May 1, 1992
FRANK PAGANO AND TOM ZECCHINO T/A T & F OUTDOOR SPORTS, PLAINTIFFS,
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EDISON, DEFENDANT
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I. Factual Background
Plaintiffs Frank Pagano and Tom Zecchino (trading as T and F Outdoor Sports) appeal from the September 17, 1991 resolution of the Zoning Board of Adjustment of the Township of Edison (the "Board") denying their application for a use variance to permit the utilization of the portion of premises located at 523 Raritan Center Parkway for a pistol range and for retail sales of hunting and fishing supplies.*fn1 The subject property is located in the L-I (PUD) zone which allows neither the pistol range nor retail sales.*fn2 A public hearing was held on June 18, 1991, at which the applicants provided the testimony of Frank
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Pagano (one of the partners of T and F Outdoor Sports) and Jack Giordano (a Port Authority police officer and National Rifle Association (NRA) certified firearms instructor) in support of the variance request.
Mr. Pagano testified*fn3 that the applicants were licensed to sell firearms by both Federal and State authorities as would be all employees, and that these requirements would be continually monitored by Municipal, State, and Federal authorities. Though not a planner, he opined that the proposed location for the pistol range, in the Raritan Center, was an appropriate site due to its location away from residential areas, while being convenient to Edison residents who presently must travel to other municipalities to engage in recreational shooting. He also concluded that the operation of the pistol range was safe, noting as follows:
No more than one individual would utilize a shooting stall at one time; NRA certified officers would provide instruction and insure range safety; Range safety equipment would be installed according to the specifications of Detroit Armory, an experienced company in the installation of range safety equipment;
Special security arrangements, including a vault for the storage of the firearms, electronic sensors, as well as direct emergency access to the local police department, would be installed.
In response to concerns about the noise levels that would be generated by the proposed use, Pagano explained:
Inside the range, hearing protection (as well as eye protection) would be mandatory through the use of special equipment;
Soundproofing would be required within the facility;
Little, if any, noise would be discernible outside the range, and that the existing mechanic shop, which shared the existing structure, would be louder;
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That any requirements of the health department in this context would be addressed and satisfied.*fn4
The next witness was Jack Giordano, a Port Authority police officer and NRA certified firearms instructor, who testified as follows:
The shooting range installation company, (Detroit Armory) would use "state of the art" equipment and techniques and has been recognized as being safe, clean and otherwise desirable insofar as such ranges are concerned.
The U.S. government estimates that 70 million Americans own firearms and that there is a firearm in one out of every two homes.
From 1968 to 1988 firearms accidents dropped 52 percent, primarily because of places to shoot, practicing and increased effectiveness of safety programs and training.
Legal shooting ranges enhance the safety of persons both outside and within as contrasted against the discharge of firearms in a basement or outdoors. The patrons of the range would most likely come from Edison although some would come from other areas.
The patrons would likely be good citizens.
Many police officers would utilize the range since they do not have a facility available on their own time.
Training would be provided to all employees working the range as NRA certified firearms instructors.
Several citizens also testified both in favor of and in opposition to the proposed use, although such testimony for the most part, lacked an adequate factual foundation, representing mere "opinions" or "feelings".*fn5
The public hearing was closed on August 20, 1991. Following the Board's deliberations the application was denied four
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votes to three. A resolution memorializing this decision was adopted on September 17, 1991, which essentially concluded:
(1) that the applicants had failed to establish "special reasons" as a matter of law;
(2) that the use variance, if granted, would result in substantial detriment to the public good and would substantially impair the intent and purpose of the Township's master plan and zoning ordinance; and
(3) that the applicant failed to reconcile the proposed pistol range with the omission of this type of use from the L-I zone or any other district within the Township.*fn6
II. Scope of Review
In reviewing any decision of a zoning board, the court's power is tightly circumscribed. In recognition of the fact that local officials are "thoroughly familiar with their communities' characteristics and interests and . . . are undoubtedly the best equipped to pass initially on such applications for variances," Ward v. Scott, 16 N.J. 16, 23, 105 A.2d 851 (1954), the Board's decisions are cloaked with a presumption of validity, which presumption attaches to both their acts and their motives. Public bodies, because of their peculiar knowledge of local conditions, are thus allowed wide latitude in the exercise of the
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discretion delegated them under the Municipal Land Use Law. N.J.S.A. 40:55D-1 et seq.
