636 INMAN, L.L.C. v. TOWNSHIP OF WOODBRIDGE ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2997-12T3

636 INMAN, L.L.C.,

Plaintiff-Appellant,

v.

TOWNSHIP OF WOODBRIDGE

ZONING BOARD OF

ADJUSTMENT,

Defendant-Respondent.

____________________________________

February 5, 2014

 

Argued December 2, 2013 Decided

 

Before Judges Ashrafi, St. John and Leone.

 

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Docket No.

L-4693-12.

 

John F. Wiley, Jr., argued the cause for

appellant (Law Offices of John F. Wiley,

Jr., attorneys; Mr. Wiley and Larry A.

Lavender, Jr., on the brief).

 

Timothy M. Casey argued the cause for

respondent (Russo & Casey, attorneys; Mr.

Casey, on the brief).

PER CURIAM

Plaintiff 636 Inman, L.L.C., seeks to build a child care center in a residential zoned district where such a facility is not a permitted use under the municipality's zoning ordinance. Defendant Zoning Board of Adjustment denied plaintiff's application for variances and site plan approval. Plaintiff now appeals from the judgment of the Law Division upholding the zoning board's decision. Although we do not agree entirely with the Law Division's reasoning, we affirm its judgment.

I.

Plaintiff is the owner of a rectangular vacant lot located at the corner of Inman Avenue and Kimberly Road in Colonia, which is part of Woodbridge Township. The lot is 197 by 200 feet, about 0.9 acres. The property previously contained a single-family home that was demolished. Plaintiff applied to the zoning board for authorization to build an 8,050 square-foot, single-story child daycare facility, designed to accommodate approximately 150 children. Plaintiff needed a use variance pursuant to N.J.S.A. 40:55D-70(d)(1), and also bulk variances pursuant to N.J.S.A. 40:55D-70(c) for impervious and landscape coverage of the lot.

At a public hearing conducted on May 17, 2012, plaintiff presented the testimony of one of its members and three expert witnesses. The zoning board also reviewed reports by the township's professional planner and engineers, the police department, and the fire department. Five local residents testified in opposition to the application.

Plaintiff's licensed professional planner, James Higgins, testified that the property is located in an R-7.5 zone, which permits single-family homes and certain "conditional uses," such as for schools, churches, and public utility facilities. See Woodbridge Twp., N.J., Zoning Ordinance 150-28 (2011). Higgins described the site as within a "transitional area" between residential and commercial uses. Although most of the surrounding area contains single-family houses, a small shopping strip with several retail uses is located on Inman Avenue and across Kimberly Road from plaintiff's property. Higgins testified that the proposed daycare facility would be similar to a school, and that it is an "inherently beneficial" use that meets the requirements for approval in the zoning district other than with respect to the variances sought. He testified there were no substantial detriments to granting the application that outweighed the proposed use and site plan.

Plaintiff's traffic engineer, John Rea, addressed the predicted impact on local traffic and the proposed facility's parking lot requirements and plans. He testified that the predicted number of daycare drop-offs and pick-ups would create an acceptable increase in delayed traffic on Inman Avenue and Kimberly Road.

Regarding the parking lot, Rea testified that the most restrictive ordinance regulations in the township required only twenty-seven parking spaces based on the square footage of the proposed structure, but that plaintiff planned to build a parking lot with forty parking spaces, about twenty of which would be used by employees of the facility. He testified that, for security reasons, parents must accompany their children into and out of the child care center rather than dropping off or picking up children at the door. He calculated the anticipated number of such child drop-offs and pick-ups during peak hours, and he concluded the proposed parking lot was more than sufficient to provide for the needs of the facility. Nevertheless, the zoning board expressed concerns about the configuration and the adequacy of the parking lot, specifically, with respect to the need for parents and children to traverse a busy parking lot when dropping off or picking up children.

Five local residents testified that they opposed the construction of such a facility in their neighborhood. The residents raised concerns about traffic, the impact on the use of their homes, and the absence of any need for another child daycare facility in the township. The objectors testified variously that there were already four or six other child care facilities in the vicinity of plaintiff's property.

