On appeal from Superior Court of New Jersey, Law Division, Passaic County, PAS-L-6003-02.
The opinion of the court was delivered by: Graves, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, S.L. Reisner and Graves.
Defendants, Zoning Board of Adjustment of the City of Clifton (the Board) and the City of Clifton (the City), appeal from an order dated October 28, 2003, remanding the application of plaintiff, House of Fire Christian Church (the Church), to the Board and invalidating an amended ordinance. The City also appeals from the trial court's determination that the City violated the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.A. §§ 2000cc to 2000cc-5, and a subsequent order dated December 16, 2003, ordering the City to pay the Church's counsel fees and costs, pursuant to 42 U.S.C.A. § 1988, in the amount of $24,167.59.
At the outset, we recognize that the order dated October 28, 2003, specifically provides that the trial court "shall retain jurisdiction over this matter as it proceeds before the Clifton Board of Adjustment." Accordingly, the order is interlocutory and not appealable as of right. See Pressler, Current N.J. Court Rules, comment 2 to R. 2:2-3 (2005).
Ordinarily, appellate courts seek to avoid "piecemeal litigation" and the "premature review of matters." Moon v. Warren Haven Nursing Home, 182 N.J. 507, 513 (2005). Nevertheless, in an effort to facilitate a fair and final resolution of the disputed issues, we hereby grant leave to appeal nunc pro tunc. R. 2:4-4(b)(2).
In 2001, the Church purchased a piece of property (the lot) in Clifton at 835 Grove Street, located within an R-A1 Single Family Residential Zone which permits a house of worship as a conditional use. The Church applied to the Board seeking variance relief so that it could demolish the existing single-family residence and construct a new church facility in its place. The Board heard testimony regarding the Church's application on five separate dates from January 2, 2002, until October 2, 2002, when the Board denied the Church's application.
The Church proposed a two-story building with a total area of 4,992 square feet (2,496 square feet on the main level and 2,496 square feet in the basement). The plan included a sanctuary on the main level with seventy seats to accommodate the Church's congregation of approximately thirty-five to forty-five members, as well as future growth. The basement plan contained four classrooms for children's Sunday school, a fellowship hall for congregants to gather after services, a small kitchen, and storage. The plan also included a parking lot with eighteen parking spaces.
At the time of the Church's application, § 461-27(B) of the Code of the City of Clifton set forth the following conditional use requirements for houses of worship located in R-A1, R-A2, and R-A3 Single Family Residential Zones:
(1) Minimum lot size: twenty thousand (20,000) square feet.
(2) Lot width: one hundred (100) feet.
(3) Lot depth: one hundred (100) feet.
(4) Front yard: twenty (20) feet.
(5) Side yard: fifteen (15) feet.
(6) Rear yard: ten (10) feet.
(7) Height: three (3) stories or thirty-five (35) feet.
(8) Coverage: thirty-five percent (35%).
(9) Off-Street Parking: one (1) space for every four (4) seats.
The Church sought variance relief from requirement (1) minimum lot size (the lot is 17,325 square feet) and requirement (2) minimum lot width (the lot is 70 feet wide).
Following the second board hearing on March 20, 2002, two events occurred that affected the Church's application. First, on April 4, 2002, the City's Principal Planner, Robert Ringleheim, increased the number of required parking spaces from eighteen (based on the proposed seventy-seat sanctuary) to thirty-five parking spaces. This increase resulted from Ringleheim's determinations that the Sunday school classrooms constituted a "private school," requiring four additional parking spaces (one space for each of the four teachers), and that the fellowship hall constituted a "meeting room" or "place of public assembly," requiring thirteen additional parking spaces (one space for each one-hundred of the 1,300 square feet). Second, on May 7, 2002, the City adopted an amendment to § 461-27(B)(6) which changed the minimum rear yard setback requirement for houses of worship from ten feet to thirty-five feet. Thus, at the time of the third board hearing on June 5, 2002, the Church's proposed plan did not contain a sufficient number of parking spaces and it did not comply with the minimum thirty-five feet rear yard setback as required by the newly amended ordinance.
