March 17, 2008
HOLLY GLAZE DONAHUE, PLAINTIFF-APPELLANT,
TOWNSHIP OF DEPTFORD PLANNING BOARD, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1501-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 26, 2008
Before Judges Winkelstein and Yannotti.
Plaintiff Holly Glaze Donohue appeals from an order entered on March 30, 2007, which affirmed the approval by the Deptford Township Planning Board (Board) of an application by the Guru Nank Sikh Society (Society) of Delaware Valley for preliminary and final site plan approval, and conditional use approval. We affirm.
The Society filed an application with the Board for approval of a plan to construct a temple and related buildings on a parcel of property in the Township. Section 8(B)(1)(b) of the Township's zoning ordinance provides that places of religious worship are permitted in the R-40 Low Density Residential District as conditional uses, upon a determination by the Board that the use can be provided in a manner that will: minimize the impact upon adjacent properties; be compatible with the surrounding neighborhood; not unduly burden adjacent areas with increased traffic, noise, or threats to the public health and safety; and conform to the standards in section 61 of the ordinance.
On July 12, 2006, the Board conducted a public hearing on the application. Plaintiff opposed the application, and argued that it did not comply with the standards in section 61 of the ordinance. Section 61(A)(1) provides that a place of religious worship qualifies as a conditional use if:
a. [t]he use occurs on a lot of two (2) acres or more in area.
b. [e]ach lot used for this purpose shall have a minimum street frontage and lot width of two hundred (200) feet.
c. [n]o structure shall be provided within seventy-five (75) feet of a public street or property line.
d. [t]he maximum permitted building coverage shall not exceed twenty percent (20%).
e. [t]he maximum permitted impervious coverage shall not exceed fifty percent (50%).
f. [t]he twenty-five (25) feet closest to the property line or the public street shall be bermed and landscaped so as to screen the use from view.
g. [t]he maximum height of any structure shall not exceed thirty-five (35) feet except that a steeple may extend to a height of sixty (60) feet.
h. [o]ff-street parking shall be provided in a side or rear yard, as required by [Section] 27 [of the ordinance].
Section 27(D)(5) requires that a place of worship have one parking space for "every sixty (60) square feet of floor area devoted to patron use or one (1) space per every four (4) permanently fixed seats."
Plaintiff asserted that the application failed to comply with section 61(A)(1)(f) because the property would be "bermed and landscaped" only on the front of the lot adjacent to the public street. Plaintiff also asserted that the plan failed to provide the amount of parking spaces required by section 27 of the ordinance. Plaintiff claimed that, because the application did not conform to the conditional use criteria, the Board did not have jurisdiction to entertain the application.
The Board voted to reject these contentions and approved the plan. In a resolution adopted on August 9, 2006, that memorialized its decision, the Board found that the ordinance only required the first twenty-five feet of the edge of the front of the property to be bermed and landscaped. The Board additionally found that the proposed parking complied with the requirements of the ordinance. The Board determined that the dining hall area should not be included in the calculation of the required number of parking spaces because the dining hall and the prayer hall "would not be utilized concurrently" and "the dining hall itself would not generate any additional traffic to and from the site requiring additional parking." The Board determined that the site plan was in full compliance with the Township's ordinances and "no variances were requested or required."
On September 21, 2006, plaintiff filed an action in lieu of prerogative writs in the Law Division, alleging that the Board's action was arbitrary, capricious and unreasonable. Judge Georgia M. Curio considered the matter on March 8, 2007. After hearing argument, the judge placed her decision on the record. Judge Curio found that the Township's ordinance did not require that the property be bermed and landscaped on "each and every property line." The judge concluded that the Board's interpretation of the relevant provision of the "ordinance was the correct one."
The judge also found that the Board had properly excluded the dining hall area in calculating the number of parking spaces required. The judge noted that the evidence presented to the Board established that the prayer hall and the dining hall would not be used by patrons at the same time. The judge observed that:
[it is] not strictly a calculation of the existing square feet of a building. It has to do with usage. This [B]oard heard testimony to that effect, and in fact[,] testimony from its own professionals supporting the calculation. And so, to say that there's not sufficient evidence is not appropriate. There was sufficient evidence, and therefore the [Board's] decision was not arbitrary, unreasonable or capricious in that regard.
The judge entered an order on March 30, 2007, affirming the Board's decision. This appeal followed.
Plaintiff raises the following arguments for our consideration:
I. The court erred in determining that the Planning Board did not act arbitrarily and capriciously. The court must determine whether the Board below followed the statutory guidelines and properly exercised its discretion.
II. The court erred in determining that defendant, Deptford Township Planning Board, had jurisdiction over conditional use applications where the application does not comply with the conditions and standards for the location or operation of such use as contained in the zoning ordinance.
III. The court erred in determining that the Deptford Township Planning Board did not act arbitrarily and capriciously in determining that the applicant's site plan did not require a variance from the Deptford Township Unified Development Ordinance, Section [61(A)(1)(f)].
IV. The court erred in determining that the defendant, Deptford Township Planning Board, did not act arbitrarily and capriciously in determining that the applicant's site plan did not require a variance from the Deptford Township Unified Development Ordinance, Sections [61(A)(1)(h)] and [27(D)(5)].
We have carefully considered the record in light of the arguments raised by plaintiff and the applicable law. We are convinced that plaintiff's contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We affirm substantially for the reasons stated by Judge Curio in the thorough and comprehensive oral decision that she placed on the record on March 8, 2006.
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