The township engineer's report requested additional information about the daily operation of the facility, particularly during peak drop-off and pick-up hours. But plaintiff could not provide details about daily operations because it had not yet secured a tenant to operate the facility. Plaintiff's principal testified that he chose the location because a tenant at another property had expressed an interest in opening a child care facility in that area of Woodbridge. In response to the board's concerns about traffic and parking problems, he testified that he could include lease provisions requiring the tenant to conduct special occasion events off site.

The police and fire department reports were either favorable to plaintiff or raised issues that are not relevant to this appeal.

At the conclusion of the hearing, the zoning board voted five to two to deny the application. The board adopted a detailed eleven-page resolution dated June 21, 2012, setting forth its findings and its reasons for denying the application. In its concluding paragraphs, the resolution stated:

The Board finds, based upon the testimony presented that the application cannot be granted without substantial detriment to the master plan and zoning ordinance of the Township of Woodbridge.

 

It finds the detriments of this application substantially outweigh the benefits which would result from granting the relief sought by the applicant.

 

The resolution recognized that plaintiff had presented an application for an inherently beneficial use, but it stated that the use was not suited for the location of plaintiff's property and was not needed in the community. The resolution also recited the board's finding that detriment to traffic conditions and safety concerns in the parking lot weighed against granting the application.

Plaintiff filed a complaint in lieu of prerogative writs, Rule 4:69, in the Superior Court, Law Division, seeking to reverse the zoning board's decision. The Law Division reviewed the record before the zoning board and the written submissions of the parties, and it heard the oral arguments of counsel. The court issued a written decision and judgment on January 24, 2013, denying relief to plaintiff and dismissing its prerogative writs complaint.

In addition to other reasons for rejecting plaintiff's cause of action, the Law Division stated that plaintiff had failed to prove the need for another child daycare facility in the community. The court further stated that plaintiff had not shown the proposed use was particularly suited to its property. The court concluded that these failures of proof in plaintiff's case were sufficient to negate plaintiff's claim that its proposal was for an inherently beneficial use and to support the zoning board's decision.

On the appeal before us, plaintiff contends that the decisions of the zoning board and the Law Division were based on legal error because both failed to recognize that a child daycare facility is an "inherently beneficial use" under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and consequently, that plaintiff's proposal satisfies the so-called positive criteria for the granting of a use variance. Plaintiff also contends that the zoning board erred in finding detrimental effects purely on the basis of testimony by objecting neighbors that was affirmatively refuted by plaintiff's professional experts. Plaintiff contends that we must reverse the Law Division's judgment because plaintiff satisfied the proof requirements for use and bulk variances.

II.

We exercise plenary review of the judgment of the Law Division in a zoning case such as this because we review the same record as the Law Division did from the municipal zoning board. However, both we and the Law Division must grant substantial deference to the municipal zoning board's decision. Bressman v. Gash, 131 N.J. 517, 529 (1993); D. Lobi Enters. v. Plan./Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009). The decision of a zoning board is presumed to be valid. Cell South of N.J. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002). "A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable." Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965).

The burden is on the challenging party to overcome this highly deferential standard of review. See Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998); Kramer, supra, 45 N.J. at 296. A court must not substitute its own judgment for that of the local board unless there is a clear abuse of discretion. See Cell South, supra, 172 N.J. at 82. As we stated in CBS Outdoor, Inc. v. Borough of Lebanon Planning Board, 414 N.J. Super. 563, 577 (App. Div. 2010), "[e]ven were we to harbor reservations as to the good judgment of a local land use agency's decision, 'there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.'" (quoting Kramer, supra, 45 N.J. at 296-97).

The deferential standard of judicial review, however, does not apply to purely legal questions affecting the zoning board's decision. The court must determine for itself whether the law has been applied correctly. See Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993); Urban v. Plan. Bd. of Manasquan, 238 N.J. Super. 105, 111 (App. Div. 1990), modified, 124 N.J. 651 (1991).

