PAMELA COLLINS v. PRESBYTERIAN CHURCH OF TOMS RIVER
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5003-15T2
PAMELA COLLINS, CATHERINE OSBORNE,
JOSEPHINE FEDAK, LORI OLIVIERI,
ANDREA HUNTSINGER, BARBARA DUNCSAK,
SALIM BESSAIH, and FRANK SICOLI,
Plaintiffs,
and
JEFFREY J. CARR,
Plaintiff-Appellant,
v.
PRESBYTERIAN CHURCH OF TOMS RIVER
and TOWNSHIP OF TOMS RIVER ZONING
BOARD OF ADJUSTMENT,
Defendants-Respondents.
__________________________________________
Argued November 14, 2017 – Decided January 17, 2018
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-2990-
15.
Jeffrey J. Carr, appellant, argued the cause
pro se.
Michael B. York argued the cause for
respondent Presbyterian Church of Toms River
(Novins, York & Jacobus, attorneys; Michael
B. York, on the brief).
Thomas G. Gannon argued the cause for
respondent Township of Toms River Zoning Board
of Adjustment (Hiering, Gannon & McKenna,
attorneys; Thomas G. Gannon, on the brief).
PER CURIAM
Presbyterian Church of Toms River (the Church) submitted an
application for a use variance to the Township of Toms River Zoning
Board of Adjustment (Board), so that it could lease a portion of
its parking lot to an off-site automobile dealership for the
storage or parking of its automobiles. The Board granted the
Church's application.
Thereafter, plaintiffs filed an action in lieu of prerogative
writs in the Law Division challenging the Board's action on various
grounds. The trial court entered an order dated June 6, 2016,
which affirmed the Board's action and dismissed the complaint.
Plaintiff Jeffrey J. Carr appeals from the trial court's order.
For the reasons that follow, we affirm.
I.
The Church's property is located at Hooper Avenue and Chestnut
Street in Toms River Township (Township). The property is within
the Township's O-15 zone, and houses of worship are a conditional
use in the zone. On the property, the Church maintains a house of
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worship, nursery school, pre-kindergarten school, and a facility
called the "House of Hope." The property has a lot with 474
parking spaces, although the Township's Code only requires 268
spaces.
On July 1, 2015, the Church submitted an application to the
Board for a use variance that would allow the Church to lease an
unused portion of its parking lot to an off-site car dealership
for parking and storage of its vehicles. The Church sought
permission to lease 127 of the 474 parking spaces in its lot.
The Church indicated that it intends to use the funds derived
from the lease to subsidize the Church's activities. According to
the application, the parking spaces to be leased are located in
the "least utilized" area of the lot.
On July 2, 2015, the Board's planner drafted and presented
the Board with a memorandum regarding the Church's variance
request. The planner provided an analysis of the neighborhood and
detailed the requirements for the variance. The planner noted
that a use variance was required because auto storage is not a
permitted use in the O-15 zoning district.
On August 13, 2015, the Board conducted a hearing on the
application. The Board consists of seven members. Six of the
Board's seven members were present for the hearing. The Church
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presented two witnesses in support of the application: Gary Lotano
and David Shipman.
Lotano told the Board he has served in various leadership
positions with the Church and he is familiar with its activities.
He testified that about twenty years earlier, the Board had granted
the Church permission to expand the parking lot because church
attendance had grown. He stated that the Church no longer required
the extra parking spaces due to a gradual decline in attendance.
Lotano noted that under the proposed lease, the auto
dealership would be restricted to the use of certain entrances.
Lotano said that based on the Church's previous experience, the
proposed use would not have a significant impact upon traffic in
the neighborhood. He stated that the Church would not allow the
dealership to move cars into the lot by truck, and it would only
be allowed to move vehicles into the lot, one at a time.
Shipman stated that he has also held various leadership
positions with the Church. He said that during the previous twenty
years, the Church's membership had been declining. He noted that
the income generated from the lease would contribute to the
Church's budget.
Members of the public were permitted to comment, and they
voiced concerns about the effect the proposed use would have on
the neighborhood where the Church is located. Carr, who is a
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resident of the Township and President of the Township's Council,
opposed the application. He noted that the Township's zoning
ordinance did not allow the storage of bulk motor vehicles in the
O-15 zone.
Carr said if the Board granted the application, the Church
would be "running what is tantamount to a business." He added that
the Church had not presented any engineering or planning testimony
in support of the application. He said the Church was required to
present proof of "special reasons, proof of hardship or something
[of] the planning nature" in order to obtain the variance.
After some Board members indicated that any approval would
be subject to certain conditions, the members called for a vote.
Before the vote, the Church's attorney indicated he understood
only six members would be voting on the application. The Municipal
Land Use Law (MLUL),
N.J.S.A. 40:55D-1 to -163, provides that a
use variance may be granted only if approved by five members of a
seven-member board.
