METROPOLITAN PLANT EXCHANGE INC. v. R & R TREES L.L.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1630-11T1

METROPOLITAN PLANT EXCHANGE,

INC., AND FRANK VASTANO,

Plaintiffs-Appellants,

v.

R & R TREES, L.L.C., AND FORT LEE

ZONING BOARD OF ADJUSTMENT,

Defendants-Respondents.

_____________________________________________

December 17, 2012

Argued August 6, 2012 - Decided

Before Judges Ashrafi and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-11237-10.

Christos J. Diktas argued the cause for appellants (Diktas Schandler Gillen, P.C., attorneys; Mr. Diktas and Christine Gillen, on the brief).

Carmine R. Alampi argued the cause for respondent R & R Trees, L.L.C. (Alampi & De Marrais, attorneys; Santo T. Alampi, on the brief).

Joseph R. Mariniello argued the cause for respondent Fort Lee Zoning Board of Adjustment (Mariniello & Mariniello, P.C., attorneys; Mr. Mariniello, on the brief).

PER CURIAM

Plaintiffs Metropolitan Plant Exchange, Inc. (Metropolitan), and Frank Vastano, Metropolitan's sole shareholder, appeal from the October 26, 2011 Law Division order dismissing their complaint in lieu of prerogative writs, which challenged defendant Fort Lee Zoning Board of Adjustment's (the Board) grant of use and bulk variances to defendant R&R Trees, L.L.C. (R&R), to operate a seasonal Christmas tree lot. For the reasons that follow, we affirm.

The record reveals that R&R filed a variance application with the Board on September 9, 2010 seeking to use a portion of a non-conforming commercial use property for seasonal sales of Christmas trees and wreaths for approximately six weeks every year. The proposed site was situated in an R-2 residential zone on a lot containing the non-conforming use, a well-known hot dog eatery, which had a fenced outdoor picnic area used only from April through October. Sales would take place in the outdoor area, which was fifty feet wide and one hundred twenty feet deep. The applicant proposed no permanent site improvements but intended to install temporary overhead lighting, one sign and a sales booth. The site was located on a four-lane main thoroughfare, which hosted a variety of uses, including gas stations, office buildings and restaurants.

On September 28, 2010, the Board heard testimony from the applicant, and no member of the public appeared or objected. The Board then unanimously approved the variance application, subject to a number of conditions limiting the dates and hours of operation and the size of the signage. On October 12, 2010, the Board passed a written resolution, which incorporated by reference all exhibits, documents, and testimony submitted before the Board. In the resolution, the Board found that: the outdoor area is generally used only during the warmer months so its use during the Christmas season would not result in overuse of the property; the property is located on a main road which can accommodate any additional traffic; the proposed use is for six weeks and does not require any permanent improvements; the sale of trees and wreaths is not the type of activity that will create noise and disturbance even at peak hours of operation; and the site has sufficient parking to accommodate the traffic. The Board concluded that the applicant had presented sufficient proof to satisfy both the positive and negative criteria required for granting the variance.

Plaintiff filed an action in lieu of prerogative writs in Superior Court, Law Division, to set aside the Board's decision, alleging that R&R failed to meet its burden of proof and that the Board's approval was contrary to the Municipal Land Use Law (MLUL). N.J.S.A. 40:55D-1 to -136. Judge Joseph S. Conte reviewed the record from the Board hearing and observed that the Board found that the proposed use advanced two purposes of the MLUL, N.J.S.A. 40:55D-2(a) and (m). He determined that the applicant had met its heightened burden of proof:

On the positive criteria, R&R presented sufficient evidence that the general welfare is promoted, as the site is particularly suited for the proposed use. Although the plot is located in an R-2 residential zone, the surrounding area consists of mixed uses, including gas stations, office buildings, and restaurants. Permitting the use is an efficient use of land because the outdoor area is not used during the proposed 6 weeks of operation, and there will be no over use of the property.

For the negative criteria, R&R sufficiently established that there will be no substantial detriment to the public good and the use will not substantially impair the intent and purpose of the Zone Plan and Zoning Ordinance. The [Board] reasonably grounded its decision on the temporary six week duration of the proposed retail business and the fact that the aesthetics of the surrounding area will not be adversely affected. Considering no permanent improvements will be made to the property, the benefits to the property and surrounding area outweigh any detriment.

