August 26, 2008
FRANK GENTILE, PLAINTIFF-APPELLANT,
TOWNSHIP OF LYNDHURST, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8055-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 14, 2008
Before Judges A. A. Rodríguez and Collester.
Appellant Frank Gentile appeals the April 24, 2007 order of the Law Division dismissing his complaint in lieu of prerogative writs against the Township of Lyndhurst (Township). We affirm.
Gentile owns property located in the Township's business zone (B-Zone). Gentile uses the first floor of the property to operate a dry cleaning business and has been doing so for the past twenty-five years. The section of the Township Code entitled "Zoning" ("zoning ordinance") specifically prohibits "laundry and dry cleaning establishments where laundry and dry cleaning is done on the premises . . ." in the B-Zone.
Gentile filed an application for a variance in order to construct five one-bedroom apartments above the dry cleaning business. When Gentile filed the application, the zoning ordinance permitted dwelling units "above the first floor of such business establishments as are permitted [under the zoning ordinance], (Permitted Uses) . . . ." Sometime after the governing body reversed the zoning board, the Township amended the zoning ordinance, deleting this section, thereby prohibiting dwelling units above the first floor of business establishments. The application did not state that the present commercial use of the property was an impermissible use under the zoning ordinance.
At a regular meeting, the Township's Board of Adjustment (Board) heard testimony from experts on behalf of Gentile in support of the application. The collective opinion of these experts was that a use variance was required in order to modernize the building and that such a use "conforms with the area" and "will promote a desirable visual environment."
At the meeting, a Township resident, Nicholas Uliano, objected. He testified that parking would be a concern should the Board grant Gentile's application. He also expressed his concern about the chemicals used in Gentile's dry cleaning business and the effect such chemicals could have on residents living above it. Following a short discussion on this matter, the Board approved the application by a unanimous vote.
The Board passed a Resolution memorializing its decision. It found that special reasons existed to grant the application, specifically: the project will cause no undue burden on the surrounding area; the project will provide adequate light, air and open space; the project will not cause congestion; and the use is "peculiarly fitted to this property and therefore the general welfare will be served." It also found that the application could be granted without causing a "substantial detriment to the public good and without impairing the intent and purpose of the zoning plan and zoning ordinance[.]"
Uliano appealed to the Lyndhurst Board of Commissioners, the governing body. He essentially reargued his position. Uliano stated that he had nothing to gain from objecting other than maintenance of the master plan of the town in which he has lived for over fifty years. Gentile testified in defense of the Board's decision.
At the hearing, the Mayor expressed a number of concerns with the Board's decision. In particular, the Mayor noted that the dry cleaning business is a nonconforming use in the Township's B-Zone. The Mayor also found that there was no basis for the Board to go back and permit the use of a property that violates the zoning ordinance. The Mayor noted that pursuant to the Municipal Land Use Law*fn1 (MLUL), both positive and criteria are required for a variance. See N.J.S.A. 40:55D-70d. He found no basis to deem the property "particularly suited for that use," a positive-criteria factor that Gentile should have proven and the Board should have addressed. There was also nothing in the record regarding negative criteria.
The Mayor moved to reverse the decision of the Board. A majority of the governing body agreed. On September 12, 2006, the governing body adopted a resolution to this effect, indicating that it was reversing the grant of the application on the ground that Gentile had not established the positive and negative criteria as required by the MLUL. The governing body also found that the application was invalid because it did not mention the fact that the first floor was already being used for a business not permitted by in the B-Zone and would therefore expand an already-nonconforming use. Therefore, the application did not properly "inform the public of the nature of the matters to be considered," contrary to N.J.S.A. 40:55D-11.
Gentile filed the action in lieu of prerogative writs alleging that Lyndhurst's actions were arbitrary, capricious and unreasonable and sought reinstatement of the Board's approval, costs and attorney's fees. Sometime between September 12, 2006, and April 9, 2007, while Gentile's complaint was pending, the Township amended its zoning ordinance, deleting the provisions which permitted dwelling units above first-floor business establishments and the conversion of retail stores into dwelling units.
