November 9, 2007
FLOPARK COMPANY, LLC, PLAINTIFF-APPELLANT,
BOARD OF ADJUSTMENT, BOROUGH OF FLORHAM PARK, DEFENDANT, AND LIFE TIME FITNESS, INC. DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-660-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 30, 2007
Before Judges Coburn, Fuentes and Grall.
Defendant Life Time Fitness, Inc. ("Life Time") applied to defendant Board of Adjustment of Florham Park (the "Board") for a use variance, N.J.S.A. 40:55D-70(d). Under the express authority provided by N.J.S.A. 40:55D-76(b), Life Time elected to limit its application to the desired use variance and to later pursue site plan approval before the local planning board. Plaintiff, Flopark Company, L.L.C. ("Flopark") actively opposed the application before the Board.
After numerous hearings, the Board voted unanimously to grant the use variance. The Board's twenty-five page resolution carefully reviewed the facts, responded to the arguments offered by Flopark, and provided findings and conclusions fully satisfying the relevant statutory standards for the grant of a use variance. Nonetheless, Flopark sought judicial relief by way of an action in lieu of prerogative writs. The case was heard by Judge Bozonelis, who ruled in favor of Life Time in a thorough and well-reasoned oral opinion delivered on August 4, 2006.
On appeal, Flopark offers the following arguments:
THE TRIAL COURT DECISION AFFIRMING THE GRANT OF THE USE VARIANCE WAS ERRONEOUS BECAUSE SPECIAL REASONS WERE NOT PROVED.
A. Positive Criteria/Special Reasons Treatment By Trial Court.
B. The Board Of Adjustment Findings Similarly Do Not Provide The Basis For Granting The Positive Special Reasons Use Variance.
C. Promoting Recreational Uses In General Is Insufficient To Support The Positive Criteria.
D. Standard of Proof.
THE APPLICANT FAILED TO SATISFY THE ENHANCED QUALITY OF PROOF STANDARD SET FORTH IN MEDICI AND THEREFORE THE APPLICATION SHOULD HAVE BEEN DENIED.
THE APPLICANT FAILED TO PROVE THAT THE NEGATIVE CRITERIA UNDER THE STATUTE AND THE GRANT OF THE USE VARIANCE AND AFFIRMANCE BY THE TRIAL COURT SHOULD BE REVERSED.
A. The Proposal is Substantially Detrimental to the Public Good.
B. There Are Substantial Inconsistencies With the Zone Plan And Thus The Applicant Failed to Satisfy the Negative Criteria.
APPROVAL OF THE APPLICATION WAS IMPROPERLY BIFURCATED.
APPROVAL OF THE APPLICATION IS AN UNLAWFUL REZONING OF THE PROPERTY WHICH EXCEEDS THE JURISDICTION OF THE BOARD.
THE BOARD PROFESSIONALS WERE NOT SWORN AND THE FAILURE TO SWEAR IN THE WITNESSES REQUIRES REVERSAL.
After carefully considering the record, briefs, and oral arguments, we affirm substantially for the reasons expressed by Judge Bozonelis. However, we add the following comments.
Subject to site plan approval, the use variance permits construction of a 111,000 square foot health and fitness center, with a variety of incidental and accessory uses. The cite is a 33.2 acre tract of land located in the C-1 zone. The uses allowed in the C-1 zone are municipal uses, general business offices, non-hazardous laboratories, and light manufacturing. The C-1 zone is fully developed with the exception of this parcel, which is less than ten percent of the zone. Although the activities proposed for the site differ from those being conducted in the other C-1 buildings, the proposed building is similar to the other buildings. If this business use failed, the building could be easily converted into an office building, which, of course, is one of the permitted uses. The nearest residential properties are located about 1,500 feet from the site.
We incorporate by reference the Board's findings with respect to the many advantages provided by allowing this use and the complete absence of any negative affects, except perhaps to the appellant's business, which may suffer economically from the competition.
Decisions of a board of adjustment are presumptively correct. Bierce v. Gross, 47 N.J. Super. 148, 157 (App. Div. 1957). The burden of proving the board wrong is on the person or entity opposing the decision. Ibid. A court may not reverse a board of adjustment unless its decision is arbitrary, capricious and unreasonable. Rowatti v. Gonchar, 101 N.J. 46, 52 (1985).
Judge Bozonelis carefully applied those principles to the case at hand. There is no basis whatsoever for reversal of his determinations that the Board's decision demonstrated that both the positive and negative criteria of N.J.S.A. 40:55D-70(d) were fully satisfied, and that the property is particularly suited for the use granted. As the judge found, the Board's decision fully complied with the principles governing consideration of use variances. Medici v. BPR, 107 N.J. 1, 9-24 (1987).
Judge Bozonelis was also correct in ruling that the Board's decision agreeing to bifurcate use approval from site plan approval fell well within its discretion. The primary decisions on which Flopark relies, Scholastic Bus Co., Inc. v. Zoning Bd. of Borough of Fairlawn, 326 N.J. Super. 49 (App. Div. 1999), and House of Fire Christian Church v. Zoning Bd. of Adjustment of City of Clifton, 379 N.J. Super. 526 (App. Div. 2005), are clearly distinguishable, as Judge Bozonelis demonstrated in his oral opinion. The subjects in question under this point -parking, the amount of traffic and its movement - were thoroughly explored in extensive, professional testimony before the Board. The Board's decision in that regard is unimpeachable in a court of law.
Lastly, although the Board engineer's comments might better have been received under oath, there was no objection, and we perceive no plain error in this context. Furthermore, his remarks were really simply comments on sworn testimony provided by another witness called by the Board, who did testify under oath.
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