So long as there is substantial evidence to support it, the court may not interfere with or overturn the decision of a municipal board. Even when doubt is entertained as to the wisdom of the board's action, or even as to some part of it, there can be no judicial declaration of invalidity absent a clear abuse of discretion by the board. Consequently zoning determinations may be set aside only when the court has determined the decision to be arbitrary, capricious or unreasonable. Medici v. BPR Co., 107 N.J. 1, 15, 526 A.2d 109 (1987); Kramer v. Sea Girt, 45 N.J. 268, 296, 212 A.2d 153 (1965).
III. The Merits of the Variance Application
Under N.J.S.A. 40:55D-70(d), a use variance may be granted upon: a) an affirmative showing of "special reasons" (the "positive criteria"); together with b) a showing that the variance, if granted, will not result in substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance (the "negative criteria").
In Kohl v. Fair Lawn, 50 N.J. 268, 234 A.2d 385 (1967), and more recently in Medici, supra, the Supreme Court articulated the principles and standards to guide this court in determining whether, pursuant to this statutory scheme, a use variance may be granted.
Applying these standards, the Board's decision in this case was plainly deficient in several respects. Not only did the Board fail to provide a sufficient factual basis for rejecting the applicants' purported special reasons and their claimed satisfaction of the negative criteria, but it committed several legal errors as well. For the reasons set forth below, the resolution of September 17, 1991 must be vacated and the matter remanded for further proceedings not inconsistent with this opinion.
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A. The Positive Criteria -- Special Reasons
As was recognized long ago in Grimley v. Ridgewood, 45 N.J. Super. 574, 581, 133 A.2d 649 (App.Div.1957), "special reasons" is a flexible concept and no precise formula is feasible. Accordingly, each case must turn on its own facts and circumstances. Kohl v. Fair Lawn, supra, 50 N.J. at 276, 234 A.2d 385; Degnan v. Monetti, 210 N.J. Super. 174, 182, 509 A.2d 277 (App.Div.1986). The "special reasons" standard has generally been defined in relation to the purposes of zoning (N.J.S.A. 40:55D-2), emphasizing the promotion of the general welfare as the zoning purpose that most clearly exemplifies its meaning. Medici, supra, 107 N.J. at 18, 526 A.2d 109.
The Supreme Court has repeatedly held that the special reasons standard is satisfied as a matter of law by uses which inherently serve the general welfare.*fn7 See Sica v. Bd. of Adj. of the Tp. of Wall, 127 N.J. 152, 603 A.2d 30 (1992) (private head trauma facility); 0 Andrews v. Ocean Tp. Board of Adjustment, 30 N.J. 245, 249, 152 A.2d 580 (1967) (education of children); DeSimone v. Greater Engelwood Housing Corp., 50 N.J. 428, 440, 236 A.2d 138 (1970) (quasi-public housing).
1 Where the use is not of the type which inherently benefits the general welfare,*fn8 special reasons to support a use
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variance may be established by a finding that the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought.*fn9 Medici, supra, 107 N.J. at 4, 18, 24, 526 A.2d 109; Kohl, supra, 50 N.J. at 279-280, 234 A.2d 385.
2 Plaintiffs' contention is that special reasons were established here because two of the expressed purposes of zoning, e.g. promotion of the general welfare and provision of adequate recreational facilities, would be advanced by this use.*fn10 However, the record is devoid of any proof demonstrating that the general welfare was advanced due to the location of the pistol range at that site. Even though the general welfare may admittedly be advanced by the proposed use, absent proof that the general welfare would not similarly be advanced by locating the pistol range at other locations,*fn11 or proof that no other
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suitable sites exist, the applicants could not be said to have satisfied their burden of establishing the particular suitability of the Raritan Center site for the proposed use.*fn12 Indeed, as cautioned by the Supreme Court in Kohl, supra:
[I]f the general social benefits of any individual use -- without reference to its particular location -- were to be regarded as an adequate special reason, a special reason almost always would exist for a use variance. Id. 50 N.J. at 280, 234 A.2d 385.