The Board focused on these deficiencies throughout the remainder of the hearings, and at the final hearing, on October 2, 2002, all seven members of the Board voted to deny the Church's application. Thereafter, the Church filed a complaint in lieu of prerogative writs in the Law Division. After reviewing transcripts of the proceedings before the Board and after hearing oral argument from counsel, but without an evidentiary hearing, the trial court entered the order dated October 28, 2003, which: (1) remanded the Church's application to the Board for a consolidated hearing that will include site plan detail; (2) required the Church to provide one parking space per four seats of congregation, without additional consideration for accessory uses; (3) invalidated the amended ordinance changing the rear yard setback requirement; (4) determined that the City violated RLUIPA; and (5) ordered the City to pay the Church's counsel fees and costs for violating RLUIPA. We now affirm the remand to the Board, but we reverse the invalidation of the amended ordinance, the determination that the City violated RLUIPA, and the award of counsel fees and costs to the Church.
The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136, authorizes local boards of adjustment to allow departures (variances) from the requirements of a zoning ordinance pursuant to N.J.S.A. 40:55D-70. Municipal boards of adjustment have broad discretion in reviewing applications for variances, and their decisions are presumptively valid. Courts must not substitute their judgment for that of a board, but the decision to grant or deny a variance can be set aside if it is arbitrary, capricious, or unreasonable, or not supported by the evidence in the record. Cell South of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor Tp., 172 N.J. 75, 81 (2002); Macedonian Orthodox Church v. Plan. Bd. of Tp. of Randolph, 269 N.J. Super. 562, 572 (App. Div. 1994); Trinity Baptist Church of Hackensack v. Louis Scott Holding Co., 219 N.J. Super. 490, 498 (App. Div. 1987).
"Generally, a conditional use is 'suitable to a zoning district but not to every location within that district.'" Coventry Square, Inc. v. Westwood Zoning Bd. of Adj., 138 N.J. 285, 294 (1994) (quoting Cardinal Props. v. Borough of Westwood, 227 N.J. Super. 284, 287 (App. Div. 1988)). "Conditional uses are 'uses ordinarily requiring special standards relating to traffic patterns, street access, parking, and the like in order to assure their functional and physical compatibility with the district as a whole and their appropriate integration into the district.'" Ibid. (quoting Exxon Co., U.S.A. v. Tp. of Livingston, 199 N.J. Super. 470, 477 (App. Div. 1985)). See also N.J.S.A. 40:55D-3 (defining term "conditional use"). It should be noted that "a conditional use applicant's inability to comply with some of the ordinance's conditions need not materially affect the appropriateness of the site for the conditional use." Coventry Square, supra, 138 N.J. at 297.
In order to obtain a conditional use variance pursuant to N.J.S.A. 40:55D-70(d)(3), an applicant has the burden of showing both positive and negative criteria. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 323 (1998). Generally, to satisfy the positive criteria, the applicant must establish "special reasons," (i.e., that "the use promotes the general welfare because the proposed site is particularly suitable for the proposed use"). Ibid. (quoting Medici v. BPR Co., 107 N.J. 1, 4 (1987)). Satisfaction of the negative criteria requires that, "in addition to proving that the variance can be granted 'without substantial detriment to the public good,' an applicant must demonstrate through 'an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.'" Ibid. (alteration in original) (quoting Medici, supra, 107 N.J. at 22, n.12, 21). See also Coventry Square, supra, 138 N.J. at 299 (establishing standard related to positive and negative criteria for conditional use variances).
"If, however, the proposed use is inherently beneficial, an applicant's burden of proof is significantly lessened." Smart, supra, 152 N.J. at 323 (citation omitted). Not only does "[a]n inherently beneficial use presumptively satisf[y] the positive criteria," but "satisfaction of the negative criteria does not depend on an enhanced quality of proof." Ibid. (citations omitted). "Instead, grant of the variance depends on balancing the positive and negative criteria." Id. at 324 (citation omitted). In this case, all parties agree that construction of a church is an inherently beneficial use of the land. See State v. Cameron, 100 N.J. 586, 606 (1985) (Clifford, J., concurring) ("[C]courts have held that religious activity itself is in furtherance of public morals and the general welfare, and that religious institutions enjoy a highly-favored and protected status, which severely curtails the permissible extent of governmental regulation in this area." (internal quotation marks and citations omitted)). Thus, the Church met the burden of proving the positive criteria, and the Board was required to engage in a balancing of the positive and negative criteria.
In Sica v. Board of Adjustment of Township of Wall, 127 N.J. 152, 165 (1992), the Court "suggest[ed] the following procedure as a general guide to municipal boards when ...