty feet.

And, as discussed by the trial judge:

The MLUL itself does not define the term "home occupation." Case law has placed some outer limits on the meaning of the term. See Adams v. DelMonte, 309 N.J. Super. [572,] 583-86 [(App. Div. 1998),] (septic tank cleaning business involving 3,000 gallon trucks arriving and departing each day bears no resemblance to types of activities traditionally recognized as home occupations); Schofield v. Zoning Bd. of Adj. of Dennis, 169 N.J. Super. 150 (App. Div. 1979) (small day-care center for 12-18 children was not a home occupation). The intensity of the business activity may disqualify it as a permitted home occupation.

In addition, the home occupation must be "incidental" to the principal use of the property as a residence. "Incidental" means that the home occupation must be "subordinate and minor in significance" and bear a "reasonable relationship with the primary use." Adams v. DelMonte, [supra,] 309 N.J. Super. at 584.

The term "home occupation" is defined by the West Amwell Township ordinance consistently with these limitations, and the ordinance adds additional restrictions. It explicitly requires by definition that a home occupation be "located entirely within a residential building, which use is accessory, incidental, and secondary to the use of the building for dwelling purposes and does not change the essential residential character or appearance of such building." Obviously, the [applicants'] proposal to conduct their business in an accessory building does not fit this definition.

Additionally, in permitting home occupations conditionally, the West Amwell Township Committee again said expressly in its zoning ordinance quoted earlier, that "no part of the home occupation [may be] conducted in any accessory building" thus emphasizing the character of a home occupation as one that is actually conducted in the home and not in some other building. In fact, the ordinance prohibits even partial conducting of the business in an accessory building. Nevertheless, the issue here is not whether the Board has the power to allow deviation from the strict prohibition of any use of an accessory building. The relevant deviation in the . . . proposal is that their dwelling itself will not be used for the "home occupation" at all.

Although in this case no evidence was presented of the Township Committee's purpose in restricting home occupations to the dwelling itself, the court can deduce that such an ordinance is designed to assure that the business use is only an "accessory, incidental, and secondary" use of the property. The Township Committee could have concluded that locating the business in an accessory building can potentially expand the scope of the business activity. In fact, [the applicant] testified in this case that he wished to enhance its professionalism. . . . Those motivations are not objectionable in themselves, but they underscore the risk that the Township Committee may have sought to minimize - expansion of the business activity through separation from the home and enhancement of its professional, as opposed to residential, character.

Also, the restriction of home occupation to the dwelling may make it more likely that the business activity will be conducted in a way conducive to residential needs. A person who has to live in the same building as his occupation may be less inclined to allow the business activity to dominate or match the essentially residential purpose and nature of the building. That is, the proprietor will have personal motivations to avoid excessive noise, fumes, odors, and foot-traffic.

Moreover, the Township's ordinance limits the space used for the home occupation to not more than 25% of the gross floor area of the dwelling or 500 square feet, whichever is less. This limitation, too, is designed to maintain an incidental and secondary business use of the home rather than a dominant or equal intensity.

These provisions demonstrate a legislative intent to prevent the designation of an activity as a "home occupation" from allowing dual principal uses of property, that is, as both residential and commercial. Cf. Charlie Brown of Chatham [, Inc.] v. Bd. of Adj., 202 N.J. Super. [312, 317-18 (App. Div. 1985)] (variance for proposed accessory use of commercial property for residential purposes, i.e., sleeping quarters, properly rejected).

In this case, the [applicants] propose to use a separate building one-half the size of the residence for operation of their business. Their proposal does not come within the definition of home occupation in the West Amwell zoning ordinance. The deviation is not insignificant. Because the business would not be conducted in the proposed dwelling itself, as required by the Township's definition of a home occupation, the proposed use is not a permitted conditional use of the property.

Even if a departure from the express terms of the definitional ordinance is not fatal to classifying a proposed use as a home occupation, the . . . proposal requires deviation from at least five of the eight listed specifications for a home occupation. Those are: 1) the size of the business use, 2,000 as opposed to a maximum 500 square feet; 2) prohibition of sales on the premises; 3) use of an accessory building; 4) permitting more than one unrelated family member in the future as an employer; and 5) goods and materials being delivered by vehicles other than passenger cars or vans of maximum 20 feet in length. Each of these conditions is intended to limit the scope of the business activity and to maintain the residential character of the neighborhood. Although deviation from one or more specifications is precisely what subsection d(3) of the MLUL contemplates, when deviation is sought for a majority of the specifications, the proposal loses its essential basis as a home occupation as defined and specified by ordinance.

Thus, the trial judge ultimately concluded that a d(3) variance was neither legally nor factually justified by the record and the Board's resolution:

Here, the size of the business use is four times that permitted. It is to be entirely conducted in an accessory building and not at all in the dwelling itself, directly contrary to the provisions of two ordinance sections. In-person sales, although a limited number, would occur on the premises. More than one non-resident could be employed. Delivery of business items would occur on a daily basis with UPS or Federal Express trucks, which may not meet the standards specified in the ordinance. These deviations as a whole lead to the conclusion that the business would be substantially more expansive and intense than contemplated by the restrictions in the Township ordinance.