At best, the site was a "convenient" location for Edison Town-ship 3 residents and was sufficiently distant from residential or other developed areas so as to diminish the likelihood of danger or noises attributable to the use.*fn13
4 Nonetheless, the Board's resolution in this case does not reflect the deliberative and specific findings of fact necessary to sustain its Conclusions. See Medici, supra, 107 N.J. at 25, 526 A.2d 109; See also, Harrington Glen, Inc. v. Mun. Bd. of Adj. of Bor. of Leonia, 52 N.J. 22, 28, 243 A.2d 233 (1968); and compare Griffin Const. Corp. v. Bd. of Adjust. of Teaneck, 85 N.J. Super. 472, 477, 205 A.2d 313 (App.Div.1964), certif. den., 44 N.J. 408, 209 A.2d 143 (1965) (denial of variance not automatically sustainable upon a perfunctory finding, phrased in the Conclusionary language of the statute that the applicant failed 5 to satisfy its burden, unless grounded in evidence supportive of the substance of such Conclusion). Other than the Conclusionary
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recitation in its resolution that the proposed use was neither inherently beneficial nor particularly suited to the proposed site, no findings of fact, predicated upon factual support in the record, were made.
Because both the record and the Board's resolution are inadequate for reasons hereafter expressed,*fn14 the matter will be remanded to permit the applicants, if they so desire, to supplement the record before the Board, and to permit the Board to adopt new findings and Conclusions. See Medici, supra, 107 N.J. at 26, 526 A.2d 109.
B. 6 The Negative Criteria
In addition to proof of special reasons, N.J.S.A. 40:55D-70(d) also requires an applicant for a use variance to establish that the requested relief can be granted without substantial detriment to the public good (known as the first prong of the negative criteria) and will not substantially impair the intent and purpose of the zone plan and zoning ordinance (the second prong). See Medici, supra, 107 N.J. at 22, 526 A.2d 109.
1. The First Prong
As explained in Medici, supra, 107 N.J. at 22, n. 12, 526 A.2d 109, the Supreme Court intended no change in the proof required to satisfy the first prong of the negative criteria -- that the variance can be granted "without substantial detriment to the public good." Consequently, the Board is required to evaluate the impact of the proposed use variance upon adjacent properties and to determine whether the proposed use will cause such damage to the character of the neighborhood as to constitute " substantial detriment to the public good." Id. (Emphasis supplied). See also, Yahnel v. Bd. of Adj. Jamesburg,
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79 N.J. Super. 509, 519, 192 A.2d 177 (App.Div.1963), certif. den., 41 N.J. 116, 195 A.2d 7 15 (1963).
Although the Board concluded that the requested relief could not be granted without substantial detriment to the public good, the resolution is utterly devoid of any factual findings upon which its conclusory incantation of the statutory language could have been based. A review of the record discloses that substantial, uncontroverted testimony was offered in support of the first prong of the negative criteria.
As established by that testimony, the location of the proposed use substantially reduced the likelihood of any negative impact, much less a substantial one, to the surrounding properties. The proposed use was to be located in an industrial park, in which a variety of recreational uses (although not the proposed use) were permitted under the ordinance. No residential properties were in close proximity. Likewise, expert testimony regarding the acceptability of noise levels expected to be generated by the pistol range was factually substantiated by the favorable comparison to the higher noise levels being generated by existing uses on the site.
Also relevant, was the applicants' ability to deal effectively and efficiently with the 8 disposal of the spent lead cartridges, considered a hazardous material by the D.E.P.E. Again, the expert testimony explaining the procedures by which this material would be safely removed was neither contested nor questioned by the Board. Were this a legitimate issue, the Board could easily have guarded against any danger by imposing a condition requiring Disposition by a (D.E.P.E.) licensed hauler to remove the material and full compliance with all applicable environmental regulations. See N.J.S.A. 40:55D-22(b).*fn15
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Finally, the Board's stated concern regarding the potential illegal transportation of firearms, although arguably encompassed within a broad interpretation of the negative criteria, was 9 speculative at best, not sufficiently grounded on any finding of fact, legally irrelevant and ultra vires. See N.J.S.A. 40:55D-65.*fn16
2. The Second Prong
In Medici, supra, the Supreme Court also required "an enhanced quality of proof and clear and specific findings" that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance. As noted by the Court:
the applicant's proofs and the board's findings that the variance will not "substantially impair the intent and 0 purpose of the zone plan and zoning ordinance," N.J.S.A. 40:55 D-70(d), must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district.
