On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, MID-L-10176-02.
Before Judges King, Lintner and S.L. Reisner.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The Planning Board of South Amboy (Planning Board) urges a reversal of the Law Division's decision that the respondent, Alan Meszaros, is entitled to conditional use approval to build a two-family dwelling in a single-family residential zone in South Amboy. The Planning Board had denied conditional use approval. Based on the law of conditional uses and the statutory allocation of authority between planning boards and zoning boards, we vacate the decisions of the Planning Board and Law Division and direct Meszaros to pursue a new application before the Zoning Board.
This is the procedural history. On April 15, 2002 Meszaros applied for conditional use approval from the Planning Board to build a two-family residence in a single-family residential zone. After public hearings on May 20, June 26, and July 24, 2002 the Planning Board denied Meszaros' application. On November 7, 2002 Meszaros filed an action in lieu of prerogative writ in the Law Division in Middlesex County, see R. 4:69-1, and on December 6, 2002 the Planning Board answered. On June 18, 2003 after a bench trial the Law Division reversed the Planning Board's decision and entered an order to that effect (June 18, 2003 Order). The Law Division remanded the case to the Planning Board to:
adopt a resolution granting [Meszaros'] development application for conditional use approval for a two-family residence with relief pursuant to [N.J.S.A. 40:55D-36] together with any reasonable conditions relating to said approval within 45 days of the date hereof[.]
The Law Division retained jurisdiction for objections to any conditions the Board established.
The Planning Board filed a notice of appeal with this court on August 13, 2003. There is no cross-appeal. The Planning Board apparently has taken no action to comply with the June 18, 2003 order pending appeal.
The Planning Board raises the following points for reversal:
THE TRIAL COURT ERRED IN NOT PROPERLY FINDING THAT:
A. Lot 28.01 is not a separate lot for land use purposes; it is a component of a single property comprised of same and Lots 22.01/22.02.
B. The Plaintiff did not apply for, advertise for, notice for, or address variances and other relief required in addition to Conditional Use Approval.
C. The Defendant Board properly denied Plaintiff's Application.
THE PLAINTIFF WAS PROPERLY DENIED RELIEF PURSUANT TO N.J.S.A. 40:55D-36.
Because the Law Division's prerogative writ jurisdiction stems from its inherent power and from constitutional imperative, the Law Division can review the facts of the case and make independent findings where necessary. See Pressler, New Jersey Court Rules, Comment 5 to R. 4:69. Still, the role of this court is to determine whether the Board's actions were arbitrary, capricious or unreasonable. Substantial deference is given to the Planning Board's factual findings, but its legal conclusions are entitled to no special deference. See ibid. (citing, inter alia, Cell v. Zoning Bd. of Adjustment, 172 N.J. 75, 81-82 (2002); New Brunswick Cellular v. Bd. of Adj., 160 N.J. 1, 14 (1999)). A denial of a variance is entitled to greater deference than a board's decision to grant a variance. Id. (citing, inter alia, Omnipoint v. Bd. of Adjustment, 337 N.J. Super. 398, 416 (App. Div.), certif. denied 169 N.J. 607 (2001)). If the record of the local agency differs from the resolution memorializing the local agency's action, the record is given controlling effect. Id. (citing Fieramosca v. Barnegat Tp., 335 N.J. Super. 526, 533-534 (Law Div. 2000)).
As this is a review of a bench trial, the following facts are based on available pleadings and the Board and trial records. At issue are three parcels of land in South Amboy. Lots 22.01 and 22.02 are adjacent parcels on State Highway 35. They are in the B-2 highway commercial zone. For years Meszaros has owned these properties. He operates a nightclub on them called the Music Box. For the nightclub, there is a parking lot on the premises.
Behind Lots 22.01 and 22.02 is former Lot 28, zoned single family residential. Meszaros owned no part of Lot 28 prior to 1980. In 1980, Meszaros and the owner of Lot 28 made an agreement whereby Meszaros would receive a subdivided free-standing 100' by 110' portion of Lot 28. The subdivision application was approved, and Meszaros' portion of Lot 28 became Lot 28.01, still single-family residential. Thus, after 1980, Meszaros possessed Lots 22.01 and 22.02, zoned highway commercial, and Lot 28.01, zoned single-family residential. Lot 28.01 was landlocked. Music Box's parking lot was situated between Lot 28.01 and Route 35.
On April 15, 2002 Meszaros applied for conditional use approval to build a two-family residence on the single-family residential Lot 28.01. He filed his application with the Planning Board, not the Zoning Board of Adjustment.*fn1 He submitted site plans drafted by R.W. Dill, an architect, to illustrate his proposal. He also gave notice of his application to surrounding property owners.
The conditional use is the successor to the now-defunct"special exception use." William M. Cox, New Jersey Zoning and Land Use Administration, § 17.1, at 419 (Gann 2004). The Municipal Land Use Law (MLUL) defines a conditional use as: a use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use ...