In applying the standard for conditional use variance established in Coventry Square, the court is mindful that the deviations in that case all involved dimensional requirements for the permitted conditional use, namely, side and backyard setbacks and the location of parking for a permitted apartment building. The applicant in that case had shown that application of the setback requirements to its particular property was unreasonable and that its proposal actually enhanced the purposes of some of those requirements in, for example, providing adequate buffers with neighboring properties. In this case, the deviations are not merely dimensional. Furthermore, the [applicants] cannot argue that their proposal goes beyond the purposes of the Township ordinance in protecting the character of the neighborhood.

The proposed use of the [applicants'] property would be significantly more intense than the kinds of home occupations that are permitted uses in West Amwell Township. The Board's resolution does not show adequate consideration of the deviations in the aggregate and their effect on the residential character of the neighborhood that the governing body sought to maintain through strict restrictions on home occupations.

More important, . . . the Board's resolution does not adequately address the negative criteria with respect to compatibility with the zone plan and zoning ordinance. The Board failed to conclude as required that "the grant of the conditional use variance for the specific project at the designated site is reconcilable with the municipality's legislative determination that the condition should be imposed on all conditional uses in that zoning district." Coventry Square, 138 N.J. at 299. The Board's resolution only says that the proposal is compatible because home occupations are permitted. It does not say, as it must to sustain the variance, that the [applicants'] proposed deviations form the standards for home occupations are compatible with West Amwell Township's zoning ordinance determining that such standards should apply to all home occupations.

Even if viewed as a d(1) variance, the result is the same. As the trial judge observed:

Nothing in the evidentiary record shows that the [applicants'] property is particularly suited for the operation of a shotgun servicing and sales business. Like other properties in the vicinity, it is simply a residential lot suitable for a home. The testimony of the . . . expert that the site is particularly suitable for a home occupation because it will contain a home is hardly helpful. The Board's resolution does not include a conclusion that special reasons have been proven because of the particular suitability of the lot for the proposed use.

As to the negative criteria that must also be satisfied, the Board's resolution concludes that the "variances may be granted without substantial detriment to the public good, since there should be minimal, if any, offsite impacts." This court will accept that conclusion based on the record it has reviewed. The Board was also required to find, however, that the variance would not "substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70d. Part of the board's resolution states:

b. Applicant has established that the requested variances may be granted without substantial impairment to the zone plan, since the proposed use is within the character of a home occupation, which is a permitted use.

The Board's conclusion in that regard is based on an erroneous finding that the [applicants'] proposal was in the nature of a home occupation. As already said, their proposal does not come within the Township's definition of home occupation. If that finding is excluded from the Board's conclusion, then the resolution merely recites the language of the statute in conclusory fashion. The Supreme Court admonished in Medici v. BPR Co., that the negative criteria of the statute are not satisfied with conclusory findings. 107 N.J. at 22-23. In Medici, the Court said:

The board's resolution should contain sufficient findings, based on the proofs submitted, to satisfy a reviewing court that the board has analyzed the master plan and zoning ordinance, and determined that the governing body's prohibition of the proposed use is not incompatible with a grant of the variance. If the board cannot reach such a conclusion, it should deny the variance.

[Id. at 23.]

Here, no evidence in the record shows consideration of the Township's master plan, or consideration of the intent of the governing body in restricting home occupations to the principal residential dwelling, and no more than 500 square feet of space. This court's consideration of the home occupation ordinance leads to the conclusion that the proposed use is not compatible with the legislative intent of the governing body . . . .

On appeal, plaintiff contends:

THE TRIAL COURT ERRED IN OVERTURNING THE APPROVAL GRANTED BY THE ZONING BOARD, WHICH APPROVAL WAS PROPER AND MUST BE UPHELD.

A. ON REVIEW, A COURT MAY NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE ZONING BOARD, RATHER IT MUST DEFER TO THE SOUND DISCRETION OF THE ZONING BOARD.

B. THE APPLICANT SUSTAINED ITS BURDEN OF PROOF AND THE ZBA PROPERLY GRANTED APPROVAL OF THE PROPOSED USE, APPLYING STANDARDS APPLICABLE TO A VARIANCE FOR DEVIATIONS FROM CONDITIONS OF A CONDITIONAL USE.

C. THE MAESTS MET THEIR BURDEN OF PROOF AND THE ZBA PROPERLY GRANTED APPROVAL TO THE APPLICATION FOR A USE VARIANCE, EVEN IF CONSIDERED A NON-PERMITTED USE.

We have considered these contentions in light of the record and applicable law. We are convinced they are of insufficient merit to warrant further opinion. R. 2:11-3(e)(A),(E).

 
Affirmed for the reasons set forth by Judge Victor Ashrafi in his January 6, 2005, written decision.

Alternatively, special reasons for a nonconforming commercial use may be shown if the applicant establishes "that undue hardship exists because the property for which the use variance is sought cannot reasonably be adapted to a conforming use." Stop & Shop Supermarket Co. v. Bd. of Adj. of Twp. of Springfield, 162 N.J. 418, 431 (2000). Undue hardship is not an issue here.

(continued)

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A-2935-04T3

January 23, 2006