THEODORE GAYDOS v. MONROE TOWNSHIP BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4633-11T1

THEODORE GAYDOS,

Plaintiff-Respondent,

v.

MONROE TOWNSHIP BOARD OF

ADJUSTMENT; BEA CORPORATION;

SPIRO DRAKE,

Defendants,

and

DR. BEATRICE L. MITTMAN

and GREEK'S CORPORATION,

Defendants-Appellants.

_____________________________

April 24, 2013

 

Submitted March 12, 2013 Decided

 

Before Judges Reisner and Yannotti.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2638-11.

 

Timothy G. Hiskey, attorney for appellants.

 

Hanlon Niemann, P.C., attorneys for respondent (Fredrick P. Niemann and Bonnie M. Wright, on the brief).

PER CURIAM

Defendants, Dr. Beatrice L. Mittman and Greek's Corporation (collectively, the applicant), appeal from an April 18, 2012 order of the Law Division, reversing a decision of the Monroe Township Zoning Board (Board) that granted a use variance and modified previously-imposed conditions on the use of the property. We reverse.

To summarize, the application concerns a dispute between neighbors. It also concerns the Board's approach to the repeated illegal, albeit well-intentioned, conduct of a landowner in building structures that violated the local zoning ordinance. In resolving the issues the application presented, the Board was called upon to resolve credibility disputes and to make policy decisions. We conclude that the Board did both in a manner that was neither arbitrary nor capricious.

In reviewing the Board's decision, it was not the role of the Law Division, nor is it the role of this court, to pass upon the wisdom of the decision, but rather to judge its record support and its consistency with applicable law. Because we conclude that the Law Division gave insufficient deference to the Board's discretion, expertise, and familiarity with local conditions, we reverse the trial court's decision and reinstate the Resolution granting the variance.

 

I.

A.

The property consists of eighty-seven wooded acres, located partly in a residential zone and partly in a flood hazard zone.1 Since approximately 1972, the original owner, Spiro Drake,2 had operated several businesses on the property, including a landscaping and stone business, a golf driving range, and a heliport. The property also included a large playground and an educational facility known as the stone museum. Drake used the property extensively for charitable purposes, including activities for disabled children, developmentally disabled adults, and non-profit community groups such as Girl Scouts and the PTA, and he used the revenues from the other uses to support the charitable activities. Unfortunately, in his zeal to promote the charities, Drake built a number of structures on the premises notably, two banquet halls without prior Board approval. The banquet halls were rented out for weddings and other events, and Drake used that income to underwrite the charitable activities.

In 2004, Drake applied for variance approval, nunc pro tunc, for the non-conforming structures he had built. On August 31, 2004, the Board granted a variance for the facilities, finding that they served a public purpose in supporting a beneficial, charitable use. The resolution stated that "the activities conducted on the site, although mixed, are essentially for the promotion of cultural and recreational benefits for the public good. . . . Those activities date back to 1972 and have been conducted down to the present date. . . . The benefits derived by the public outweigh the detriments as demonstrated by the testimony." The Board further found that the use had a "minimal" impact "upon adjoining properties."

The Resolution barred the owner from constructing any new uses without Board approval. In granting site plan approval, the Board included a prohibition on playing amplified music after 10:00 p.m., and permitted the owner to host only one banquet at a time.

The restriction on playing music after 10:00 p.m. made it increasingly difficult to rent the facilities for weddings and other events, particularly on weekends, and the other revenue-raising businesses on the property did not flourish. Concerned that insufficient money was being raised to support the charitable activities, Drake constructed a "pole barn" which he intended to use for a third banquet facility (Mahal Gardens). He constructed the building without prior Board approval. In 2009, he applied for another variance to legitimize this construction nunc pro tunc, to expand the permitted hours during which music could be played, and to allow the use of more than one banquet hall at a time. The Board denied that application, clearly expressing its impatience with Drake's conduct.