Consequently, Judge Conte found that the Board did not act arbitrarily, capriciously or unreasonably, and dismissed the complaint. This appeal followed.

On appeal, plaintiffs contend that the Board's approval of the variance was arbitrary and capricious because the record did not contain evidence supporting the requisite statutory criteria. We disagree.

In reviewing a zoning board's decision, we are bound by the same standard as the trial court. Grubbs v. Slothower, 389 N.J. Super. 377, 382 (App. Div. 2007). Decisions of zoning boards to grant or deny applications constitute quasi-judicial actions of municipal administrative agencies, Willoughby v. Planning Bd. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997), and they are presumed valid. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002). Zoning boards "must be allowed wide latitude in their delegated discretion" because of their special knowledge of local conditions. Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005).

A municipal board's fact-finding should control if supported by substantial evidence in the record, but a court of law is not bound by the board's determination on legal matters. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). Nevertheless, due to its thorough familiarity with local conditions and the community's characteristics, courts usually accord deference to a board's interpretation of its zoning ordinance. Grubbs, supra, 389 N.J. Super. at 382. For this reason, a board's decision is presumed to be valid and will only be set aside if it is arbitrary, capricious or unreasonable. Berkeley Square Ass'n, Inc. v. Zoning Bd. of Adjustment of Trenton, 410 N.J. Super. 255, 263 (App. Div. 2009), certif. denied, 202 N.J. 347 (2010). The burden to prove arbitrary and capricious action is always on the plaintiff. Cell S. of N.J., supra, 172 N.J. at 81-82. We owe less deference, however, to the grant of a variance than its denial. See Medici v. BPR Co., 107 N.J. 1, 21-22 (1987).

The MLUL authorizes zoning boards to grant use variances where the applicant shows that the variance "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." N.J.S.A. 40:55D-70. The grant of a use variance under N.J.S.A. 40:55D-70(d) "requires proof of both positive and negative criteria." Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 156 (1992).

With respect to the positive criteria, where, as here, the desired use is not inherently beneficial to the public good, the applicant must show "special reasons" why the variance should be granted. Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 386 (1990). Such special reasons may include, among other things, the promotion of health and safety, the prevention of sprawl, and the creation of a desirable visual environment. See ibid. In particular, the applicant must show that the proposed use is "peculiarly fitted to the particular location for which the variance is sought." Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268, 279 (1967) (citations omitted); see also Medici, supra, 107 N.J. at 18.

Additionally, with respect to the negative criteria, the focus is site specific and requires an assessment of the proposed variance's impact on the surrounding properties and consideration of whether it will cause "damage to the character of the neighborhood." Id. at 22 n.12 (quoting Yahnel v. Bd. of Adjustment of Jamesburg, 79 N.J. Super. 509, 519 (App. Div.), certif. denied, 41 N.J. 116 (1963)). The potential benefits must preponderate over that damage in order to weigh against the proposed variance. See Yahnel, supra, 79 N.J. Super. at 519.

Further, applicants seeking a use variance must offer "an enhanced quality of proof . . . 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. Such enhanced proof must "reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Ibid.

Plaintiffs argue that the Board did not hear enough evidence during the short hearing to enable it to determine the positive or negative criteria. In particular, they contend that the applicant was required, but failed, to demonstrate that there were no other viable locations for the sale of Christmas trees and that the property itself was well fitted for this specific use due to its location or shape. See Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 210 (App. Div. 1999). We do not construe Basralian to mandate this stringent condition for all applicants as this is not a requirement of either N.J.S.A. 40:55D-70(d) or of the controlling law. See Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998) (quoting Medici, supra, 107 N.J. at 4) (simply stating that "to satisfy the positive criteria, an applicant must prove that 'the use promotes the general welfare because the proposed site is particularly suitable for the proposed use'").

During the variance hearing the Board members expressed a thorough familiarity with the general area and with the property in question. In finding both positive and negative criteria were met, they found that the application both promoted the general welfare, as the unused outdoor space in the middle of commercially mixed use area was particularly suited to the proposed use, and resulted in no detriment to the property or surrounding area. Given the level of deference owed to the Board and particularly its knowledge of the characteristics of Fort Lee, see Fallone Props., L.L.C., v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004), we find no basis for disturbing the Board's findings, which have substantial support in the record before us. Further, we find no error in the conclusions reached by Judge Conte and agree that the Board did not act arbitrarily or capriciously in granting the variance.

Affirmed.