Judge Jonathan Harris heard the matter and dismissed Gentile's complaint. Judge Harris found that Gentile applied for a "d(1)" variance, which seeks permission for "a use or principal structure in a district restricted against such use or principal structure." N.J.S.A. 40:55D-70d(1). He found that this is not really a d(1) situation, but a "d(3)" situation, which is when a variance is sought to deviate "from a specification or standard . . . pertaining solely to a conditional use." N.J.S.A. 40:55D-40d(3). Judge Harris reasoned that the zoning ordinance imposed the condition of a permitted first-floor use in order to construct residential units above it, a typical d(3) situation. Given this error in both the application and the analysis by the zoning board and the governing body below, Judge Harris noted that a remand to the former is the zoning board usual remedy.
However, Judge Harris did not order a remand to the Board. Instead, applying the time of decision rule, the judge looked to the current version of the Township zoning ordinance. The ordinance, as amended, removed dwelling units over retail establishments as a conditional use. This meant that in order to construct dwelling units above the dry cleaning establishment, Gentile would have to seek a variance for a use "in a district restricted against such use . . . ." N.J.S.A. 40:55D-70d(1). Therefore, applying the time of decision rule, the d(1) analysis is the proper means of determining whether or not to approve the application.
Judge Harris could find nothing on the record indicating that the Township acted in an arbitrary, capricious or unreasonable manner in concluding Gentile failed to meet his burden under the MLUL. Accordingly, he dismissed Gentile's complaint. Gentile duly filed a notice of appeal.
We presume that actions by a zoning board are valid. Northeast Towers, Inc. v. Zoning Bd., 327 N.J. Super. 476, 493 (App. Div. 2000). "Such public bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion." Kramer v. Bd. of Adjust., 45 N.J. 268, 296 (1965). A zoning board's decision is entitled to "substantial deference" from a reviewing court and may only be reversed when "arbitrary, unreasonable, or capricious." New York SMSA, L.P. v. Bd. of Adjust., 370 N.J. Super. 319, 331 (App. Div. 2004).
When the governing body also rules on an application for a variance, the presumption of validity attaches to the decision of the governing body, not the zoning board. Riese-St. Gerard Housing Corp. v. City of Paterson, 249 N.J. Super. 205, 215 (App. Div. 1991). That deference is even greater when a court reviews a denial of a variance, rather than a grant. Saddle Brook Realty v. Bd. of Adjust., 388 N.J. Super. 67, 75 (App. Div. 2006). So long as the governing body's decision does not amount of an abuse of discretion, courts should "defer to its judgment and its knowledge of local conditions" and not disturb its decision. Riese-St. Gerard, supra, 249 N.J. Super. at 215. This is so because 1) the MLUL makes clear that the governing body is entitled to a de novo review of the record and 2) it is not the zoning board, but "the governing body, which is directly responsible to the citizenry [and] should have the right to apply its own expertise and knowledge of the community and make the final evaluation based on the record created below." Evesham Twp. Zoning Bd. v. Evesham Twp., 86 N.J. 295, 300-01 (1981).
On appeal, Gentile contends:
POINT I -- LYNDHURST'S ACTIONS IN REVERSING THE UNANIMOUS APPROVAL OF THE ZONING BOARD WAS AN ABUSE OF DISCRETION.
A.) THE MATTER SHOULD BE CONSIDERED AS A CONDITIONALLY PERMITTED USE.
B.) LYNDHURST AVOIDED KEY PARTS OF THE RECORD AS DEVELOPED BY THE ZONING BOARD OF ADJUSTMENT.
C.) LYNDHURST CANNOT FIND SUPPORT IN THE RECORD FOR ITS REVERSAL.
POINT II -- APPLYING THE PROPER CONDITIONAL USE STANDARD WARRANTS APPROVAL RATHER THAN REMAND OR FURTHER LOCAL ACTION.
We disagree and affirm for the reasons expressed by Judge Harris in his April 10, 2007 oral opinion. See R. 2:11-3(e)(1)(A). We note only the following.
Judge Harris properly applied the time-of-decision rule, which required him to consider the ordinance in effect at the time of his decision. See Burcam Corp. v. Planning Bd., 168 N.J. Super. 508, 512 (App. Div. 1979). At the time Judge Harris considered Gentile's complaint, the zoning ordinance did not permit residential units above commercial establishments in the B-Zone. Judge Harris was bound by the ordinance as amended. As such, Gentile's application was for a d(1) variance, which is necessary when an application seeks "a use or principal structure in a district restricted against such use or principal structure . . . ." N.J.S.A. 40:55D-70d(1).
As for the positive and negative criteria required under the MLUL, the record provides sufficient support for the governing body's decision to deny Gentile's application.