For remandment -- Justices O'Hern and Garibaldi. For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock and Stein. The opinion of the Court was delivered by Clifford, J. O'Hern, J., dissenting.
This appeal focuses on the special reasons and negative criteria that guide a zoning board's consideration of an application for a variance under N.J.S.A. 40:55D-70d. The variance in question sought expansion of a pre-existing nonconforming use of the applicant's property for commercial purposes in a residential zone.
Specifically, the variance, which was granted by the municipal zoning board of adjustment, allowed the applicant to expand the bounds of his automobile junkyard-storage area, which is one component of his auto salvage, repair, and sale business. As a trade-off for expansion of the storage area, the applicant proposed to reorganize and relocate all of the nonconforming aspects of his business and move his auto-repair and sale activities from the front of his property to the back, out of view from the front street. The zoning board anticipated that the proposed arrangement would clear up a sprawling and unsightly mess. It granted the expansion because the aesthetic benefits of the proposed plan and the societal benefits gained
through the increased recycling of automobile parts constituted special reasons and satisfied the negative criteria.
The municipal governing body reached the same conclusion, as did the Law Division, but the Appellate Division reversed, finding no evidential support in the record for the conclusion that aesthetics and recycling benefits satisfied the statutory requirements of special reasons or the negative criteria. We granted certification, 111 N.J. 627 (1988), and now reverse and reinstate the judgment of the Law Division sustaining the grant of the variance.
The applicant for the variance is defendant John Paschal. He resides on the property in question with his wife, defendant Thelma Paschal. Hereafter "defendant," "the applicant," and "Paschal" refer to John Paschal.
The Paschals' property is a square-shaped, flat-terrained plot of 1.029 acres with a 250-foot front on Thomastown Road in the Township of Mine Hill. The depth of the property extends west approximately 190 feet from the centerline of Thomastown Road, which runs north-south. Although the Paschals' property and most of the property in the surrounding area is now zoned only for residential use, defendant's business -- salvaging auto parts and fluids, repairing and refurbishing old cars, and selling the rebuilt autos -- is permitted because the commercial use predates the first ordinance that zoned the property for residential use. That 1951 ordinance had the legal effect of converting the then-existing permissible auto-repair-shop operation into a nonconforming use.
The Paschals' residence is centered roughly on the property line running along Thomastown Road and is set back from the road approximately forty feet. The hub of defendant's automobile operations is a garage, separate from the residence and located on the northern edge of the property at the end of a gravel driveway approximately sixty feet long leading to the
road. Paschal repairs and refurbishes cars in the garage and along the driveway. In the past he has used the area in front of the driveway to display the rebuilt autos that he seeks to sell. In addition, he apparently leaves out in the front wrecked autos that he is in the process of dismantling. Under the 1951 ordinance, the effect of which was to permit the current nonconforming use, Paschal has the right to continue repairing and displaying automobiles on the northern side of the front of his property, along the gravel driveway. Thus, the current use exposes the residents of Thomastown Road to views of raw automotive-repair work. Moreover, the nonconforming use is clearly demarked from the road by a large sign attached to the garage advertising Paschal's services.
In 1979, as a condition to his obtaining a salvage dealer's license, Paschal was required under the Township junkyard ordinance to build a fence enclosing an area in which the used-automobile and salvaged parts could be stored safely, out of public view. At a cost of $25,000 defendant built a ten-foot high, solid-wood plank fence at the rear of his property. However, that fence encloses an area substantially larger than the space enclosed by a storage area fence that previously existed on the property, built by Paschal's predecessor, Nick Hryhor. Whereas the Hryhor fence enclosed a storage area of only about 15,000 square feet near the northwest corner of the property, defendant's fence surrounds a space of about 25,000 square feet, thereby creating more than 10,300 square feet of new automobile-storage space by enclosing most of the southern half of the property, including the area previously bounded by the Hryhor fence.
Plaintiffs, all members of the Burbridge family, own and reside on three parcels of land on Thomastown Road in the vicinity of the Paschals' property. The construction of defendant's "new" fence prompted earlier litigation by these same plaintiffs, who sought removal of the fence on the ground that it represented an improper expansion of the pre-existing nonconforming use of the property as a junked-auto storage area.
Plaintiffs prevailed at the trial level in that suit, and the Appellate Division affirmed judgment in their favor in an unpublished opinion in January 1985. The basis for that decision was that Paschal's fence enclosed an area that illegally expanded the pre-existing storage area, which was held to be limited to the space enclosed by the Hryhor fence. The court restrained Paschal from storing autos in the fenced-in area that lay in the southern half of the property, and ordered defendant to remove the offending portions of his fence. When defendant did not remove the fence, plaintiffs brought a motion seeking an Order in Aid of Litigant's Rights to compel removal of the fence. See Rule 1:10-5. The court dismissed the motion without prejudice, but ordered defendant to seek a variance, pursuant to N.J.S.A. 40:55D-70d, to legitimize the expansion of the nonconforming storage area.