We first consider plaintiff's contention that the zoning board and the Law Division erred as a matter of law because they failed to recognize the proposed use as an inherently beneficial use that is accorded favorable treatment by the MLUL.

The variance statute of the MLUL grants power to a board of adjustment:

d. In particular cases for special reasons, [to] grant a variance to allow departure from [zoning] regulations . . . to permit: (1) a use or principal structure in a district restricted against such use or principal structure . . . .

 

. . . .

 

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.

 

[N.J.S.A 40:55D-70 (emphasis added).]

The "special reasons" requirement for the granting of a "use" or "(d)(1)" variance is also known as the "positive criteria" that the applicant must prove. See Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adj., 388 N.J. Super. 67, 75-76 (App. Div. 2006). The last-quoted paragraph is known as the "negative criteria" of the proofs for the granting of a variance. See Smart SMR, supra, 152 N.J. at 323.

Special reasons, or the positive criteria, may be shown in three ways:

(1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility; (2) where the property owner would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone; and (3) where the use would serve the general welfare because the proposed site is particularly suitable for the proposed use.

 

[Saddle Brook Realty, supra, 388 N.J. Super. at 76 (emphasis added) (internal citations and quotation marks omitted).]

 

In this case, plaintiff did not claim undue hardship or particular suitability of its property as a child care center. It relied on the first alternative, that its proposal pertained to an inherently beneficial use of the property.

"If a proposed use qualifies as an 'inherently beneficial' use, the burden of proof of an applicant for a use variance is 'significantly lessened' with respect to both the positive and negative criteria." Salt & Light Co., Inc. v. Willingboro Twp. Zoning Bd. of Adj., 423 N.J. Super. 282, 287 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012). An inherently beneficial use is presumed to satisfy the positive criteria, and it does not have to satisfy an "enhanced quality of proof" for the negative criteria, as set forth in Medici v. BPR Co., 107 N.J. 1, 21-24 (1987). Salt & Light Co., supra, 423 N.J. Super. at 287.

Despite the less demanding standard of proof, a zoning board is not bound to grant a variance for an inherently beneficial use. Rather, the board must balance the benefits and burdens of the requested variance using the following steps as a guide: (1) "identify the public interest at stake"; (2) "identify the detrimental effect that will ensue from the grant of the variance"; (3) "reduce the detrimental effect by imposing reasonable conditions on the use"; and (4) "weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good." Sica v. Bd. of Adj. of Wall Twp., 127 N.J. 152, 165-66 (1992). In cases where the "detrimental effects of an inherently beneficial use outweigh the public benefit, a municipality is authorized to deny the requested variance." Stop & Shop Supermarket Co. v. Bd. of Adj. of Springfield, 162 N.J. 418, 430-31 (2000) (citing Sica, supra, 127 N.J. at 166).

In this case, we agree with plaintiff that it proposed an inherently beneficial use of its property, and therefore, its application was entitled to be judged by the less demanding standard of proof that applies in accordance with the Sica balancing guidelines.

The Law Division, however, stated that plaintiff had failed to satisfy the positive criteria of the variance statute because a seventh child care center was not needed in the community. The court also stated that plaintiff's expert planner misled the zoning board by citing N.J.S.A. 40:55D-66.5a in support of a determination that plaintiff's proposed child care center is an inherently beneficial use. The Law Division seemed to conclude, therefore, that plaintiff's application was not entitled to consideration as an inherently beneficial use. We disagree with that conclusion. Plaintiff satisfied the positive criteria of N.J.S.A 40:55D-70(d).

The Law Division correctly concluded that N.J.S.A. 40:55D-66.5a is inapplicable to the facts of this case. Subsection (e) of that statute contains the Legislature's finding that there is a "public interest and a valid public policy . . . to eliminate . . . barriers" for the establishment of "family day care homes in residential neighborhoods." In pursuit of that public policy, the Legislature enacted N.J.S.A. 40:55D-66.5b, which provides that "[f]amily day care homes shall be a permitted use in all residential districts of a municipality." But the term "family day care home" is not applicable to plaintiff's commercially-operated, large child care center. "Family day care home" is specifically cross-referenced in the statute, N.J.S.A. 40:55D-66.5b(d), as meaning "a private residence in which child care services are provided for a fee to no less than three and no more than five children at any one time." N.J.S.A. 30:5B-18(c). In other words, the cited legislation bars local zoning ordinances that prohibit the use of private homes in a residential district to provide child care services for a few children at a time.

