On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-6044-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges Lintner, Parrillo and Alvarez.
Plaintiff, Metro Assets I, Inc., LLC, appeals from a judgment entered after trial in an action in lieu of prerogative writs which challenged defendant Planning Board of Ridgefield's (Planning Board) decision to grant site plan approval and bulk variance relief to defendant Route 46 Auto Repair, Inc. (Auto Repair). The Borough of Ridgefield was also a named defendant. We concur with the trial judge that the Planning Board's action was not arbitrary, capricious or unreasonable.
Auto Repair has maintained a truck repair business at its current location on Lot 2 for more than twenty years. It obtained a judgment in 1997 against the Zoning Board of Ridgefield that its use of Lot 2 as an automotive service station and repair garage was permitted in the commercial-hotel (C-H) zone. Years later, following four hearings before the Planning Board, beginning in November 2004 and ending in April 2005, Auto Repair obtained site plan approval and bulk variance relief to construct a two-story truck repair building with storage, office space and parking at its present location after the demolition of existing facilities. Its purpose in doing so was to upgrade its facilities on its present site and the adjoining Lot 3, not to expand them. Currently, repair work is conducted outdoors, and new buildings would enable mechanics to work indoors. Various experts testified on behalf of Auto Repair that the demolition of the current structures and the erection of new buildings will make the site better suited for its use and improve its appearance. The experts included: Kenneth Job, a licensed engineer; Hal Simoff, a licensed engineer and licensed planner; Blaine Fresco, a geologist; Jill Hartmann, a licensed planner; and Riva Sloan, a licensed architect. The adjoining lot purchased by Auto Repair, Lot 3, was once the location of a gas station. Due to the resulting soil contamination, the Department of Environmental Protection required that it be encapsulated in impervious asphalt.
Plaintiff is a competitor who owns lands on an adjacent lot. It has standing in the matter, as it is an "interested party" under N.J.S.A. 40:55D-4.
On judicial review, factual determinations made by a "planning board are presumed to be valid." Fallone Props., L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 560 (App. Div. 2004) (citing Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990); Rowatti v. Gonchar, 101 N.J. 46, 51-52 (1985)). Decisions made based on those determinations will not be overturned unless arbitrary, capricious or unreasonable. N.Y. SMSA, L.P. v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004) (citing Charlie Brown of Chatham, Inc. v. Bd. of Adj. of Chatham, 202 N.J. Super. 312, 321 (App. Div. 1985)). It is the moving party's burden to demonstrate that a board's decision was arbitrary and capricious. Cell S. of N.J. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81-82 (2002). In the review process, however, a court will not substitute its judgment for that of a board. Fallone, supra, 369 N.J. Super. at 561 (citing Kaufmann v. Plan. Bd. for Warren Twp., 110 N.J. 551, 558 (1988)). Our function is to determine whether the Planning Board followed "statutory guidelines and properly exercised its discretion." Ibid. (citing Burbridge, supra, 117 N.J. at 384-85).
Plaintiff contends first, that the Planning Board lacked jurisdiction over the application because parking would be the principal use of Lot 3, and thus Lot 3 required a use variance which can only be granted by the Board of Adjustment. See N.J.S.A. 40:55D-70(d)(1). The testimony of Auto Repair's owner, however, established that both lots were to be used for truck repair. Therefore, any consideration of parking issues from the inception of the application was for a use attendant to the structure. Moreover, at the final meeting Auto Repair agreed, because of plaintiff's concerns and those voiced by the Planning Board, to merge the two lots. No separate use variance was required. As the trial judge said: the Board has jurisdiction over . . . Auto Repair's application because Auto Repair agreed to merge the lots and treat them as one single parcel of land. Consequently the new parking lots will be on the same parcel as [the] proposed building. . . . The Board's decision to grant the variance was also reasonable at the time because it saved the Borough's time and resources by continuing with the present application instead of requiring a new one that originally merged the two lots and continued with the hearing.
Accordingly, no error was committed by the Planning Board in its decision to exercise jurisdiction over the application, nor by the trial judge in his decision finding the Planning Board had jurisdiction over the matter.
The plaintiff also asserts that a conditional use variance from the Board of Adjustment was required. That argument is without merit because it ignores the prior decree obtained by Auto Repair. The decree Auto Repair obtained in 1997 unequivocally states that its use of property as an auto repair business is a permitted use in the C-H zone. Obviously, no use variance is required for a permitted use. Similarly, plaintiff's argument that a use variance was required to expand a non-conforming use is inapposite.
As the trial court found, the Planning Board's award of variances pursuant to N.J.S.A. 40:55D-70(c)(1) and N.J.S.A. 40:55D-70(c)(2) for front yard set back, front yard parking, and maximum impervious coverage were based on substantial credible proofs. The (c)(1) variances were properly granted because of the narrow configuration of the lots in question and the environmentally required encapsulation of Lot 3. Variances should not be granted unless it can be done "without substantial detriment to the public good," and without substantial impairment of the intent and the purpose of the zone plan and zoning ordinance. N.J.S.A. 40:55D-70; Cox, N.J. Zoning & Land Use Administration § 8-1 (2007). The Planning Board specifically found that the site plan approval with the necessary variances would neither be in conflict nor detrimental to the zone plan and zoning ordinance, and that the benefits of revamping the business location would "substantially exceed" and "substantially outweigh" any detriment. Granting these variances, which allows for encapsulated land to be put to use, narrow lots to be combined, and a complete renovation of a conforming use in a more serviceable and aesthetically pleasing manner, was reasonable.
Plaintiff's final argument is that the trial court "should have recognized that the Planning Board's decision was arbitrary, capricious and unreasonable," based on an alleged lack of proof. In support of this argument, plaintiff relies on the testimony of its expert Robert Costa, whose testimony the Planning Board did not find convincing. "A board 'has the choice of accepting or rejecting the testimony of witnesses. Where reasonably made, such choice is conclusive on appeal.'" Ne. Towers, Inc. v. Zoning Bd. of Adj. of Borough of W. Paterson, 327 N.J. Super. 476, 498 (App. Div. 2000) (quoting Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 228 (1965)). The Planning Board's decision, no doubt made in part because Costa did not even reveal that he was employed by plaintiff until cross-examination, was a reasonable under the circumstances. As the trial court said, "[t]he plaintiff ...