The board's resolution should contain sufficient findings, based on the proofs submitted, to satisfy a reviewing court that the board has analyzed the master plan and zoning ordinance, and determined that the governing body's prohibition of the proposed use is not incompatible with grant of the variance . . . . To the extent this requirement narrows the discretion of boards of adjustment to grant use variances for uses intentionally and persistently excluded from the zoning ordinance by the governing body, we believe it accurately reflects the strong legislative policy favoring zoning by ordinance rather than by variance. Id. 107 N.J. at 21, 23, 526 A.2d 109.
In applying the negative criteria to this case, however, the Board relied not upon the zoning ordinance and master plan,
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but rather, upon the general code of the Township of Edison, sec. 27-1, which essentially prohibits pistol ranges anywhere within the Township. In doing so, the Board concluded that the applicants could not 1 reconcile the proposed pistol range with the Code's specific prohibition of that use, and as such, could not satisfy the second prong of the negative criteria as a matter of law.
The novel issue raised in this case then, is whether a zoning board is thus empowered to reach beyond the four corners of the zoning ordinance and master plan in determining whether an applicant has satisfied the negative criteria.
In this regard, the Board argues that the existence of ordinance 27-1 which prohibits the discharge of firearms except at "a licensed pistol, rifle or firearm range and under the supervision of the police department of the Township of Edison," is conclusive proof of the governing body's intentional omission of the use from the zoning ordinance and thus dispositive of the reconciliation issue.
As noted by the Supreme Court in Medici, the nature of the proofs offered to achieve reconciliation of the proposed variance with a zoning ordinance "will depend on the circumstances of each case." Medici, supra, 107 N.J. at 21, n. 11, 526 A.2d 109. There the Court set forth a number of examples, "offered merely to illustrate, and not to exhaust, the nature of the proofs that 2 could be offered to reconcile a proposed use variance with the provisions of the zoning ordinance." Id.
The question of whether ordinance 27-1 precludes the applicants from satisfying the second prong of the negative criteria as a matter of law must be decided by this court, Jantausch v. Bor. of Verona, 41 N.J. Super. 89, 96, 124 A.2d 14 (Law Div.1956) aff'd 24 N.J. 326, 131 A.2d 881 (1957), the interpretation of an ordinance being a subject essentially within the province of the courts. Grancagnola v. Pl. Bd. of Twp. of Verona, 221 N.J. Super. 71, 75-76, 533 A.2d 982 (App.Div.1987). Any agency's determination with regard to a question of law is
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thus subject to a de novo review by the courts. Id. at 75-76, n. 5, 533 A.2d 982. This is especially significant here, where the Township attorney has opined that the proposed use falls within the exceptions available under ordinance 27-1.
Under the circumstances of this case, where reconciliation depends not upon a demonstration of substantial changes in the needs and character of the neighborhood, which require factual determinations by a zoning board, but rather upon the Board's legal 3 interpretation, judicial deference is not required, since a zoning board has "no peculiar skill superior to the courts'" regarding purely legal matters. Jantausch, supra, 41 N.J. Super. at 96, 124 A.2d 14; Grancagnola, supra, 221 N.J. Super. at 75-76, 533 A.2d 982.
Although a literal reading of the Medici opinion might support an argument that resort to matters or information beyond the four corners of the zoning ordinance or master plan is inappropriate, a fair reading of Medici generally, and footnote 11 specifically, compels a less restrictive view.
This court therefore concludes that neither the Board, the applicant nor the court are restricted to the zoning ordinance and master plan in seeking to glean whether the governing body's omission of a proposed use was inadvertent or deliberate. The parties must be permitted to rely upon whatever probative information exists, whether it be legislative history, records of public hearings associated with the adoption or amendment of a zoning ordinance or master plan, or any other formal action, decision, or refusal to act in determining the governing body's intent.
Having concluded that ordinance 27-1 of 4 the general code is relevant to resolving this issue, the court must analyze the specific language of the ordinance. On its face, the ordinance permits a "licensed" pistol range if it is "under the supervision of the Police Department of The Township of Edison." Consequently it is clear that the municipal governing body specifically anticipated the possibility of a "licensed"
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firearms range being located somewhere within the Township's borders.*fn17 This court is thus satisfied that the omission of a firearms range from the zoning ordinance was inadvertent as a matter of law. Simply stated, the use cannot be, at once, both permitted and prohibited.
