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TSI Marlboro, Inc. v. Township of Marlboro Zoning Board of Adjustment

September 5, 2008

TSI MARLBORO, INC., PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
TOWNSHIP OF MARLBORO ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT, AND MARLBORO SPORTS CENTER, LLC, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1623-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 25, 2008

Before Judges Graves, Sabatino and Alvarez.

Defendant Marlboro Sports Center LLC (MSC or defendant) appeals from a final judgment of the Law Division reversing the grant of a use variance by the Marlboro Township Board of Adjustment (the Board) that allowed MSC to construct an indoor recreational facility and health club. MSC contends there was sufficient evidence in the record to support the Board's decision, and the trial court "improperly substituted its judgment for that of the zoning board." We agree. Accordingly, we vacate the judgment entered on September 12, 2006, and remand the matter to the Law Division for reconsideration and additional factfinding.

On October 21, 2002, MSC filed a bifurcated application*fn1

with the Board for a use variance to construct a recreational facility and health club on a 7.85 acre site located in a light industrial (LI) zone on the southwestern corner of Boundary Road and Vanderburg Road. The vacant property is designated as lots seven and eight, in block 360, on the Marlboro Township tax map. The Marlboro Township zoning ordinance permits recreational uses in the LI zone as conditional uses, but only if the facility is not for profit. Therefore, a non-profit facility, such as a YMCA or Jewish Community Center, would be conditionally permitted in the zone, but the for-profit status of MSC's proposed facility rendered it a non-permitted use.

During the course of seven public hearings, which took place between February 12, 2003, and December 3, 2003, the Board heard testimony and considered evidence from MSC's owners, Frank Calandrino and his brother, Stephen Calandrino, and MSC's engineer, planner, traffic expert, market expert, architect, and others. The Board also heard expert testimony and considered evidence presented by an objector, TSI Marlboro, Inc. t/a New York Sports Club (TSI or plaintiff), a potential competitor of MSC. Finally, the Board considered testimony and reports from its planner, Richard Cramer, and its engineer, Ernest Peters. No local residents addressed the Board in opposition to MSC's variance application.

The Board's resolution approving the use variance states the Board "found the testimony of [a]pplicant's witness, James Higgins, P.P. to be credible and [the Board concurs] with Mr. Higgins that this property is particularly suited for the proposed use." On September 3, 2003, Higgins testified as follows:

Q: . . . Would you go through [the special reasons] with the Board . . . and the background analysis?

A: Yes, surely. . . .

The surrounding uses: To the west you have industrial uses that are located in the industrial park. To the east of the site across Boundary Road you have a mixture of agricultural uses, farms as well as residential uses in Colts Neck. Directly to the north of the site across Vanderburg Road, you have the municipal soccer complex, which now has recently had a pool complex also constructed with it; and to the south of the site you have industrial uses, also located in Marlboro on Boundary Road.

I think that there are special reasons for the granting of the variance. And I say this because, first of all, a recreational use does in itself have a substantial public benefit. It doesn't rise to the level of an inherently beneficial use, but it is a use that does provide public benefit. . . .

The ordinance permits in this zone quasi-public buildings and recreational uses on the site. . . . [S]o I think the Zoning Ordinance has provided for this type of use in this zone and said this type of use is appropriate in this zone. In addition, the Master Plan also recognizes that this type of use . . . is appropriate in the zone . . . .

The size and the configuration of the site I think are ideal for the use. . . . This is a lot [that] will accommodate the large buildings and the adequate parking facilities.

The site is transitional-type site located between the industrial areas to the west and the south and the recreational and residential areas to the north and to the east, so that this site in my opinion is better suited to this type of use rather than an industrial use that would involve trucks, a warehousing use that would involve trucks, possibly 24-hour[s] a day . . . .

In addition, by locating this type of use in an industrial area, there's a certain synergy between this use and the industrial use. I think it's a benefit to the industrial zone in that the employees of the businesses in the industrial zone would be able to take advantage of this use and to provide for recreation, exercise, and so on; so that I think it's an actual benefit to the surrounding area.

The other point would be the fact that the site is located on two fairly heavily traveled streets so access to the site is not a problem, particularly with the suggestion that has been made by the Board as far as the connection on [Travelers Way].

With regard to negative impact, I don't think there's any significant negative impact either to surrounding properties or to the zone plan. The use itself, as I said, is a conditionally-permitted use in the zone. . . . The only difference is the ownership and operation being for-profit rather than quasi-public, but that doesn't affect the ...


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