Drake then transferred 100% control of the property to Dr. Mittman, who filed a revised variance application (the new application). The new application proposed to reduce the number of guests that would be permitted to occupy Mahal Gardens at any one time, from 700 to 490, and proposed to reduce the physical size of the Mahal Gardens structure. The application also offered to reduce the existing permitted use of the entire property from 1000 guests at a time to 890.

While the application proposed to expand the hours during which music could be played, from 10:00 p.m. to midnight, it offered a trade-off aimed at reducing the impact of any music on neighboring property owners. To that end, the application required the owner to install a new sound system that would direct the music toward the dance floors and reduce ambient noise levels. The applicant represented that such a system had already been installed, but the application would require that it be retained and used at all times.

At the variance hearing, the applicant's witnesses explained that although the proposal would allow the use of more than one banquet hall at a time, it was unlikely that they would be used for more than one event at a time. The banquet manager explained that she contemplated using the halls to accommodate religious wedding celebrations in which men and women needed to be seated separately, and for events in which one phase (e.g., a cocktail hour) would be held in one hall and the guests would then move to another hall for another portion of the event (such as a formal dinner). The manager also testified that the newly-installed sound system was effective in confining the music to the dance area, so that seated guests could converse comfortably and the noise would not affect the neighboring properties. She testified that the facility required all entertainers to use the facility's sound system rather than using their own speakers.

In her testimony, Dr. Mittman explained that the property was owned by Greek's Corporation, of which she was now the president and sole shareholder. She also testified about the history of difficulties with the neighboring objector, whom she accused of harassment. In particular, she believed that he repeatedly called the police without justification, causing them to arrive and disrupt ongoing events. She also asserted that the neighbor would fire guns on his property while weddings were in progress next door.3 Another witness testified that, due to lack of funds, the stone museum had closed, disappointing many community groups that wanted to bring children to visit the museum.

To address the objector's asserted concerns about drainage issues, the applicant presented testimony from an engineer, Gregory Valesi. He outlined the property's extensive drainage system and provided photographs showing the system and the elevation of the neighboring properties. He explained in detail how the drainage system, as well as the local topography, prevented water from the applicant's property from draining onto the objector's land. He opined that if the neighbor was having drainage or flooding problems, the water could not be coming from the applicant's property.

Drake testified that the banquet facilities had ample parking, in part because the stone yard and the golf driving range had both closed. The area that he formerly used for "[seventy] trucks every day" making deliveries to the stone yard, was now available for banquet parking. He confirmed that the stone yard was a permitted and very intensive use, but he had ceased that use when he closed the stone and gravel business two years earlier. He also explained that the heliport, also an existing and permitted use, was only used occasionally. He explained that the neighbor's property was "500 feet" away from the nearest banquet facility. Drake further explained the property's drainage system in detail, using photographs to illustrate his testimony.

The applicant also presented testimony from Frank Miskovich, a traffic engineer. He explained that there was ample parking, with appropriate ingress, egress and circulation through the property. It would "provide[] really good and safe operation" even if two events were taking place simultaneously. He testified that the premises were already approved for events attended by 1000 people, with only 185 parking spaces. The applicant proposed to increase the required parking spaces to 384, and to decrease the permitted occupancy to 890 persons. He also noted his understanding that in the years of its operation, the facility had never had a "parking issue."

The applicant next presented testimony from James Higgins, a professional planner, who opined that while the applicant was proposing to expand the structures on the site, it was also proposing to reduce the intensity of the use. He also reminded the Board that in 2004, it had already approved the mixed use of the property to promote cultural and recreational benefits for the public good, and had already found that the site was particularly suited for that use. He further opined that the site was "unique" in New Jersey. It was fully accessible to disabled persons, and was

ideal for providing parties and activities for children of all ages, educational activities, recreational activities for disabled children[,] . . . which is the integral part and the main part of this application. The banquet facilities are for the purpose of providing funding for those activities so that the recreational and the educational activities for children can be conducted at no cost to the children that are attending those activities. So it's definitely a public good, which the Board had already found.

