Before Judges Havey, Wells and Payne. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket Number L-3853-00.
The opinion of the court was delivered by: Havey, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2002
Plaintiff Meridian Quality Care, Inc. (Meridian) appeals from a judgment sustaining the denial of its conditional-use variance and site plan applications by defendant Board of Adjustment of the Township of Wall (Board). Meridian seeks to construct an assisted living, skilled nursing facility on its site, situate in a zone district designating such a facility as a permitted, conditional use. A variance was required under N.J.S.A. 40:55D-70d(3) because Meridian could not comply with the conditional-use standard requiring access to a secondary arterial road. After Meridian bifurcated its application, see N.J.S.A. 40:55D-76b, the Board granted the conditional-use variance, conditioned upon approval of Meridian's site plan. The Board rejected the site plan because of concerns about noise levels and odors emanating from the proposed facility. It therefore denied both the conditional-use variance and site plan applications.
We reverse. In a bifurcated application, the Board may grant a use variance under N.J.S.A. 40:55D-70d, conditioned upon grant of a subsequent site plan application. However:
No such subsequent [site plan] approval shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance. [N.J.S.A. 40:55D-76b.]
This language tracks the negative criteria language found in N.J.S.A. 40:55D-70d. In this case, the Board failed to apply the modified standard of review as to the negative criteria governing conditional-use variance applications. See Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 298-99 (1994). It also exceeded the appropriate scope of review in denying the site plan application. Thus, its denial of Meridian's applications was arbitrary, capricious and unreasonable.
Meridian is the owner of a 13.729 acre parcel of vacant land designated as block 267, lot 11, on the Wall Township Tax Map. The subject property is situate in the OP-2 (office park) zone district. It adjoins: (1) New Jersey State Highway 138 to the south; (2) vacant land characterized as freshwater wetlands to the west; (3) a single-family residential development to the north; and (4) New Bedford Road to the east. The Township's zoning ordinance denotes "Nursing and Personal Care Facilities," as permitted, conditional uses in the OP-2 zone.
Meridian applied to the Board for a conditional-use variance, site plan approval and two minor bulk variances to construct a 130-bed assisted living, skilled nursing care facility on the site. A conditional-use variance was necessary because Meridian was not able to meet the ordinance standard requiring the site to have direct access to a "secondary arterial road." State Highway 138, abutting the site, is a designated secondary arterial road. However, Meridian was unable to secure an access permit from the State Department of Transportation because of the site's proximity to the New Bedford Road and Route 18 jug handle. Therefore, Meridian's only means of ingress and egress is New Bedford Road.
Meridian's proposed two-story, 56,184 square-foot structure is of residential design so as to harmonize with the residential neighborhood to the north of the site. The front of the facility and main entrance face State Highway 138. Sixty-four of the proposed ninety-four parking stalls and a detention basin are situate in the front, southerly side of the proposed building.
To the north, or rear of the building, twenty parking stalls are planned. *fn1 Also to the rear of the building the plan envisions passenger-loading and ambulance drop-off areas, a delivery truck loading zone, an electrical transformer and switch gear, and a garbage compactor covered by a concrete enclosure. A Meridian representative testified that there would be no more than four truck deliveries per week, and that, based on Meridian's prior experience at other facilities, she expected only one ambulance visit per month.
The Township's land use regulations require a minimum buffer of fifty feet. However, Meridian's plan calls for a seventy-five foot buffer, including a fifty-foot shade tree and vegetation area along the northerly lot line for the purpose of creating a "visual break" between the proposed structure and the residential dwellings to the north. Meridian also agreed to construct a six- foot board-on-board fence along the entire northerly boundary line.
The planned entrance to the facility is on the north-east corner of the site off New Bedford Road. A twenty-five foot wide driveway circles the proposed structure. *fn2 The site plan provides for a ten-foot dedication on the westerly side of New Bedford Road in order to create a turning lane into the site.
Objectors, residents in the neighborhood to the north of the site, expressed concern about excessive noise from the exterior electrical equipment and individual air conditioners of the residents, truck traffic, and odors that may emanate from the facility's kitchen. Between the successive five hearings conducted on the application, Meridian representatives met with the Board's Technical Review Committee to address these concerns and others raised by Board members.
During the second night of the hearing, Meridian's counsel advised the Board that Meridian was bifurcating its conditional- use variance and site plan applications so that it could proceed with the variance application while it modified its site plan to address the concerns raised by the objectors and Board members. The matter proceeded as a bifurcated case, with the understanding that any approval of the conditional-use variance would be conditioned upon the Board's consideration of the revised site plan submitted by Meridian.
John Rea, Meridian's traffic expert, testified that Meridian's inability to meet the arterial road condition of the zoning ordinance was of no consequence because New Bedford Road, to which Meridian had access, was essentially an arterial road because of its heavy traffic flow. Meridian's engineer, Jeromie Lange, described the revisions to the site plan. At the request of the Technical Review Committee, the six-foot board-on-board fence was relocated from the northerly property line to south of the fifty-foot tree and vegetation buffer. The exterior generator and switch gear were moved further south toward the proposed structure. The garbage compressor was moved from the north to the south side of the loading zone. At some point Meridian also agreed to a recommendation by the Technical Review Committee to relocate a row of parking stalls from the northerly part of the site to its south-easterly corner.
Meridian's architect and engineer addressed at length comments from Board members and objectors that the structure should be reversed or "flipped," redesigned, reduced in size, or moved toward the westerly boundary line. The experts explained that such changes were contrary to sound planning, counterproductive, or prevented by environmental constraints.
By written resolution, the Board denied the site plan and, "[i]n light of the fact that the approval of the [conditional] use variance was conditioned on the approval of the site plan, the [conditional] use variance is also denied." The Board acknowledged that Meridian's proposal was an inherently beneficial use. However, it noted that Meridian's application had been bifurcated and that the Board "could grant a variance for the one condition that [Meridian] failed to meet for this conditional use, subject to an appropriate site plan that would not adversely impact the surrounding properties."
The Board concluded that Meridian had "failed to meet its burden of establishing that the use, implemented through the proposed site plan, would not create a substantial detriment to the neighboring residential properties." Specifically, "[t]he Board believed that the negative impacts could be reduced by the imposition of conditions essentially requiring some re-design of the site to move the offensive elements of the site further from the adjoining residential properties." It added that "because the Board found that the applicant failed to establish that the proposed layout of the site would not constitute a substantial detriment and because applicant refused to offer alternative layouts, the Board is compelled to deny the application." The Board also based its denial on the fact that Meridian refused to present additional expert testimony regarding the Board's concern with respect to noise levels relating to the electrical equipment in residents' air conditioners, and odors emanating from the facility's kitchen.
In affirming the Board's denial, the trial court cited N.J.S.A. 40:55D-76b governing bifurcated cases, and upheld the Board's determination that Meridian's facility could be redesigned to eliminate the negative impact that noise and odors will have on the surrounding community, observing that, "[t]he Board, as members of the community, are in the best position to evaluate the concerns of the community."
It is well settled that a court may not "substitute its judgment for that of a board 'even when it is doubtful about the wisdom of the action.'" Cell So. of New Jersey v. Zoning Board of Adjustment, 172 N.J. 75, 81 (2002) (quoting Cellular Tel. Co. v. Zoning Bd. of Adjustment, 90 F.Supp.2d 557, 563 (D.N.J. 2000)). Courts will defer to the board's decision if it is "supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to ...