BRE/PRIME PROPERTIES, LLC, v. ZONING BOARD OF ADJUSTMENT OF

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2712-06T52712-06T5

BRE/PRIME PROPERTIES, LLC,

a Delaware Limited Liability

Company,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT OF

THE TOWNSHIP OF FAIRFIELD,

Defendant-Respondent.

_______________________________________

 

Argued September 18, 2007 - Decided November 2, 2007

Before Judges Coburn, Fuentes and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No.

L-5209-06.

Steven C. Rother argued the cause for appellant

(Post, Polak, Goodsell, MacNeill & Strauchler,

attorneys; Mr. Rother and Douglas J. Sherman,

on the brief).

Robert J. Martin argued the cause for appellant

(Mr. Martin and Gail H. Fraser, on the brief).

PER CURIAM

Plaintiff BRE/Prime Properties, LLC appeals from the final judgment of the Law Division affirming the decision of the Zoning Board of Adjustment of the Township of Fairfield (Board) which denied use variance relief pursuant to N.J.S.A. 40:55D-70(d)(2) and (d)(4), as well as ancillary bulk, or dimensional variances and minor subdivision approval.

This case arose after plaintiff applied to the Board for variance relief and minor subdivision approval regarding property that it owned. The lot is fully developed containing two buildings connected only by a covered pedestrian walkway. The one structure, a preexisting nonconforming use, is a five story hotel with a restaurant. The other structure, an office building, is a conforming use on the property.

The new subdivision would divide the existing lot into two lots. The division was to cut across the shared pedestrian walkway connecting the two structures. The new subdivision would allow each subdivision to be utilized in its designed use. Plaintiff concedes that the driving force behind the subdivision is to make the existing property more marketable, by permitting the two preexisting businesses (hotel and office building), to be sold separately. Thus, plaintiff's application is intended to maximize the economic potential of this property.

The current floor area ratio (FAR) on the existing lot is nonconforming. After the proposed subdivision, both lots would still have a nonconforming FAR.

At the conclusion of plaintiff's presentation, the Board considered a resolution approving the application. Four members voted in favor of approval; three voted not to approve the application. Having failed to garner the required minimum of five votes to grant a "d" variance, the Board declared the application denied. N.J.S.A. 40:55D-70(d)(2), (d)(4). The Board thereafter adopted a resolution memorializing its findings of fact and conclusions of law in support of the statutory denial. On plaintiff's appeal by way of an action in lieu of prerogative writs, the Law Division affirmed the decision of the Board.

After reviewing the record before us, and in light of prevailing legal standards, we affirm substantially for the reasons expressed by Judge Winard in his oral opinion delivered from the bench on January 4, 2007. We add only the following brief comments.

At the hearing before the Board, plaintiff presented three witnesses: Julius Szalay, a certified engineer and surveyor; Glenn Alba, principal of Blackstone Group, the owner of plaintiff; and Peter G. Steck, the planner. Szalay described the subdivision "as a financial subdivision of the property." He stated, "what happens is the office building will then be on its own separate lot and all the existing access driveways, parking, utilities that are servicing this one single building on the property, all have cross-access easements to allow the site to continue to function as it is."

In his testimony before the Board, Blackstone Group principal Alba confirmed that: "We're looking simply for the subdivision in the sense that we're no longer occupying a significant portion of this building . . . . [W]e're now only operating on one floor of this building. We're looking for a subdivision today so that the office building will become a little bit more marketable, we can try and find more tenants, and we can put it to a higher and better use." He added: "We're trying to endeavor to give ourselves the flexibility of having that availability to bring in a larger client that may want the entire building for themselves." When asked if that reasoning "predicated the whole thing[,]" Alba responded: "Yes."

Steck's testimony described the various bulk variances required by the subdivision, and addressed the positive/negative criteria analysis required under existing case law. Although he opined that the proposed plan satisfied both requirements, he also emphasized that "the applicant has significant plans to upgrade interiors of both buildings to assist in that marketing approach."