 

Higgins also opined that the proposed reduction in the volume of the music would "pretty much cancel . . . out" the proposed extended hours. He concluded that the application presented no "substantial negative impact" to the surrounding neighborhood, and in fact, presented "a substantial improvement over what was previously approved." He further opined that the overall use of the property closely resembled two permitted conditional uses, i.e., "private recreational facilities" and "non-profit social clubs." In that regard, he noted that many non-profit social clubs had banquet facilities on their premises. Accordingly, he concluded that the proposed use presented no "substantial detriment to the zone plan" and was "substantially within the vision of the zone plan for this site." On cross-examination, Higgins confirmed his opinion that the application also satisfied the positive criteria for a (d) variance because it proposed a charitable, beneficial public use and the land was uniquely suitable for the use.

The objector presented Michael Geller, a professional planner and engineer. In his rather brief testimony, Geller agreed that drainage on the applicant's property had been improved but contended that some of the water was draining into ditches and a culvert located on the objector's property. He admitted he did not do a survey to confirm the latter opinion, but relied on a prior survey. Geller testified that the applicant's expert did not properly test the noise controls, but Geller had no personal knowledge concerning the noise levels during events on the site. He further asserted that the application should have been supported by a report on the property's septic system and by an environmental impact statement. Geller also opined that a banquet facility, in itself, was not an inherently beneficial use. He expressed the applicant's general "concern" about "the lack of screening or buffers" and "the traffic."

The objector, Theodore Gaydos, testified that he purchased his property in 1997, when Drake was operating a landscaping business next door. Drake began hosting weddings and parties on the property in 2000 or 2001. Gaydos began complaining about the parties in 2003 or 2004. However, his first dispute with Drake began in 1998, a couple of months after Gaydos moved in, when he objected to Drake allowing water from his land to drain onto Gaydos's property. Gaydos explained that the artificial lakes on Drake's property frequently would overflow onto his property and overwhelm his drainage system. He admitted that, to some extent, Drake had corrected the problem, but Gaydos expressed concern that Drake may not have obtained permits to make those corrections.

Gaydos was also concerned that, because Drake "doesn't stick to anything he says," he would not abide by a midnight deadline for the music. He cited Drake's several municipal court convictions for playing music after 10:00 p.m. According to Gaydos, he made noise complaints even after the new music system was installed, because "the bass" would be audible in his house. On cross-examination, Gaydos admitted that he called in noise complaints at "usually about five to ten [minutes] after ten."

Gaydos also testified that he was concerned about traffic noise, because the exit from the Drake property to Route 613 was close to his property line. Gaydos testified that he was concerned about hearing cars accelerating onto Route 613, which had a fifty-mile-per-hour speed limit. He denied being bothered by noise or traffic from the nearby Raceway Park facility, which closed by 10:00 p.m.

During the public portion of the hearing, eight witnesses testified in favor of the application, citing the importance of the charitable uses of the property and the absence of detrimental impact on the neighborhood. Two former employees, who had worked during weddings on the property, testified that they operated a sound monitoring machine during each event, and the sound was always under the legal limit of fifty decibels. One employee testified that, although Gaydos repeatedly called the police at a few minutes after 10:00 p.m., the police would arrive and express puzzlement, because they could not hear any noise coming from the facility. Another former employee testified that several times she heard multiple gunshots coming from Gaydos's property during afternoon weddings.

A neighbor commented that Gaydos regularly attended races at Raceway Park, where the noise levels were deafening, and that Raceway Park generated a large amount of local traffic late at night. Another neighbor testified that Gaydos's drainage ditch, which Gaydos complained Drake used, was one of a series of old "farm ditches" that were intended to be used in common for drainage by adjoining properties.

B.

