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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...