N.J.S.A. 40:55D-70(d).
After four members of the Board voted in favor of the
application, and one member voted against, the sixth member
abstained. The member who abstained explained that she was doing
so because of Carr's participation in the hearing, which she had
not anticipated since he often attends the Board's meetings.
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The member noted that she and Carr are members of the
Township's Land Use Committee, and during the hearing, Carr had
been asked about the Committee's discussions. The member stated
that if she had known Carr would be asked about those discussions,
she would have recused herself at the very beginning of the
hearing. She believed it would be unethical and improper for her
to vote on the application.
The Church's attorney told the Board that if he had been
asked if he wanted to proceed to a vote with only five voting
members, he would have said "No." The Board's attorney noted that
the Board member's abstention is considered a vote against
approving the application.
The Church's attorney asked the Board to cancel the vote, and
have another member listen to a tape recording of the hearing and
vote on the application. The Board continued the matter to its
next meeting. That meeting took place on September 10, 2015.
The Board determined that the Church was entitled to a vote
by the full Board with seven eligible Board members. The Board
member who had been absent from the August 13, 2015 meeting was
present. He indicated that he had listened twice to a taped
recording of the August 13, 2015 hearing. He voted in favor of the
application.
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The Board recorded the vote as five in favor, one opposed,
and one abstention. The Board determined that the Church's
application had received the required number of affirmative votes
and was approved. The Board memorialized its decision in a
resolution dated September 24, 2015.
Thereafter, plaintiffs filed this action seeking to
invalidate the Board's action. The Law Division judge considered
the appeal on April 20, 2016, and filed a written opinion dated
May 23, 2016, finding that there was sufficient credible evidence
in the record to support the Board's decision to grant the Church
the use variance and that the Board's action was not arbitrary,
capricious, or unreasonable.
The judge also found that the Board did not abuse its
discretion by continuing the matter so that six eligible Board
members could vote on the application. The judge entered an order
dated June 6, 2016, affirming the Board's action and dismissing
the complaint. Carr's appeal followed.
On appeal, Carr argues that: (1) the Board's approval of the
Church's application was invalid because the application failed
to receive five affirmative votes on August 13, 2015, as required
by the MLUL; (2) the Board's action in adjourning the matter and
continuing the vote at the September 10, 2015 meeting was not
authorized by the MLUL, and it was arbitrary, capricious, and
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unreasonable; (3) the Board's action in granting the use variance
was arbitrary, capricious, unreasonable, and unsupported by the
record; and (4) the Board's determination that the proposed lease
of the Church's property was for an inherently beneficial use was
arbitrary, capricious, unreasonable, and contrary to the record.
II.
We begin our consideration of the appeal by noting several
well-established principles. "[M]unicipalities are authorized to
impose conditions on the use of property through zoning by a
'delegation of the police power' that must 'be exercised in strict
conformity with the delegating enactment – the MLUL.'" Price v.
Himeji, LLC,
214 N.J. 263, 284 (2013) (quoting Nuckel v. Borough
of Little Ferry Planning Bd.,
208 N.J. 95, 101 (2011)). "The MLUL
exhibits a preference for municipal land use planning by ordinance
rather than by variance, which is accomplished through the
statute's requirements that use variances be supported by special
reasons, and by proof of the negative criteria." Ibid. (citations
omitted).
Generally, zoning boards "must be allowed wide latitude in
the exercise of delegated discretion" in these matters "because
of their peculiar knowledge of local conditions." Ibid. (quoting
Kramer v. Bd. of Adjustment,
45 N.J. 268, 296 (1965)). A zoning
board's decision is entitled to "a presumption of validity, and a
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court may not substitute its judgment for that of the board unless
there has been a clear abuse of discretion." Ibid. (citing Cell
S. of N.J., Inc. v. Zoning Bd. of Adjustment,
172 N.J. 75, 81
(2002)).
Therefore, a party challenging that grant or denial of a
variance must "show that the zoning board's decision was
'arbitrary, capricious, or unreasonable.'" Ibid. (quoting Kramer,
45 N.J. at 296). Although the court's standard of review is
deferential, the board "may not, in the guise of a variance
proceeding, usurp 'the legislative power reserved to the governing
body of the municipality to amend or revise the [zoning] plan.'"
Id. at 285 (quoting Feiler v. Fort Lee Bd. of Adjustment,
240 N.J.
Super. 250, 255 (App. Div. 1990)).
III.
We turn first to Carr's contention that the Church's
application was denied on August 13, 2015, when the application
failed to receive five affirmative votes, as required by
N.J.S.A.
40:55D-70(d). Carr contends the Board did not have authority under
the MLUL to adjourn the matter and continue the vote at the
September 10, 2015 meeting, so that another eligible member could
vote on the application. He argues that the Board's action is
arbitrary, capricious, and unreasonable. We disagree.
