Before Judges Pressler, Kimmelman and Arnold.
The opinion of the court was delivered by: Arnold, J.S.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 28, 1999 - Decided November 12, 1999
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
The opinion of the court was delivered by
At issue in this appeal is whether the decision of the Fair Lawn Zoning Board of Adjustment (Board) denying an application for a use variance under N.J.S.A. 40:55D-70(d) was arbitrary, capricious, and unreasonable. Scholastic Bus Company, Inc. (Scholastic) and Wendell Realty (Wendell) had applied for the use variance to locate a school bus parking and maintenance facility in the I-1 industrial zone. The Board denied the application solely because of the effect on off-site traffic coupled with ingress and egress difficulties at the site. On appeal, the Law Division reversed holding that the denial of the application was arbitrary, capricious and unreasonable. The Law Division entered an order granting the variance, and the Board and an intervenor, Joel Tanis & Sons, Inc. (Tanis), appealed. *fn1 We affirm the holding of the Law Division that the denial was arbitrary, capricious and unreasonable because the Board failed to consider whether it could reduce the detrimental effect of the proposed use by imposing reasonable conditions on the use. However, we reverse its judgment granting the variance and remand to the Board of Adjustment for reconsideration of the issue of whether reasonable conditions can be imposed sufficient to offset that detrimental effect.
The property in question, a 2.24 acre parcel of land, is owned by Wendell Realty (Wendell) and is leased to Scholastic contingent upon Scholastic obtaining a use variance and site plan approval. It is located in the I-1 industrial zone in the Borough of Fair Lawn and is designated as Lot 4 in Block 5279. Most of the property is vacant land. It has a 3,600 square foot building which Scholastic intends to use for repair of school buses and vans. On adjacent property, Tanis operates a cement plant and both the Tanis property and Lot 4 are accessed by Range Road, a "paper" street on the tax map of the Borough of Fair Lawn which intersects with River Road, a heavily traveled county road. Tanis' trucks carrying concrete use the Range Road-River Road intersection.
Range Road runs up-hill at a steep grade from the site to River Road. The only other access to River Road from the site is through Wendell Realty's other properties located on adjacent lots (Lot 1, Block 5729 and Lot 1, Block 5835). Wendell Realty, through its lease with Scholastic, has prohibited Scholastic from running its buses and vans through these other properties to access the site.
Scholastic is a regional school bus company serving school districts throughout the area. It proposes to park approximately thirty-five to forty school buses and seventy vans on the property. About eighty-five percent of these vehicles will leave the site between 6:00 a.m. and 7:00 a.m. The vehicles will return to the site between 9:05 a.m. and 9:45 a.m. They will again leave the site at 2:15 p.m. and return between 3:30 and 4:45 p.m.
Scholastic's proposed use would result in eight additional traffic movements per day at the site, four in and four out. These would include: (1) employee vehicles entering the site in the morning; (2) school buses and vans leaving the site in the morning; (3) school buses and vans returning to the site in the morning; (4) employee vehicles leaving the site in the morning; (5) employee vehicles returning to the site in the afternoon; (6) school buses and vans leaving the site in the afternoon; (7) school buses and vans returning to the site in the afternoon; and (8) employee vehicles leaving the site at the end of the day. This traffic would share Range Road with Tanis' cement trucks, that enter and exit the Tanis plant throughout the day. In December 1994, Scholastic applied to the Zoning Officer of Fair Lawn for a Certificate of Occupancy. It was denied by the Zoning Officer on the grounds that a use variance was necessary because, in his opinion, the I-1 Industrial Zone did not permit the use contemplated.
The application for a use variance for Lot 4 was bifurcated, on plaintiffs' motion, from site plan consideration of the proposed development. At the Board hearing on the variance, the applicants presented six witnesses and Tanis presented four witnesses including Richard Coppola, a licensed professional planner with extensive planning experience in New Jersey. Coppola submitted a comprehensive report which the Board received in evidence. Coppola testified that Range Road slopes downward from River Road to the entrance of the site and resembles a driveway more than a roadway. He noted that Range Road intersects River Road at a forty-five degree angle, requiring extremely sharp right turns from Range Road onto River Road, and sharp left turns from River Road onto Range Road. These conditions, he testified, make it very difficult for vehicles stopped at the top of Range Road to see traffic coming from the East on River Road. He testified that school buses and vans would have a difficult time turning out of Range Road when the Tanis cement trucks are returning to the Tanis property. Significantly, however, Coppola proposed several conditions which could alleviate these concerns. One of those was that the applicant improve the Range Road-River Road intersection.
The Board denied the variance application. In the Board's resolution memorializing its decision, it concluded that a "school bus depot is an inherently beneficial use." However, it also concluded that the negative criteria of N.J.S.A. 40:55D-70 were not met because the school vehicles would exacerbate poor traffic movements in the area and increase the risk of collision. The resolution also stated that the Board "is aware of no conditions that it can impose to reduce these detrimental effects of the proposed use variance."
The applicants filed a complaint in lieu of prerogative writs challenging the decision of the Board. The trial court reversed, finding that Scholastic did not need a use variance because the proposed use was a permitted use under the applicable ordinance. Alternatively, the court ruled that even if a use variance were necessary, the application met the positive and negative criteria to support the grant of a variance. Holding that the Board's denial was arbitrary, capricious and unreasonable, the trial court granted the variance. Tanis and the Board filed separate appeals which we consolidate for purposes of this opinion.
Preliminarily, we need not dwell on the issue of whether the proposed use was or was not a permitted use because the zoning ordinance has since been amended to specifically state that the storage and operation of trucks, buses, vans and any other vehicles, including vehicles that transport school children shall be a prohibited use in I-1 and I-2 zoned districts. In the legislative statement accompanying the amendment, Fair Lawn explained that the amendment was adopted to eliminate any perceived ambiguity in the ordinance, and to express the borough's concerns regarding "heavy concentrated periods of traffic." Pursuant to the time of decision rule, the amended ordinance governs. Kruvant v. Tp. ...