Paschal thereupon applied to the Mine Hill Zoning Board of Adjustment (the Board) for the necessary variance to expand four features of the existing nonconforming use. That application forms the basis for this suit. Paschal sought permission (a) to use the entire space enclosed by his $25,000 fence, thereby substantially expanding the auto-storage area; (b) to create on the southern part of the property a second gravel driveway leading to the storage area; (c) to widen to forty feet the gravel drive to the garage in the northern section, thereby creating an area forty feet wide that would allow parking for three cars; and (d) to use as an office for the auto-service business the two rooms that he had added to the garage in 1977.
In exchange for the variance Paschal proposed to re-organize and relocate the other nonconforming uses on the property and in general to clean up the auto-repair and salvage operations. As part of his application defendant agreed to move the auto-repair and sale operations from the front of the garage and continue those activities only in the backyard storage area. Between 3,700 and 3,900 square feet of front property, visible from the street, would no longer be dedicated to a nonconforming
use. The application also proposed that the front of the property be landscaped with bushes and shrubs to hide the storage-area fence and to screen defendant's operations from public view. In addition, Paschal offered to remove the large "Auto Body Repair" sign hanging from the garage and to replace it with a more tasteful sign, stating only "Paschal's" and hanging from a low post in front of the property.
At the hearing before the Board four witnesses testified in support of the application. No one testified in opposition. Two supporters were neighbors who reacted favorably to the likelihood that the proposed changes would improve the appearance of the property. The third witness was a professional land planner and development consultant whose firm had designed the landscaping plan for the property. He believed that approval of the application would have a "positive impact" on Thomastown Road and on the neighborhood and would result "not [in] a detriment to the zone plan * * * [but in] a benefit to the neighborhood." Finally, a real-estate broker and appraiser gave his opinion that the proposal would have only a positive effect on property values in the surrounding neighborhood because "taking the parking off of [the garage] side, pulling it into an area which really cannot be seen from the street * * * would help the saleability and * * * pricing."
Considering only the evidence presented before it and expressly disregarding the record in the previous litigation, which it deemed "irrelevant," the Board clearly saw the application as an opportunity to clean up a rambling, offensive, and unsafe operation. It therefore granted the variance to expand the storage area. In addition to barring all automotive-repair work visible from the front of the property, the Board imposed a host of restrictions to regulate the nonconforming use. The Board resolution lists nineteen conditions to which the variance grant is subject, such as limiting the hours of operation, limiting the quantities of tires and flammable materials stored on the property, prohibiting defendant from using a crusher to compact the automobiles, regulating the type and placement of shrubbery in
the front of the property, and forbidding customer parking on Thomastown Road.
In its resolution the Board articulated two distinct special reasons for granting the variance. The overriding reason was that the public would benefit from the re-organization and re-positioning of the nonconforming uses, which would now conform better to the residential quality of the zone, be more aesthetically pleasing in general, and permit the Township greater control over the property. The resolution states:
The Board believes that even if the salvage yard was limited to the existing permissible storage area, * * * the aesthetic nature of the use of the property in question does not fit in any shape or form with the character of a residential neighborhood. However, by allowing the expansion in question, the Board retains the control necessary to make certain fundamental changes in the way the applicant operates the business and also to clean up the site in question so that the purposes and intent of the Mine Hill Township zoning ordinance and of the Municipal Land Use Law will be furthered by virtue of elimination of some of the conditions which now exist on the property in question.
Convinced that the salvaging of auto parts was "essentially the business of recycling," the Board also found an additional affirmative ground for granting the variance. The resolution states that "it is in the best interest of the community to allow for recycling of such materials since it [both] supports * * * a conservation of energy and * * * eliminates the abandonment of automobiles" and that the sale of recycled auto parts "provides a source of automobile parts at a reduced cost to members of the public."
As for the negative criteria the Board found no evidence from which to conclude that the grant of a variance would either be a substantial detriment to the public good or substantially affect the intent and purpose of the zoning laws. It cited the enhanced aesthetic quality and the recycling benefits gained from the proposal as supporting its conclusion that the variance would not "affect either the zoning ordinance or the public welfare * * *."
The Burbridges appealed the variance grant to the municipal governing body, which affirmed the grant after a de novo
review. The Law Division upheld that decision, but the Appellate Division, in an unreported opinion, reversed and set aside the variance. Although it found the aesthetic benefits of the proposal "laudable," the court nevertheless concluded that in this case aesthetics could not support the requirement of special reasons "since the proposed expansion is of such a magnitude that the aesthetic improvements claimed are incidental." The court below was similarly unimpressed with the public benefits of recycling as a special reason as it was with the applicant's effort to establish that the subject property was particularly suitable for the proposed use. The Appellate Division observed that "[there] were no such findings, and the record [failed] to establish any basis for such a finding." Finally, the court below concluded that there was no "adequate evidence in the record that the zoning benefits outweigh the zoning harm."
Some basic principles bear restating.
A board of adjustment has authority to grant a variance and permit the nonconforming use of zoned property pursuant to N.J.S.A. 40:55D-70d, which confers on a board the power, ...