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Bowie-Mccready v. Morristown Zoning Board Of Adjustment

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 12, 2008

MYRA BOWIE-MCCREADY AND FRIENDS OF HISTORIC SPEEDWELL, PLAINTIFFS-APPELLANTS,
v.
MORRISTOWN ZONING BOARD OF ADJUSTMENT, K & K DEVELOPERS, INC.,*FN1 AND FREDERICK W. STRADTMAN, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2506-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 7, 2008

Before Judges Sapp-Peterson, Messano and Newman.

Plaintiffs are Myra Bowie-McCready, a resident of Morristown, and Friends of Historic Speedwell, a not-for-profit organization formed to support the preservation of Speedwell, a historic district within Morristown (collectively, plaintiffs). They appeal the trial court decision upholding the defendant Morristown Zoning Board of Adjustment's (Board) determination granting a use variance to defendant K & K Developers, Inc. (K & K) (collectively, defendants). The variance permitted K & K to construct twenty townhouses on a 6.2-acre lot (the property) that had been zoned for single-family residences. Because we agree that K & K failed to establish the positive criteria, namely, that there was a special reason to grant the variance, we reverse.

I.

The history of the property at issue dates back to the 1800s when Steven Vail established Speedwell Iron Works, a nationally recognized manufacturer of boilers. When his son George took over the family business in 1848, he built the Willow Hall residence on the property near the manufacturing plant. The plant burned down in 1908, but Willow Hall was not lost in the fire. Eventually, the land was divided into four parts, two of which were owned by the Borough, one part by the County, and the last part, the property at issue here, was privately owned. K & K entered into a contract to purchase the property from its current owner, defendant Frederick W. Stradtman.

The property is located on the fringe of an R-3 district zoned for single-family residential properties, and borders districts that have been zoned for multi-family use. The property is heavily-wooded with steep slopes bordering the northern and southern portions of the property and forms a plateau in the middle. Willow Hall is a 3,500 to 4,000 square foot, Gothic-style "three-bay, two[-]and-a-half story cross-gabled dwelling . . . constructed of coursed rubble[.]" It faces Speedwell Lake to its south and is listed on the National Register as a historic site because of its architectural significance.

Although Willow Hall has been well-preserved, it has structural problems that require at least an estimated $200,000 to correct. Because the restoration costs were so high, K & K believed that the only feasible way to undertake the project was to construct high-end townhouses on part of the property and use the profit from the sale of those homes to fund the restoration project. Although K & K believed that construction of high-end townhouses was the most profitable vehicle through which to fund Willow Hall's restoration, it did not undertake a feasibility study for construction of single-family homes in the area, which construction would have been consistent with the property's R-3 residential zone designation.

Because the proposed townhouse construction project was contrary to the property's zoning designation, K & K submitted an application to the Board for (1) a use variance to construct townhouses in an area zoned for single-family residences, (2) dimensional variances, (3) variances from a town ordinance restricting development on steep slopes, and (4) final site plan approval. Between June 2005 and April 2006, the Board conducted hearings on the proposal.

Both sides presented witnesses including expert testimony as to the feasibility of the proposed project. Additionally, testimony was presented at the request of the Board related exclusively to preservation of Willow Hall.

K & K's proposed plan called for the construction of thirty-one units, later scaled down to twenty, in five buildings. Each building would house four, three-story units that would vary in size from 2,800 to 3,600 square feet, with two-car garages and an area for two parking spots. The end units would have access from the side of the first floor, and the middle units would have a walk-out basement with a small patio. Only the first floor of the units would provide a view of the lake, as K & K intended to retain the trees that grew between the property and the lake. K & K also intended to construct along the lake a retaining wall with landscaping.

To minimize the townhouses' visual competition with Willow Hall, K & K intended to use tiered roofs to break the buildings up to a scale that would be compatible with Willow Hall and to incorporate exterior features of Willow Hall, such as stone and window designs. Building into the steep slopes would also create an appearance from Speedwell Avenue that the townhouses were only two-stories tall, thus further lessening their competition with Willow Hall.

One road from Speedwell Avenue would be constructed to provide access to Willow Hall and to the townhouses. Access to Willow Hall was provided by a driveway from Speedwell Avenue, but K & K planned to eliminate that driveway and to construct the road on the opposite side of Willow Hall. The new road would run approximately down the middle of the lot, about four feet away from Willow Hall.

K & K intended to preserve the existing trees near Speedwell Avenue and to add new ones, as well as some landscaping. K & K also intended to keep a buffer of trees along Ames Road and to plant a new tree for every old one that it tore down. To lessen the negative effects that building into the steep slopes would have on the area, K & K intended to implement a soil erosion and sediment control plan. To address future preservation, K & K intended to create a preservation easement "along the frontage of the Speedwell Lake."

K & K also presented testimony that there were no protected lands, such as wetlands, or species on the property. Thus, the Department of Environmental Protection (DEP) would not restrict development on the land. K & K also believed that the project would improve water quality in the area because K & K intended to construct a state-of-the-art storm water management system that exceeded DEP requirements, and it intended to limit curbing and pavement to minimize the amount of water runoff.

