December 5, 2007
BOBEL, LLP, AND LIBERTY LINCOLN MERCURY, INC., PLAINTIFFS-APPELLANTS,
THE PLANNING BOARD OF THE CITY OF CLIFTON, AND MCP ASSOCIATES, LP, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3448-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 13, 2007
Before Judges Weissbard and Gilroy.
Plaintiffs, Bobel, LLP, and Liberty Lincoln Mercury, Inc., appeal from the January 29, 2007, order of the Law Division that dismissed their complaint in lieu of prerogative writs, challenging the Planning Board of the City of Clifton's (Board) grant of various land use approvals to defendant MCP Associates, LP for a 1.236 acre tract of land located at 790 Route 3 West,*fn1 or Block 80.01, Lot 15, in the City of Clifton (the Property). We affirm.
The Property is located in the Planned Development-Highway Commercial Highway Planned Zone (PD-HC Zone). The Property lies between two roadways, Allwood Road to its north and State Highway Route No. 3 to its south. The Property is occupied by a single building, which is presently vacant, but was last used as an automobile dealership, a non-permitted use under the present zoning ordinance. The building is approximately 330 feet long as measured in an north-south direction, with a 30,000 square footprint covering 56% of the Property. The portion of the building fronting Route 3 is two stories in height, while the rear portion is only one story. In contravention of the twenty- five-foot side yard setback requirement of the zoning ordinance, the westerly wall of the building is only 1.6 to 1.9 feet from the adjoining property line of Block 80.01, Lot 11.02, owned by Bobel, and occupied and used by Liberty Lincoln as an automobile dealership. In addition to the side yard setback, there now exists ten other deviations from the bulk requirements of the zoning ordinance.
On June 29, 2005, MCP applied to the Board for preliminary and final site plan approvals, together with bulk variances and design/submission waivers. Under the application, MCP sought to demolish part of the existing building and to convert and modernize the remaining portion of the building into a 17,000 square foot retail structure, containing five retail stores. Retail use is a permitted use in the PD-HC Zone. Under MCP's plan, the building would be demolished, except for approximately 210 feet of the westerly wall and part of the roof, which would be incorporated into the new structure. The new structure would be one story in height, reducing the footprint of the building from 30,000 square feet to 17,000 square feet. Lastly, the bulk deviations from the zoning ordinance would be reduced from eleven to five.
On May 25, 2006, the Board approved the application. A confirming resolution was adopted by the Board on June 22, 2006.
Thereafter, plaintiffs filed their complaint in lieu of prerogative writs, challenging the decision of the Board. On January 16, 2007, Judge Passero rendered an oral opinion, affirming the Board's decision and dismissing the complaint. A confirming order was entered on January 29, 2007. Plaintiffs appeal only from that part of the order affirming the Board's grant of the bulk side yard variance, permitting a portion of existing wall to remain in its present location, 1.6 to 1.9 feet from their property line.
On appeal, plaintiffs argue:
THE PROOFS PRODUCED BY M.C.P. DO NOT MEET THE STANDARDS OF N.J.S.A. 40:55[D]-70c.(1) or (2).
THE RESOLUTION OF THE DEFENDANT PLANNING BOARD IS INADEQUATE.
On appeal from a decision of a municipal board on zoning and planning matters, the trial court is limited to determining whether the Board's decision was arbitrary, capricious or unreasonable. Cell S. of N.J., Inc. v Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002); Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965). A local board's decision is presumed valid, and the party challenging the decision has the burden proving otherwise. Cell S., supra, 172 N.J. at 81.
In reviewing a local decision, the court must determine whether the board followed the statutory guidelines and properly exercised its discretion. Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 385 (1990). Because variances tend to impair sound zoning, a court should give "greater deference to variance denials than to grants of variances." Med. Ctr. at Princeton v. Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001). The standard of review is the same for both the Law Division and the appellate tribunal. Bressman v. Gash, 131 N.J. 517, 528-29 (1993).
We have carefully considered plaintiffs' arguments in light of the applicable law and the briefs. We are not persuaded by the arguments and affirm substantially for the reasons expressed by Judge Passero in his thoughtful and comprehensive, oral opinion of January 16, 2007. R. 2:11-3(e)(1)(A).