5 By way of summary, it was proper for the Board to refer to ordinance 27-1 in analyzing the question of whether the omission of pistol ranges from the zoning ordinance was inadvertent. The Board's Conclusion in this regard, based upon its legal interpretation of ordinance 27-1, was legally deficient and without any legitimate basis. Accordingly that portion of the resolution which concludes that the applicant failed to reconcile the proposed pistol range with its omission from the zoning ordinance is set aside as arbitrary, unreasonable and erroneous as a matter of law.*fn18
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6 IV. The Remand
The final issue of moment to be resolved by this court is the nature of the proceedings to be conducted on remand. While it has long been the law of this State that conclusory resolutions which merely recite the statutory positive or negative criteria (N.J.S.A. 40:55D-70d) will not be sustained, this bedrock principle has been regularly ignored over the years. See Griffin Const. Corp. v. Bd. of Adjust. of Teaneck, 85 N.J. Super. 472, 477, 205 A.2d 313 (App.Div.1964), certif. den., 44 N.J. 408, 209 A.2d 143 (1965); Harrington Glen, Inc. v. Mun. Bd. of Adj. of Bor. of Leonia, 52 N.J. 22, 28, 243 A.2d 233 (1968); Medici, supra, 107 N.J. at 25, 526 A.2d 109. This phenomenon is not entirely surprising, given the courts' historical response of vacating these deficient resolutions and remanding the matter to the board for adoption of a more detailed, factually grounded resolution.
Not only do boards generally lack an incentive to undertake the kind of deliberative and often painstaking process required to propose and adopt a proper resolution, but there exist subtle, yet significant disincentives which have resulted in widespread 7 noncompliance. Far too often, complaints are filed challenging resolutions which lack a sufficient factual basis only to be remanded by the courts. Routinely, this remand only occurs:
1. after waiting 45 days for the adoption of a written resolution;
2. after the case has been pre-tried;
3. after the transcripts have been ordered;
4. after the case has been briefed by the plaintiff;
5. after the resolution's alleged factual and legal deficiencies have been identified; and
6. after the merits of the case have been argued.
By the time the matter has been remanded, the resolution's alleged deficiencies have already been identified and addressed
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in detail by plaintiff and the court. Invariably, following the remand, the board or its attorney carefully draft a resolution articulating factual findings which have been specifically tailored to meet these perceived deficiencies.
Compounding this inherent inequity is the financial, and possibly irreparable, harm which will likely accrue to the plaintiff:
1. the proposed project has been, for all practical purposes, stalled during the pendency of the litigation;
2. financial commitments may possibly have lapsed;
8 3. interest rates may possibly have changed; and
4. contracts or options to purchase property may have expired.*fn19
These circumstances cannot be claimed:
to encourage municipal action to guide the appropriate use or development of all lands in this State in a manner will promote the public health, safety, morals and general welfare and to encourage coordination of the various public and private procedures and activities shaping land development with a view of lessening the cost of such development and to the more efficient use of land.
Levin v. Tp. of Parsippany-Troy Hills, 82 N.J. 174, 179, 411 A.2d 704 (1980); cf. Manalapan Holding Co. v. Hamilton Tp. Pl. Bd., 184 N.J. Super. 99, 108, 445 A.2d 410 (App.Div.1982), rev'd on other grounds, 92 N.J. 466, 473, 457 A.2d 441 (1984) (acknowledging that protracted determinations in the land development process result in undue harassment of applicants and substantial economic prejudice to legitimate plans and recognizing the consequent need for prompt Disposition of applications).
9 Ironically a board which meets its statutory obligations, adopts a factually based resolution and thus permits meaningful judicial review, assumes an increased risk of reversal. On the other hand, a board which merely recites the statutory language will rarely be reversed outright.
Despite this reality, little can be done to alter this imbalance other than to provide the plaintiffs with the concomitant opportunity
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following remand, to supplement the record in order to address any perceived deficiencies that may have come to light through the litigation process. This is especially appropriate in this case, not only because of the novel legal issues raised, but because of the numerous and significant legal errors made by the Board, which clearly impacted the nature, and at least indirectly, the extent of the proofs introduced by the applicants. See Medici, supra, 107 N.J. at 26, 526 A.2d 109 (because record and resolution were inadequate to sustain variance, applicant permitted on remand to supplement record).
Because both the record and resolution are inadequate to warrant the relief sought by the applicants, and because of the significant legal errors committed by the Board, the within matter is remanded for further proceedings not inconsistent with this opinion. Jurisdiction is not retained.