K & K planned to preserve Willow Hall and restrict development on the property by imposing association rules on Willow Hall and the townhouses. For example, those who owned lake-front townhouses would be prohibited from constructing anything that would obstruct the view of the lake, and no one would be authorized to create a public access-way to the lake or to remove trees near the lake. Willow Hall would be restricted to single-family use and its exterior would not be subject to change.

K & K estimated that the price of the townhouses would be between $750,000 and $800,000. It did not offer an estimated value of Willow Hall. K & K believed that primarily "empty-nesters" would purchase the townhouses. Thus, K & K did not believe that construction of townhouses would have a significant impact upon the public schools or that there would be a significant number of children needing areas to play around the townhouses.

While K & K had no intention of selling Willow Hall to a public agency for public use, there was testimony presented to the Board that supported its public acquisition. The expense of Willow Hall being publicly owned versus privately owned was also discussed. There was also conflicting testimony presented as to whether construction of townhouses versus single family homes was the most effective way to preserve Willow Hall. One position advanced was that single-family homes would not compete with Willow Hall to dominate the landscape as would be the situation with large townhouses. Another view expressed on behalf of K & K was that converting a privately-owned historic building into a publicly-owned building is often not the best way to preserve a historic building because a private owner "tends to have much more hands-on-control, much more interest in the building, the structure he's living in," than does the public. Additionally, it was presented that wear and tear from public use often tends to deteriorate the building more than the private use and keeping Willow Hall privately-owned relieves the public of having to fund its preservation with tax money.

Plaintiffs' expert testified that the proposal did not further the intents and purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129, and, more specifically, that the property was not particularly suited for the proposed use because the property could be developed through construction of single family homes that would not disturb Willow Hall nor the steep slopes. Additionally, the expert noted that the property was not the only site available within Morristown for construction of townhouses.

At the conclusion of the proceedings, the Board agreed that K & K's proposal was the best plan to ensure the preservation of Willow Hall and adopted a resolution granting the use variance to construct twenty townhouses, provided K & K obtained site approval and preserved Willow Hall. Plaintiffs filed a complaint in lieu of prerogative writs in the Law Division challenging the Board's action. The trial court remanded the matter to the Board after it concluded the Board had failed to set forth findings of fact and conclusions of law to support its decision. The court directed the Board to make the requisite factual findings and legal conclusions in more detail and retained jurisdiction over the matter.

On June 22, 2007, the Board adopted a resolution that incorporated the same facts contained in its earlier resolution but also included additional findings:

[E]ach and every expert who testified regarding the historical significance of Willow Hall opined that it was a structure of historical significance which should be preserved. Indeed, the two Morristown commissions which offered an opinion in this matter, the Historic Preservation Commission and the Environmental Commission, were of the belief that due to its historical importance Willow Hall should be saved. Accordingly, based upon these unanimous opinions[,] along with the Board's own independent findings in this regard[,] the Board finds that due to its historical significance[,] it is a worthwhile goal to protect Willow Hall from future demolition.

The Board recognizes and acknowledges that Willow Hall is currently privately owned and the owner may do whatever it wishes with the property, pursuant to law, including razing the Willow Hall building. Neither the State of New Jersey, the County of Morris, or the Town of Morristown has any present ownership interest or rights in Willow Hall and, moreover, it has not been demonstrated that any of the foregoing has any future plans or desire in obtaining an interest in Willow [H]all. Plainly, Willow Hall is presently completely unprotected from demolition at any time that the owner believes it is in its best interest to raze Willow Hall.

In reviewing the record[,] the Board discussed that the applicant and the objectors presented differing views regarding the environmental impact of the application along with the planning concerning the project. Initially, it is clear that all parties agree that the site is best suited for residential housing. Moreover, every individual who testified concerning the proposed development's environmental impact on the property noted that the applicant, in its presentation, had a plan to deal with the steep slopes and also tree preservation. The objectors disagreed with some of the applicant's final proposals concerning these issues but these issues were plainly discussed. The Board accepts the applicant's proposals and expert testimony in these areas.

The Applicant has satisfied the positive criteria. The proposed plan allows for Willow Hall to be preserved. Every individual who testified stated that the Willow Hall building is a building [of] historical significance and it should be preserved. This is true regardless of whether the individual testifying was in favor of the application or opposed to the application. The preservation of Willow Hall would be a goal of planning pursuant to the M.L.U.L. Indeed[,] N.J.S.A. 40:A-55D-2(j) states: It is the intent and purpose of this act (t)o promote the con[s]er[v]ation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through improper use of land. (emphasis added).

The Board further concludes that Willow Hall is presently completely unprotected. It may be razed at any time by the owner. The present application is the only proposal which would absolutely insure that Willow Hall will be preserved. Indeed, there are no other proposals offered by any other entity or individual. Regardless of the position taken by the individual testifying, everyone who testified before the Board agreed that Willow [H]all should be preserved. The applicant offered a covenant to run with the land to protect Willow Hall from demolition if its application was granted.