9 A-5003-15T2
"Municipal boards of adjustment created under
N.J.S.A.
40:55D-69 have seven members, and they may have up to four
alternates." D. Lobi Enters., Inc. v. Planning/Zoning Bd. of
Borough of Sea Bright,
408 N.J. Super. 345, 352 (App. Div. 2009).
As noted, the MLUL provides that a use variance under
N.J.S.A.
40:55D-70(d) may be granted "only by affirmative vote of at least
five members" of the seven-member board. "Thus, for a seven member
municipal board of adjustment, five out of seven votes is necessary
to approve a [N.J.S.A. 40:55D-70(d)] variance." D. Lobi Enters.,
408 N.J. Super. at 353.
N.J.S.A. 40:55D-10.2 also provides that a board member "who
was absent for one or more of the meetings at which a hearing was
held or was not a member of the municipal agency at that time,
shall be eligible to vote on the matter upon which the hearing was
conducted." The member may vote provided "the transcript or
recording of all of the hearing from which [the member] was absent
or was not a member" has been made available, and the member has
"certifie[d] in writing to the board that he [or she] has read
such transcript or listened to such recording." Ibid.
We reject Carr's contention that the Board acted arbitrarily,
capriciously, and unreasonably in adjourning the matter and
continuing the vote on September 10, 2015, with the participation
by the Board member who was not present at the August 13, 2015
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meeting. As we have explained, at the August 13, 2015 meeting, six
Board members were present, and the Church's attorney agreed to a
vote on the application, with the expectation that all six members
present would be voting.
However, after five of those six members voted, the sixth
member unexpectedly abstained from voting due to a perceived
conflict of interest. The Church's application only garnered four
affirmative votes, which was one short of the five votes required
by
N.J.S.A. 40:55D-70(d) for a use variance.
On appeal, Carr asserts that the Board member who abstained
from voting had sixteen years of experience on the Board, and she
has been the Chairperson for six years. He asserts that the member
presided at the August 13, 2015 meeting, and called for a vote
before she abstained. He contends that the vote taken at the August
13, 2015 meeting should have been considered final.
The fact remains, however, that the Board member abstained
from voting on the application after five other members voted, and
before the vote, the member did not indicate she would do so. As
the Law Division judge noted in her opinion, it is unnecessary to
decide whether the member's recusal was required. The member
abstained and her vote was not an affirmative vote on the
application. Mann v. Housing Authority of Paterson,
20 N.J. Super.
276, 279 (App. Div. 1952).
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In her opinion, the judge noted that no provision in the MLUL
directly addresses this situation. The judge found that the Board
acted properly in carrying the matter to the next meeting and
allowing another Board member to participate in the vote. The
judge explained:
This is not a case where the Board or its
members sought to unfairly manipulate a vote.
The Board sought a fair and impartial method
to resolve this unusual development and at the
same time to give the applicant what it
originally represented it would have: [t]he
benefit of a vote by [six] eligible members
of the Board. Under the unique circumstances
of this case, the [c]ourt cannot conclude that
the procedure adopted by the Board in
extending the vote to another date was the
product of any illegal and illicit
manipulation of the process[,] which would
have certainly rendered the ultimate decision
of the Board to be arbitrary, capricious or
unreasonable.
The judge found that the Board acted in good faith to preserve
the integrity of the hearing process and that such action was
"clearly within" the Board's discretion. The judge noted that if
the Board had not granted the continuance, there was a risk the
Church would have been deprived of a fair hearing and the
procedural protections afforded to it under the MLUL. The judge
found the Board's solution "preserved the rights of all interested
parties to a fair and complete hearing, as well as a vote on the
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application in a manner anticipated by the public as well as the
applicant."
The judge commented that the better practice would be for a
Board member who is compelled to abstain to make an "early
announcement" of the abstention. However, when a conflict arises
during the hearing, which the Board has not reasonably anticipated,
the Board has "the right to take steps to ensure the integrity of
its decision while affording appropriate notice to the applicant."
The judge found that the Board's decision to adjourn the
matter and continue the vote at the next meeting with the addition
of another eligible member was appropriate under the
circumstances. We agree with the judge's analysis.
We likewise conclude that the Board did not abuse its
discretion by adjourning the vote and allowing a seven-person
Board to vote on the application. No provision of the MLUL
precluded the Board from handling the application in this manner.
The Board's action was not arbitrary, capricious, or unreasonable.
IV.
Next, Carr argues that the Board's action in granting the use
variance to the Church was arbitrary, capricious, unreasonable,
and unsupported by the record. Carr contends the Church failed to
establish special reasons for the grant of the variance and the
trial court erred by affirming the Board's action.