In deciding the application, the Board first determined that it was not barred by res judicata. The Board further decided that the new application should be granted, subject to site plan approval. In its Resolution, the Board made the following findings:

1. The subject matter of the within application has a long and extensive history more particularly recited in the prior Resolution adopted by this Board dated January 26, 2010 (Hearing Date) BA-5011-09, which Resolution is incorporated herein.

 

2. The present applicant closely resembles that which was the subject matter of BA-5011-09. It is still proposed to utilize five (5) separate areas of the site where buildings and improvements were illegally constructed. The applicant also again requests that amplified music be permitted to be played beyond 10:00 p.m. to 12:00 p.m. The applicant further maintains that the three (3) banquet facilities are necessary to generate income to enable the charitable uses to which the premises are used for can be supported.

 

3. The applicant maintains that the application is not barred by the doctrine of res judicata by virtue of the fact that the intensity of the use has been reduced, and in effect is a different application. Specifically, it is represented that the stone yard has been discontinued, as well as the driving range, the landscaping area has been reduced in size and more significantly, that Mahal Gardens banquet room has been reduced by 1,740sf and the covered walkway by 1,300sf.

 

4. The occupancy of Mahal Gardens has been reduced from 700 guests to 490. No more than forty-nine (49) tables with ten (10) guests will be permitted. The maximum number of guests for all three banquet facilities will be limited to 890 persons.

 

5. It is proposed to provide 384 parking spaces which the Board's planning consultant found to be adequate.

 

6. One concern of the objector to this application who also was the objector to the previous application pertained to the level of noise and to the playing of amplified music after 10:00 p.m. Testimony was offered by two former employees that they regularly monitored the sound limits and that they never exceed 47db, which is below the maximum permitted to 50db, at 10:00p.m.

 

7. Another concern of the same objector was water drainage. It was contended that the applicant caused water to drain off onto the adjoining premises. The testimony adduced did not support that allegation[] and . . . natural conditions may be the source of his complaints.

 

8. A review of the prior Resolutions clearly reflects that the former owner, Spiro Drake, with whom she has a relationship, did not always observe zoning laws, building codes and other municipal requirements. To reassure the Board that this will never occur again, she has stipulated on the record, that should any violation of the approval occur again, that all present and existing conditions will be forfeited.

 

[B]ased upon the foregoing findings of fact, the Board has arrived at the following conclusions:

 

1. The present application is a significant reduction in the first intensity of the use as presented in the former application.

 

2. The objections to the application are to some degree the result of an apparent dislike between abutting neighbors.

 

3. The sound levels are within the permitted range permitted by the Township.

 

4. The charitable uses of the property over the past years and as proposed for the future are an inherent benefit to the Township and the adjoining areas.

 

C.

Gaydos filed a complaint in lieu of prerogative writs challenging the grant of the variance. In reversing the Board's decision, the trial judge found there was no proof that the character of the neighborhood or the zoning had changed, such that the 2004 conditions were no longer valid or necessary.4 He further found no adequate proof as to what the local situation was in 2004 that required the original conditions limiting the number of banquet halls or the hours during which music could be played. He also found no evidence of a change in the local circumstances on which the limitations were based. He concluded that the financial viability of the charitable activities was not a valid reason to grant the variance. He also concluded there was no other support for the decision to permit the third banquet hall, so as to satisfy the positive and negative criteria applicable to the grant of a (d) variance.

II.

"[P]ublic bodies . . . because of their peculiar knowledge of local conditions, must be allowed wide latitude in the exercise of their delegated discretion." Booth v. Bd. of Adjustment of Rockaway Twp., 50 N.J. 302, 306 (1967). "Judicial review of the decision of a . . . Board of Adjustment ordinarily is limited." Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998). There is a presumption that the zoning board has validly exercised its discretion. Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965). "A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. Even when doubt is entertained as to the wisdom of the action . . . there can be no judicial declaration of invalidity in the absence of clear abuse of discretion . . . ." Id. at 296-97. But, "[v]ariances to allow new nonconforming uses should be granted only sparingly and with great caution since they tend to impair sound zoning." Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 275 (1967).

These standards apply whether a trial court or this court is reviewing the Board's decision. See Bressman v. Gash, 131 N.J. 517, 529 (1993); Kramer, supra, 45 N.J. at 296-97. Therefore, our review of the trial court's decision is de novo.

"N.J.S.A. 40:55D-70(d) governs the applications for 'use' or 'd' variances." Smart SMR, supra, 152 N.J. at 322. A (d)(1) variance permits "a use or principal structure in a district restricted against such use or principal structure." N.J.S.A. 40:55D-70(d)(1). A (d)(2) variance permits "an expansion of a nonconforming use." N.J.S.A. 40:55D-70(d)(2). The grant of a use variance requires the "affirmative vote of at least five members, in the case of a municipal board, or two-thirds of the full authorized membership, in the case of a regional board . . . ." N.J.S.A. 40:55D-70(d). An applicant must "prove both positive and negative criteria to obtain a use variance." Smart SMR, supra, 152 N.J. at 323.

"Under the positive criteria, the applicant must establish 'special reasons' for the grant of the variance." Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 156 (1992). An applicant may prove the positive criteria by demonstrating "that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use." Medici v. BPR Co., 107 N.J. 1, 4 (1987). "[P]eculiar suitability special reasons exist where, generally, 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).

Addressing the negative criteria, the applicant must first establish "that the variance 'can be granted without substantial detriment to the public good.'" Sica, supra, 127 N.J. at 156. "[T]he statutory focus is on the variance's effect on the surrounding properties." Medici, supra, 107 N.J. at 23 n.12. As Medici noted, "[t]he key word here is 'substantially.'" Ibid. (citation and internal quotations omitted). Second, the applicant must demonstrate that it "'will not substantially impair the intent and purpose of the zone plan and zoning ordinance.'" Sica, supra, 127 N.J. at 156. Here, an "enhanced quality of proof" is required, "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." Medici, supra, 107 N.J. at 4.

"If, however, the proposed use is inherently beneficial, an applicant's burden of proof is significantly lessened." Smart SMR, supra, 152 N.J. at 323. "An inherently beneficial use presumptively satisfies the positive criteria[,]" and "satisfaction of the negative criteria does not depend on an enhanced quality of proof." Ibid. Rather, a balancing of the positive and negative criteria is employed. Id. at 324. The applicant must demonstrate 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.'" Ibid. This test is codified in N.J.S.A. 40:55D-70(d).

The enhanced-proof standard likewise does not apply to expansions of existing nonconforming uses, pursuant to N.J.S.A. 40:55D-70(d)(2). Burbridge v. Mine Hill, 117 N.J. 376, 398 (1990) ("Medici's enhanced-proof requirement focused on variances for new uses rather than on expansions of existing uses."); see Saadala v. East Brunswick Zoning Bd. of Adjustment, 412 N.J. Super. 541, 543 (App. Div. 2010). In order to fall under (d)(2) escaping Medici's enhanced quality of proof, the use must meet the definition of "nonconforming." A nonconforming use is a "use or activity which was lawful prior to the adoption, revision or amendment or a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption, revision or amendment." N.J.S.A. 40:55D-5.

"However, a use permitted by variance is . . . not a nonconforming use[,]" nor is it a permitted use. Puleio v. North Brunswick Twp. Bd. of Adjustment, 375 N.J. Super. 613, 619 (App. Div.), certif. denied, 184 N.J. 212 (2005). As Puleio explained:

The statutory definition of a nonconforming use does not include a use that is granted by variance. The definition of a variance does not state that a variance becomes a permitted or conforming use; rather, it just grants permission to depart from the ordinance requirements.

 

. . . .