In the resolution memorializing the vote to deny the application, the Board made the following findings:

1. The Board members determined that there were insufficient special reasons presented to grant a use variance, in that the reasons submitted were primarily economic and would not provide a significant benefit to the site or bring it in more conformity with the Zoning Ordinance and Master Plan.

2. The Board members determined that it would be better to retain only one property with the current pre-existing use and bulk variances rather than to create two separate lots, one requiring a use variance, and both requiring numerous and substantial bulk variances.

3. The Board members expressed concern that the proposed division of ownership could cause problems in the functioning of those services that require mutual coordination between the management of the office building and that of the hotel with respect to parking and use of facilities. Although the applicant proposed cross-easements to enable continuation of the sharing of ingress and parking for the separate uses on the two proposed lots, the board members determined that it would be better to maintain one owner so as to ensure that cooperation between the two uses--which would remain substantial in size and extremely close to one another--would continue in an orderly fashion.

4. The Board members determined that the claimed hardship has been self-imposed, in that the applicant and/or its predecessor has previously received approval for the current uses on the property and now seeks to alter those uses simply for its own business reasons.

In reviewing the Board's actions, Judge Winard said:

In this case, again, it's noteworthy that there is a substantial increase in the nonconformity of the preexisting non- conforming use, and the necessity for multiple variances to allow for that nonconformity to intensify its use on a smaller lot.

Certainly it cannot be concluded that the rationale of the board in that regard is unreasonable, arbitrary, capricious or inconsistent with the intent and purpose of the municipal land use law, or as it pertains to these types of prior nonconforming uses and/or the expansion of the same in a impermissible manner [sic].

Now moreover, the granting of this relief does not and hasn't been demonstrated would any way support land use goals set forth in either the master plan, the zoning ordinance of the Township of Fairfield at that particular zone. Obviously, the hotel uses in question have been eliminated as a principal permitted use for many years. And there's no evidence that it can therefore serve the general purposes and goals of the master plan in that particular zone.

. . . .

[Plaintiff] is advancing [economic] difficulties as a special reason to allow for affirmative action by the board on the proposal. And the economic hardship that has been advanced is certainly as a consequence of fact that the hotel operation has been separated from the administrative office by reason of prior transactions that have occurred, thereby rendering the office usage of the building less economical to the applicant . . . .

There's been no showing that [plaintiff's] reason necessarily serves the public and welfare, and, certainly, it does not, in the Court's judgment, reflect conformity with the underlying purpose of the municipal land use law for that particular zone.

The, again, the variance requests are multiple, they're designed to allow for economic flexibility. They do not promote, nor can the Court find from the record, any public benefit, zoning purpose or conformity with municipal land use to satisfy the special reason requirement.

Judicial review of an award of a board of adjustment is limited. A rebuttable presumption arises that the board has properly exercised its discretion. Sprint Spectrum v. Zoning Bd. of Leonia, 360 N.J. Super. 373, 384 (App. Div. 2003) (quoting Smart SMR of N.Y., Inc., v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998)). A reviewing court may not substitute its judgment and will reverse only in cases where the board's actions were arbitrary, capricious or unreasonable. Cell S. of N.J. 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)); House of Fire Christian Church v. Zoning Bd. of Adj. of Clifton, 379 N.J. Super. 515, 533 (App. Div. 2005). There must be substantial evidence in the record to support the board's conclusions in zoning cases. See Cell, 172 N.J. at 89 ("[T]he substantial evidence standard is analogous to the arbitrary, capricious, and unreasonable standard of review traditionally afforded to decisions of zoning boards under the MLUL.").

Further, we have emphasized that "a board's denial of a variance is entitled to greater deference than a decision to grant the variance." Omnipoint Commc'ns, Inc. v. Bd. of Adj. of Bedminster, 337 N.J. Super. 398, 416 (App. Div.), certif. denied, 169 N.J. 607 (2001).

Given this standard of review, we discern no basis to interfere with Judge Winard's well-reasoned analysis and ultimate conclusion.

Affirmed.

(continued)

(continued)

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A-2712-06T5

November 2, 2007