But plaintiff need not rely on statutory provisions pertaining to a "family day care home" to establish the status of its proposal as an inherently beneficial use. A primary definitional section of the MLUL expressly includes "child care center" within the definition of the phrase "inherently beneficial use." N.J.S.A. 40:55D-4. The term "child care center" includes plaintiff's proposed commercially-operated facility. Although the Law Division cited N.J.S.A. 40:55D-4, it did not otherwise apply the statute, which is clear on its face. The statute requires that plaintiff's proposed use be viewed as inherently beneficial and that its application be presumptively deemed to satisfy the positive criteria for the granting of a use variance.

Nor did plaintiff have the burden of proving that another child care facility was needed in the community or that its property is particularly suited for use as a child daycare facility. When a proposed land use is deemed inherently beneficial, it is assumed to satisfy the positive criteria, and to serve the purpose of zoning by promoting the general welfare. See Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 386 (1990). Plaintiff need not prove one of the other alternative means of establishing the positive criteria of the variance statute.

The Law Division cited Cox & Koenig, New Jersey Zoning and Land Use Administration 7-4.2 (2012), as supporting its conclusion that a proposed use is not deemed inherently beneficial "where the need that the proposed use meets is already satisfied" in the community. But the cases cited in the treatise in support of that proposition do not pertain to any use that is specifically listed in N.J.S.A. 40:55D-4. They pertain to other types of uses, such as cell communications towers, that are alleged to satisfy the general definition of "inherently beneficial use."1 With respect to an application for a use that the Legislature has expressly included within the meaning of inherently beneficial, the applicant need not show affirmatively either that there is a continuing need for the use in the community or that its property is particularly suited for that use.

Our conclusion does not mean, however, that the degree of need in the community is irrelevant to the board's consideration of the application. The zoning board may, as it did here, consider need in relation to other factors in balancing the competing interests and factors required by Sica, supra, 127 N.J. at 165-66. It can give less weight to the positive criteria established presumptively by the inherently beneficial use if, in fact, similar facilities in the community meet the public's need for that use. The focus must be on identifying the negative criteria and balancing them against the applicant's presumptive satisfaction of the positive criteria.

The zoning board in this case adhered to the procedural directives of Sica. Ibid. Its resolution acknowledged that child daycare centers are an inherently beneficial use, but it determined that plaintiff's property was not appropriate for such a use. The resolution stated:

While the Board acknowledges day care centers have been identified by the courts and legislature as inherently beneficial uses, it also acknowledges the testimony of the applicant's own planner that some locations in residential zones are not appropriate for such uses. Indeed the Board finds if the legislature had intended to permit day care centers in all zones, including residential zones, it could have stated so in the amendment to the MLUL cited by Mr. Higgins; this it did not do, thereby leaving the decision on such applications to the Board.

 

The board also noted the absence of evidence that plaintiff's property was "particularly suited for the [proposed] use." That criterion, however, was not referenced as an independent part of plaintiff's burden of proving special reasons for a (d)(1) variance, but rather in conjunction with evidence pertaining to the negative criteria of the statute and the board's balancing of the competing factors. The board's resolution stated:

The Board finds the site, proposed for this use, is not particularly suited for the use. The Board finds the proposed day care center will have a substantially negative impact on the surrounding existing single family residential homes. This impact will arise from the negative impact on the already heavy traffic on Inman Avenue as well as an increase in traffic on Kimberly Road during the peak hours both in the morning and the evening.

 

Thus, the board's reference to particular suitability of the property was made in the context of balancing the positive and negative factors in accordance with Sica rather than as a rejection of the inherently beneficial status of plaintiff's proposal.

