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Institute for Evaluation and Planning Inc. v. Board of Adjustment

Decided: April 5, 1993.

INSTITUTE FOR EVALUATION AND PLANNING, INC., A NEW JERSEY NON PROFIT CORPORATION, JOHN MARTIN, AND MARY MARTIN, PLAINTIFFS,
v.
BOARD OF ADJUSTMENT AND ZONING OFFICER OF THE BOROUGH OF FREEHOLD, DEFENDANTS



O'Hagan, J.s.c.

O'hagan

The plaintiffs, Institute for Evaluation and Planning, Inc., (hereafter IEP) and John Martin and Mary Martin, appeal from the denial of their application by the Freehold Zoning Board of Adjustment. The court, on the plaintiffs' motion for summary judgment, finds that the use proposed is allowed by law since it does not impermissibly expand a non-conforming use, and therefore, grants judgment reversing the Board's decision.

The plaintiffs John Martin and Mary Martin are the contract purchasers of Lots 15 and 16 in Block 28 situated at the intersection of West Main Street and Manalapan Avenue in Freehold Borough. IEP is a non-profit corporation of the State of New Jersey. The testimony at the hearing established that once municipal approvals were secured, plaintiffs Martin intended to lease the premises to IEP which in turn would enter into a contract with the Division of Youth and Family Services (hereafter

DYFS) to operate a group home for girls. The property in question is improved by a single-family dwelling situated on Lot 16 and a two-car garage on Lot 15. The group home to be operated by IEP and funded by DYFS provides for placement of young girls between the ages of thirteen and seventeen. The expected population of the home will be girls with emotional, social, physical and/or behavioral needs who do not require a more restrictive facility for their own protection or that of others. The Zoning Officer of Freehold Borough denied the application stating "a group home is not a permitted use in the B-2 zone. Also, this is an expansion of a non-conforming use in converting from a single-family home to multi-family dwelling unit."

The Zoning Board of Adjustment denied the plaintiffs' appeal from that ruling of the Zoning Officer. The Board found that the proposed use constituted an expansion of a non-conforming use in that IEP proposes a more "intense use" of the property, and further, the addition of staff members represents an expansion of the residential use. Further, the Board of Adjustment asserted that the attendant traffic and parking requirements expected to be generated by the group home would result in the residential lot being used as a parking lot.

The evidence at the hearing established that the premises had been used as a residence for more than thirty years. The residential uses predated the adoption of the 1969 Zoning Ordinance of the Borough of Freehold when Lot 16 was designated to be in the B-2 business zone while Lot 15 was designated to be in the R-7 residential zone. The dwelling in question is a large single family house which is suitably improved to accommodate the needs of its proposed occupants.

The plaintiffs request judgment overturning the decision of the Zoning Board of Adjustment. The role of the court, in reviewing the determinations of the Zoning Board of Adjustment, is limited and carefully prescribed. The court cannot merely substitute its own judgment for that of the Board. See Pascack Ass'n Ltd. v. Mayor & Coun. Washington Tp., 74 N.J. 470, 487-88,

379 A.2d 6 (1977) (judicial branch is not suited to the role of an ad hoc super zoning legislature). The Board's decision is presumed to be valid. Kessler v. Bowker, 174 N.J. Super. 478, 417 A.2d 34 (App.Div.1979); Pagano v. Zoning Board of Adjustment, 257 N.J. Super. 382, 608 A.2d 469 (Law Div.1992). Further, it must be presumed the Board's motives were valid and its determinations based on valid reasons. Ibid.; Levitin v. Bd. of Adj. of Bloomfield, 66 N.J. Super. 208, 214, 168 A.2d 686 (Law Div.1961). The court can overturn the Board's decision only if convinced the Board acted in an arbitrary, capricious or unreasonable fashion. 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). The burden of proof is on the property owner to establish that the Board acted improperly. See Ring v. Mayor & Council of Borough of Rutherford, 110 N.J. Super. 441, 266 A.2d 129 (App.Div.), cert. den. 401 U.S. 911, 91 S. Ct. 876, 27 L. Ed. 2d 810 (1970).

A resolution by a Board of Adjustment, when supported by sufficient credible evidence, must stand. Urban Planning Bd., 238 N.J. Super. 105, 111, 569 A.2d 275 (App.Div.1990) (citing Rowatti v. Gonchar, 101 N.J. 46, 51, 500 A.2d 381 (1985)). However, a Board's determination of a legal issue "is entitled to no particular deference since the courts are equipped to resolve issues of law." Ibid. (citing Cherney v. Zoning Bd. of Adj., 221 N.J. Super. 141, 145 n. 1, 534 A.2d 41 (App.Div.1987)). Since there is no dispute of material fact in the present controversy, summary judgment is appropriate. R. 4:69-2.

It is well established that municipalities are creatures of the State. See Becker v. Adams, 37 N.J. 337, 181 A.2d 349 (1962). A municipality has only those powers delegated by the State. Ibid. When the provisions of a municipal ordinance conflict with State law, the State law controls. See Dome Realty, Inc. v. Paterson, 83 N.J. 212, 232, 416 A.2d 334 (1980). A municipality's power ...


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