On appeal from Superior Court of New Jersey, Law Division, Morris County.
King, Deighan and Bilder. The opinion of the court was delivered by Deighan, J.A.D.
Plaintiff, Charlie Brown of Chatham, Inc. (Charlie Brown), filed an action in lieu of prerogative writs from a denial by the Zoning Board of Adjustment of the Township of Chatham (Zoning Board) of its application to provide sleeping accommodations for six of its employees on the second floor of its restaurant. Application was made on the basis of an accessory use under the Municipal Land Use Ordinance and for a variance for special reasons pursuant to N.J.S.A. 40:55D-70d. On appeal, the Superior Court, Law Division affirmed the action of the Zoning Board.
On this appeal plaintiff contends that: (1) the provision for sleeping quarters for selected restaurant employees is an accessory use to permitted restaurant operation in the business zone proscribing residential uses under the Land Use Ordinance (LUO); (2) the Zoning Board improperly took judicial notice of prior proceedings of the Planning Board of the Township of Chatham respecting plaintiff's property; (3) plaintiff (a) established special reason and (b) satisfied the negative criteria for a
use variance pursuant to N.J.S.A. 40:55D-70d, and (4) the Zoning Board in denying plaintiff's application was arbitrary, capricious and unreasonable. We disagree and affirm.
Plaintiff is the tenant and operator of a restaurant known as Charlie Brown located at 522 Southern Boulevard, Township of Chatham. The restaurant is located in a B (Neighborhood Business) District under the LUO. Section 703.1(c) of the LUO permits restaurants in the B District "in which patrons seated at tables or counters are served food and drink." It does not permit residential use. Section 703.2 (Permitted Accessory Use) of the LUO permits signs, off-street parking and "other accessory uses customarily incident to the uses listed in Section 703.1."
Accessory use is defined as "[a] use naturally and normally incident and subordinate to the principal use of a structure or lot, but not including any outdoor storage prohibited by Section 705.16." The LUO in Section 705.8 provides: "[w]here a use is not specifically permitted in a zone district, it is prohibited." Inasmuch as residential uses are prohibited in the B District, the mixed residential-commercial use is prohibited, unless the dormitory use falls within the definition of "accessory use."
Plaintiff leased the premises and commenced extensive renovations pursuant to a preliminary and final site plan approval granted by the Planning Board of the Township of Chatham by a resolution of July 19, 1982. Site plan approval was conditional: "Preliminary final site plan approval is hereby granted on the expressed condition that the second floor apartments shall not be used or occupied as a residential unit or for residential business."
On October 28, 1982, plaintiff applied to Martin J. Egan, construction official of the Township, for permission to provide sleeping accommodations for not more than six of the restaurant personnel on the second floor of the restaurant premises. On November 1, 1982, Egan responded that Article 703.1 and
Article 703.2 of the LUO did not permit mixed uses and that the Planning Board resolution approving the site plan specifically prohibited such use. On December 3, 1982, plaintiff appealed to the Zoning Board pursuant to N.J.S.A. 40:55D-70a.
The Charlie Brown chain of restaurants has a management policy of providing sleeping accommodations for its key employees as part of its overall compensation program. Accommodations in connection with the various restaurants may be either on-premises or off-premises depending upon the facility and the zoning restrictions in the particular community. Plaintiff's witnesses described the key employees as principally orientals who come from New York, work at the specific restaurant location and return to New York during days off. This policy enables the plaintiff to attract and maintain a high-quality kitchen staff. A house in the nearby community of New Providence has presently been rented for $700 per month to house these employees who are then driven between the two locations as their schedules require. The principal reason for using the second floor of the subject premises was one of economic convenience for the plaintiff.
Jeffrey Back, president of Charlie Brown Restaurants, New Jersey Division, who qualified as a restaurant industry expert, testified at length as to the benefits connected with providing sleeping accommodations for employees. He compared the accommodations with those of a ski resort.
Plaintiff also presented a planning expert, John A. Madden, Jr. who testified that the practice of providing housing accommodations for restaurant staff was a natural and normal accessory use in the restaurant business. This practice, he explained, has been with us since colonial times when the owners of restaurants and taverns resided on the premises. Madden further explained that under the Morris County Master Plan, the restaurant is located in the commercial center of Chatham known as Hickory Tree which is surrounded by garden apartments. He stated that the Master Plan stresses the need for a
balance between availability of housing and job locations and noted that there was no minimal multi-housing available within Chatham Township, a predominantly single-family community. Also noted were the pay scale of the employees, the high rents in the area and the lack of convenient mass transit.
Theodore Rubnowski, an architect who has worked for the Charlie Brown chain of restaurants, testified that accommodations have been provided in the past in older buildings where renovations have been made. However, no new restaurant structure which he has worked on has included accommodations. He also said that under the New Jersey Uniform Construction Code, restaurant use (A3) falls within the assembly building category while the dormitory would fall within the (R2) use group, which is a residential facility for accommodations for more than five and less than twenty individuals.
Robert O'Grady, the planner of the Township of Chatham testified in opposition to the plaintiff's application. He stated that he was the draftsman of the Municipal Land Use Ordinance. He noted that both the LUO and the Township Master Plan make a clear distinction between residential and commercial uses in the area. No residential uses are permitted in the business district zone except those in connection with qualified conditional uses permitted under the ordinance. The only residential uses are those specifically essential to security maintenance or emergency functions, i.e., nurses, security guards, and the like. None of these are connected in any way with the operation of restaurants. O'Grady was of the opinion that there was a trend away from mixed uses because of the difficulty in monitoring and enforcing applicable land use and health standards.
The Zoning Board affirmed the decision of the construction official denying the plaintiff permission to use the second floor of the premises as sleeping quarters for certain employees of the restaurant as an accessory use and further denied a use variance pursuant to N.J.S.A. 40:55D-70d.
Initially, when reviewing a decision of a municipal agency the trial court must recognize that the Legislature has vested discretion in the municipal agency to make that decision. Booth v. Bd. of Adj., Rockaway Tp., 50 N.J. 302, 306 (1967). Public bodies, such as the Zoning Board here, because of their peculiar knowledge of local conditions, must be allowed wide latitude in the exercise of their delegated discretion. Id. at 306. The reviewing court may not substitute its judgment for that of the zoning board, Kramer v. Bd. of Adjust., Sea Girt, 45 N.J. 268, 296 (1965); Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App.Div.1976). The action of the board of adjustment in denying a variance is entitled to the customary judicial presumption of validity. Kramer at 296; Kessler v. Bowker, 174 N.J. Super. 478, 486 (App.Div.1979), certif. den. 85 N.J. 99 (1980). It is presumed that the zoning board, as well as other municipal agencies, act "fairly and with proper motives and for valid reasons." Kramer 45 N.J. at 296.
On appeal, an appellate court is bound by the same scope of review. It gives deference to the municipality's broad discretion and reverses only if it finds the municipal action to be arbitrary, capricious or unreasonable. Shell Oil Co. v. Zoning Bd. of Adj. Shrewsbury, 64 N.J. 334 (1974), rev'g. on dissenting op. 127 N.J. Super. 60, 66 ...