Further with respect to the negative criteria, the board's resolution stated:

The Board also finds the applicant has failed to satisfy the members that the site can operate in a safe and orderly manner. It finds the proposed parking for parents dropping off and pick up children will require parents and children to traverse the parking lot during the peak hours when the traffic will be the heaviest which the Board finds creates an unsafe condition.

Plaintiff challenges these findings, arguing that the board relied on anecdotal and unqualified opinion testimony from the objectors and disregarded professional expert testimony presented by plaintiff. But in assessing the accuracy of factual testimony from members of the public, the board could employ its own general knowledge of conditions in the community. See Kramer, supra, 45 N.J. at 296 ("[P]ublic bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion."). Here, board members commented about their knowledge of busy traffic conditions on Inman Avenue. The board expressed its belief that the proposed daycare center would contribute to the existing congestion during peak driving times in the morning and evening. Plaintiff's own traffic expert gave a grade of D on a scale of A to F to the anticipated wait-time at the intersection of Inman Avenue and Kimberly Road if the child care center were to operate on plaintiff's property. The expert also gave a wait-time grade of C for motorists entering Kimberly Road from Inman Avenue. While the expert considered these grades "acceptable," the board was not persuaded that additional traffic would not have a detrimental effect on the surrounding residential community. See El Shaer v. Plan. Bd. of Lawrence, 249 N.J. Super. 323, 330 (App. Div.), certif. denied, 127 N.J. 546 (1991).

The board also considered the safety of children and parents. It was concerned that the proposed parking lot was not safe for children to cross on foot during the peak drop-off and pick-up times. The board did not act in an unreasonable or arbitrary manner in taking safety concerns into consideration in its overall balancing of the positive and negative factors of the application.

The board was not required to accept the testimony of plaintiff's experts in all respects. Ibid. We are not persuaded by plaintiff's argument that the board "unreasonably" rejected the expert opinions, as in New York SMSA, L.P. v. Board of Adjustment of Weehawken, 370 N.J. Super. 319, 338 (App. Div. 2004), and Cohen v. Board of Adjustment of Rumson, 396 N.J. Super. 608, 617-18 (App. Div. 2007). Unlike those cases, traffic and safe parking issues were matters that the board could assess based on its own general experience and familiarity with local conditions. Our cases have repeatedly stated that we defer to the decisions of municipal zoning officials "because of their peculiar knowledge of local conditions." Jock v. Zoning Bd. of Adj. of Wall Twp., 184 N.J. 562, 597 (2005).

Having made findings of the negative factors, the board balanced those factors against the benefits of the proposed use. It concluded:

Therefore the Board finds the benefits of this application are outweighed significantly by the detriments to the adjoining residential uses. It finds further that the relief sought cannot be granted without substantial detriment to the master plan and zoning ordinance of the Township of Woodbridge.

 

Finally the Board finds approval of the application will have a substantially negative impact on the surrounding residential properties and the health, safety or welfare of the residents of the Township of Woodbridge.

 

The board's balancing of the positive and negative criteria in accordance with Sica was similar to the factual posture of Salt & Light Co., supra, 423 N.J. Super. at 290-92, where we upheld the local board's decision to deny a variance for an inherently beneficial use. We explained in Salt & Light Co. that the Legislature codified the Sica balancing test by means of an amendment to the MLUL, L. 1997, c. 145, 1, but it also established explicitly that an inherently beneficial use must still satisfy the negative criteria of the variance statute. Salt & Light Co., supra, 423 N.J. Super. at 290-91. The courts will not disturb the local zoning board's decision to deny a use variance for an inherently beneficial use unless the board abused the discretionary authority granted to it by the Legislature. Id. at 291-92.

As we did in Salt & Light Co., supra, 423 N.J. Super. at 292, we conclude in this case that the zoning board's "determination was not 'arbitrary, capricious, and unreasonable[,]' and therefore must be sustained." (quoting Sica, supra, 127 N.J. at 166-67).

Affirmed.

1 Generally, N.J.S.A. 40:55D-4 defines "inherently beneficial use" as "a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare."