On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-1267-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Payne.
Plaintiff Joseph Melito appeals from the Law Division's November 3, 2006 order entering judgment affirming the decision of the Township of Marlboro Zoning Board of Adjustment (Board) denying plaintiff's application for a use variance pursuant to N.J.S.A. 40:55D-70(d)(1) to operate an automobile repair facility on his property, located in a residential zone, and dismissing with prejudice his complaint in lieu of prerogative writs challenging the Board's action.
The subject property, 146 Texas Road, is a 1.78 acre quadrilateral-shaped parcel located in the R-60 Residential District of Marlboro Township. The property is developed with a two-story single-family dwelling, a three-bay garage, a single story masonry garage, two masonry sheds, and one wooden shed. Appellant's initial variance application had sought approval for operation of an automobile repair facility and ancillary business uses such as towing, snow plowing, and excavation. During the fifth day of hearings before the Board, appellant amended his variance application, limiting the proposed use to automobile repair. He sought to use the existing three-bay garage to accommodate no more than five vehicles per day, with no signage placed on the property, and with himself as the sole employee of the operation.
Appellant testified and presented the expert testimony of James Kennedy, a professional engineer, and James W. Higgins, a professional planner. He argued the property was particularly suited for his proposed limited automobile repair use because it was relatively isolated by woodlands surrounding the site and could be further screened, would retain its residential character by utilizing the existing garage and not utilizing signage, and there were several other non-residential and non-conforming uses in the area. Thus appellant argued the proposed use satisfied the positive and negative criteria required for a use variance pursuant to N.J.S.A. 40:55D-70(d).
Several of appellant's neighbors appeared in opposition to the application. Mr. Howley testified that the sustained growth in residences constructed in the area demonstrated the vitality of the R-60 zoning for residential uses, as evidenced by approval of applications for l459 residential units within a one-mile perimeter of the site from January 2000 to December 2004. The owner of the undeveloped lot adjacent to the rear of appellant's property, who had a pending application for the construction of four homes, testified that only three feet would separate the proposed residences from the three-bay automobile repair garage, and that any two-story home built on his lot would have a direct view of appellant's automobile repair shop due to the topography of the lots.
Jennifer Beahm, a subcommittee member who participated in the 2005 Master Plan preparation, testified that the area in which the property was located was evaluated through the Master Plan process and determined still to be appropriate for residential development. Several Board members expressed concern about appellant's proposed commercial use contravening the intent of the Master Plan to continue the residential character of the area, creating a "substantial negative" in terms of noise and pollution, and adversely impacting potential new homeowners on the adjacent rear lot.
Based on the testimony and evidence presented during the lengthy hearings, the Board denied appellant's variance application in a 4-3 vote, which was one vote short of the "supermajority" required for the approval of a use variance. N.J.S.A. 40:55D-70(d) (a variance under this section shall be granted only by affirmative vote of at least five members of the Board). On February 21, 2006, the Board adopted a resolution memorializing its decision.
Appellant filed a complaint in lieu of prerogative writs challenging the Board's denial of his application. Following oral argument, Judge Lehrer issued a comprehensive nineteen-page letter opinion on October l9, 2006, declining to reverse the Board's determination as arbitrary and capricious, finding the Board had a reasonable basis in the record to conclude that appellant's application failed to satisfy his burden of proof on both the positive and negative criteria for a use variance pursuant to N.J.S.A. 40:55D-70(d). On November 3, 2006, the Law Division entered a final judgment affirming the Board's decision and dismissing appellant's complaint. This appeal ensued.
On appeal, Melito argues:
THE ZONING BOARD'S DENIAL OF PLAINTIFF'S APPLICATION FOR A USE VARIANCE TO OPERATE A LIMITED AUTO-REPAIR FACILITY WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE BECAUSE THE ZONING BOARD FAILED TO PROPERLY CONSIDER THE STATUTORY CRITERIA AS IT APPLIED TO PLAINTIFF'S PROPOSED USE AND INSTEAD FOCUSED ON ENFORCEMENT ISSUES THAT WERE RELATED TO PLAINTIFF'S PRIOR USE OF HIS PROPERTY.
A. The Zoning Board's Conclusion that Plaintiff's Property Did Not Satisfy the Positive Criteria For a Use Variance Was Not Supported By Substantial Evidence as The Overwhelming Evidence Demonstrated that Plaintiff's Property Was ...