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An applicant seeking a use variance has the burden to "prove
both positive and negative criteria" to a zoning board. Smart SMR
of N.Y., Inc. v. Fair Lawn Bd. of Adjustment,
152 N.J. 309, 323
(1998).
N.J.S.A. 40:55D-70(d)(1) authorizes a zoning board, "[i]n
particular cases for special reasons, [to] grant a variance to
allow departure from regulations pursuant to . . . [the MLUL] to
permit . . . a use or principal structure in a district restricted
against such use or principal structure." The term "special
reasons" is not defined in
N.J.S.A. 40:55D-70(d).
The courts, however, have recognized three categories in
which "special reasons" may be found. Nuckel,
208 N.J. at 102
(citing Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning
Bd. of Adjustment,
388 N.J. Super. 67, 76 (App. Div. 2006)). These
categories are: (1) where the proposed use inherently serves a
public good; (2) where the owner of the property would suffer an
"undue hardship" if required to use the property in the manner
permitted by the zoning ordinance; and (3) where the use would
serve the general welfare because the site is particularly suitable
for the proposed use. Ibid (citing Saddle Brook Realty,
388 N.J.
Super. at 76).
In addition,
N.J.S.A. 40:55D-70 provides that no variance or
other relief can be granted under this section of the MLUL "without
a showing that such variance or other relief can be granted without
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substantial detriment to the public good and will not substantially
impair the intent and the purpose of the zone plan and zoning
ordinance." The applicant for a use variance must establish this
negative criteria with an enhanced quality of proof. Price,
214 N.J. at 286 (citing Medici v. BPR Co.,
107 N.J. 1, 21 (1987)).
The applicant must focus "on the effect that granting the
variance would have on the surrounding properties." Price,
214 N.J. at 286 (quoting Medici,
107 N.J. at 22 n.12). The applicant
"must reconcile the grant of the variance for the specific project
at the designated site with the municipality's contrary
determination about the permitted uses as expressed through its
zoning ordinance." Ibid. (citing Medici,
107 N.J. at 21).
On appeal, Carr argues that the Board erred by finding that
the proposed use of the Church's property is for an inherently
beneficial use. We agree. The proposed use of a portion of the
Church's parking lot does not meet the generally accepted view of
an inherently beneficial use. Parking and storage of automobiles
by an off-site auto dealership is not an inherently beneficial
use. Moreover, such use is not ancillary to the Church's use of
the property for church-related purposes.
We recognize that the lease of the underutilized section of
the parking lot will generate funds that will be applied to
subsidize the Church's operations. This does not convert the
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commercial use of the property to one that is inherently
beneficial. Indeed, under that theory, almost any use of the
Church's property would be considered an inherently beneficial
use. We conclude that the variance cannot be justified on the
ground that the proposed use is for an inherently beneficial
purpose.
Nevertheless, we are convinced that the Church established
"special reasons" for the variance by showing that the
underutilized section of its parking lot is "particularly suitable
for the proposed use." Nuckel,
208 N.J. at 102 (citations omitted)
(quoting Saddle Brook Realty,
288 N.J. Super. at 76). As the trial
court found, the proposed use is indistinguishable from the
present, permitted use of the lot for parking.
Moreover, the Board imposed conditions in its resolution,
which are intended to ensure that the proposed use has a minimal
impact upon the surrounding properties. Those conditions are: (1)
the applicant must design a barrier to designate the area of the
property where the leased parking spaces are located; (2) no more
than six vehicles per hour may be transported to the property; (3)
there can be no bulk movement of vehicles or any car carriers or
other delivery of numerous vehicles to the site at one time; (4)
the parking spaces will be numbered and the applicant may not use
beepers or alarms on the vehicles; and (5) members of the public
16 A-5003-15T2
will not be permitted to inspect the vehicles at the site, nor
will any sales activity be permitted on the property.
Carr argues that the Church failed to meet its burden of
proof of showing that it would be a hardship for the Church to
comply with the zoning ordinance, but the Church did not seek to
establish "special reasons" on the basis of a hardship. Carr
further argues that the Church did not present sufficient evidence
to show that the proposed use is inherently beneficial; however,
as the trial court found, the variance is justified because the
site is particularly suited to the proposed use.
In addition, Carr contends that the Church failed to show
that the variance would advance one of the purposes of the MLUL
and did not show that the benefits from granting the variance
would outweigh any detrimental impact. Carr argues that the Church
failed to present any experts in the field of planning to support
its variance application.
The judge correctly found, however, that because the proposed
use is not substantially different from the present allowed use
of the property, no expert testimony was required. The proposed
use is indistinguishable from its present use, and the record
shows that the variance could be granted without any substantial
17 A-5003-15T2
detriment to the zoning ordinance or the zone plan.
Affirmed.
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