On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3030-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Coburn.
We affirm the judgment of July 27, 2007, vacating a resolution of the Scotch Plains Zoning Board of Adjustment and approving a "D" variance and minor subdivision for plaintiff's property, substantially for the reasons stated in Judge Walter Barisonek's comprehensive oral opinion of July 27, 2007. We add only the following.
The property of 16.65 acres is a pre-existing non-conforming use, and plaintiff sought a subdivision to permit residential development of approximately one-half of the property, 8.06 acres (lot 13.02). After considering the evidence, the Board determined that plaintiff did not meet the criteria for a "D" variance.*fn1 However, the Law Division determined that the proposed use inherently serves the public good, see Sica v. Bd. of Adjustment of Twp. of Wall, 127 N.J. 152, 159-60 (1992), even though the subdivision had nothing to do with the actual provision of the public utility's services. Thus, the "positive" criteria was satisfied and had to be balanced with the "negative." Id. at 160-63. On the other hand, the judge concluded "that plaintiff has shown that the negative criteria would not create a substantial detriment to the public good or substantially impair the intent and purpose of the zone plan and zoning ordinance" while accommodating the "use which conforms to the zone and master plans." The utility purpose could be preserved on half the property, and the residential use on the other half would conform to the existing zoning, although easements would be required over lot 13.02.
The Board insists the trial court should never have engaged in "balancing" "because the proposed subdivision of the property . . . is unrelated to the continued operation of water supply services by the applicant." The Board acknowledges Judge Barisonek recognized it "was legally correct in applying the Razberry's case," see Razberry's, Inc. v. Kingwood Twp. Planning Bd., 250 N.J. Super. 324 (App. Div. 1991),*fn2 and "does not dispute the established case law dealing with how to apply positive criteria in reaching a decision as to whether or not variance relief is required . . . ." Rather, the Board attacks the judge's findings and conclusions, asserting "it was improper as a matter of law for the trial court to impute positive criteria . . . when none were shown or established by the applicant . . . ." It further argues that "[i]t was also improper for the Court to draw its own conclusions about the extent of the negative criteria and other proofs before the Board in reaching a legal conclusion based upon a different evaluation of the case than that reached by the Board." Stated differently, the Board claims the court employed an improper scope of review and improperly substituted its judgment for that of the Board, particularly because the variance had been denied. See Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adj., 343 N.J. Super. 177, 198-201 (App. Div. 2001).
However, the court did acknowledge the appropriate scope of review, and in addition to determining the Board's decision was arbitrary, capricious and unreasonable for specific reasons, and that the Board's decision regarding the negative criteria was not supported by the evidence, the judge also determined that the legal criteria governing the positive criteria were not considered, and that "the proposed variance correlates to [an inherently] beneficial use." We emphasize, as did Judge Barisonek, that the area is in fact zoned for single family residential use and, as Judge Barisonek also noted, "there is nothing additional being added to this property so as to accommodate the use of plaintiff." That is there is no increase of the non-conforming use.
The Board's resolution makes clear its concern about the reduction of the existing buffer and its impact on future development. However, even if the prior use variances might not have been granted if the reduced buffering by the present subdivision was contemplated, as the judge noted, "any future subdivision can [be conditioned on] additional buffers and landscaping."