 

Although a variance has characteristics similar to both a permitted and a nonconforming use, a use permitted by variance is clearly distinct. Therefore, a legal use may fall into one of three different distinct categories: (1) a permitted use one permitted under the zoning ordinance that is conforming in every way; (2) a use granted by variance one not permitted by the terms of the zoning ordinance because it does not conform to the listed permitted uses in the zone, but one that the Municipality has voted upon and allowed despite its non-conformance; and (3) a nonconforming use one that was legal and permitted prior to an ordinance change, but that no longer conforms with the current zoning ordinance.

 

[Id. at 619-21.]

 

We agree with the trial judge that, pursuant to Puleio, the applicant required a (d)(1) use variance. The applicant was granted a variance, nunc pro tunc, for illegal structures pursuant to the 2004 variance; that did not transform the structures into permitted uses in the zone. The applicant sought to build Mahal Gardens, another non-permitted structure, meaning the applicant had to meet the requirements of subsection (d)(1). As Puleio explained, the use does not become permitted merely because it was previously granted by variance, and the applicant must meet the enhanced-proof requirement of Medici. See Puleio, supra, 375 N.J. Super. at 620-21. Further, the applicant sought to remove restrictions created when the original variance was granted.

Although the trial judge correctly determined the type of variance needed, we conclude that he took too narrow a view of the application. In this case the Board had already previously recognized that operating the banquet facilities was an integral part of the charitable use, because it provided the funding for the charitable activities. The Board also previously found, and re-affirmed here, that the property was uniquely suited to this combined use and the proposed use served an important community need. See Funeral Home, supra, 319 N.J. Super. at 210.5

The Board further found as fact that, contrary to the objector's assertions, granting the application would have no negative impact on the surrounding neighborhood. The Board found that expanding the hours during which music could be played would not cause a problem for the neighbors because the new sound system reduced the noise to legally-permitted levels. Thus, although the applicant built a new structure, the evidence supported a finding that any negative impact on the surrounding neighborhood would not be increased and in fact would be decreased due to the improved sound system. The applicant also established that there was increased available parking on the site, and traffic on the local roads would not be negatively affected.

We conclude that these proofs were sufficient to justify granting the application, including the modification of the previously-imposed conditions on the hours during which music could be played and the number of banquet buildings that could be used at one time. See Sherman v. Harvey Cedars Zoning Bd. of Adjustment, 242 N.J. Super. 421, 429-30 (App. Div.), certif. denied, 122 N.J. 404 (1990); Cohen v. Fair Lawn, 85 N.J. Super. 234, 237 (App. Div. 1964).

[T]he courts ought not lightly to interfere with determinations of zoning matters made by municipal boards, especially where the local judgment and discretion do not transgress the statutory limitations and are not based upon arbitrary or unreasonable considerations. We find no excess of power by the [zoning] officials in the instant case and no persuasive argument for classifying their determination as arbitrary or unreasonable.

 

[Id. at 239 (citations omitted).]

 

In this case, the applicant produced ample credible evidence to support the Board's decision. The objector's proofs were minimal, and the Board did not find them credible, noting that his objections appeared motivated by personal animus rather than by evidence of any actual harm. We find no basis to disturb the Board's decision. Accordingly, we reverse the order on appeal and reinstate the Board's decision granting the variance application and site plan approval.

Reversed.

1 According to the applicant's expert witness, the structures at issue are not located within the flood plain.

2 Spiro Drake used the nickname "Greek" (hence, the name "Greek's Corporation"), and was sometimes referred to as Greek in the hearing transcripts. We will refer to him as Drake in this opinion.

3 The neighbor admitted that it was "possible" that he fired a gun on his property during hunting season.

4 The trial judge concurred with the Board that the new application was not barred by res judicata, and that is not an issue on this appeal.

5 While the Board used the phrase "inherent benefit" in approving this application, the applicant satisfied both the positive and negative criteria needed for a (d)(1) variance. See Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 200-04 (App. Div. 2001) (recognizing that a variance application for an inherently beneficial use need not satisfy the positive criteria, and discussing the factors needed to find that an activity is an integral part of an inherently beneficial use).