The Board also concludes that this applicant could not readily build any other type of housing development at this site consistent with the architecture of Willow Hall while at the same time protecting Willow Hall. The proposal of the applicant is aesthetically pleasing and the historic significance of Willow Hall will not be diminished by the applicant's proposal.

Accordingly, the preservation of Willow Hall advances the purposes of zoning along with the State public policy and it therefore, pursuant to law, is a special reason. Moreover, Willow Hall obviously only exists at the present location and therefore the aforementioned purposes of zoning and public policy could only be advanced at this site, Bell Atlantic v. Riverdale Zoning[.] 352 N.J. Super. 407 (App. Div. 2002).

The Board also concludes that the positive criteria has been satisfied in that the application promotes the State Plan (hereinafter "The Plan"). During the hearing[,] it was undisputed that the site in question is located in Planning Area 1 under the Plan. The Plan promotes higher density development in such areas as infrastructure already exists and accordingly the preservation of open space in neighboring municipalities would be enhanced. This promotion of development along with the preservation of the Willow Hall Building would be a "special reason" which, again, could only be achieved with this development on this site.

In this regard[,] the Board concludes that the plan also advances N.J.S.A. 40:55D-2(a). That section states: It is the intent and purpose of this act (t)o encourage municipal action to guide the appropriate use or development of all lands in this State in a manner which will promote the public health, safety, morals, and general welfare.

. . . The development which the applicant proposes more readily achieves the goals of section "c" than building as many single homes that the ordinance permits at this site. Moreover, Willow Hall would still be preserved. Accordingly, the Board concludes, again, that this section of the M.L.U.L[.] has been advanced by the project.

. . . The [B]oard finds that the applicant respected the environmental concern on the site while at the same time achieving an [aesthetically] pleasing development. The architecture employed in the project will complement Willow Hall. The plan was revised to provide for a more pleasing visual environment. The plan was revised to move structures away from Speedwell Lake. The number and . . . type of trees at the site are in conformance with the desire of the Board. This goal, again, could only be advanced at this site. Accordingly, the Board concludes that this section of the M.L.U.L. has been advanced by the project.

. . . The density of the site as proposed by the applicant is in conformance wit[h] the ordinance governing the R-3 zone. . . .

. . . The application sets forth an extremely efficient use of the land in question while at the same time ensuring to the Board's satisfaction that the environment has bee[n] protect[ed]. . . .

. . . The Master Plan of the Town of Morristown along with the State Plan addresses historic preservation. The town's Master Plan also acknowledges the goal of higher density development in a Regional Center such as Morristown and sets forth a balance between preservation and growth. This application concurrently promotes development and preserves a historic building. [Aesthetically], the architecture employed allows for a consistent and pleasing flow throughout the project. Moreover, open space is enhanced by the design employed by the applicant.

The Board also concluded that the "negative criteria" has been satisfied. The R-3 density requirements have been met. The height of the buildings also conforms to R-3 requirements. Moreover[,] as it relates [to] the goals of planning is not a deviation from the surrounding properties.

The Board concludes that the applicant has addressed the environmental concerns of the site. There will be a conservation easement protecting Speedwell Lake. The development will have more trees than currently exist at the site. The concentration of the units allows for less steep slope disturbance than would occur if single family homes were built at the site. According[ly], there will be very little impact to the neighboring areas. Moreover, Willow Hall will be preserved. There will not be any substantial detriment to the zone plan or the zoning ordinance and, of course, the surrounding properties. Therefore[,] the Board concludes that the "negative Criteria" has been satisfied.

The trial court reviewed the resolution and, on July 16, 2007, entered judgment in defendants' favor. The court found that the Board's decision was not arbitrary, capricious or unreasonable, and dismissed plaintiffs' complaint. The present appeal followed.

On appeal, plaintiffs contend: (1) the Board engaged in ultra vires conduct with its ad hoc re-zoning of the property; (2) the use variance was ultra vires because the Board may not trade a use variance for a good deed; (3) there is no presumption of correctness to the Board's actions; and (4) even if there were special reasons supporting the issuance of the variance, K & K failed to satisfy the remaining grounds for issuance of a use variance.

II.

Municipal actions are entitled to a presumption of validity and so typically enjoy great deference by a reviewing court. Fanelli v. City of Trenton, 135 N.J. 582, 589 (1994) (citing Brown v. City of Newark, 113 N.J. 565, 571 (1989)). New Jersey's courts have recognized that this standard imposes a heavy burden on a party challenging a municipal action and have repeatedly held that a municipal action will only be overturned upon a showing that the action in question was arbitrary, capricious or unreasonable. Bryant v. City of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998). When faced with multiple possible courses of action, a municipal action is not considered arbitrary and capricious if the municipality acted honestly and with due consideration of the competing options. Ibid.

A zoning board is presumed to have acted fairly and a trial court's review of a zoning board decision should not seek to weigh the wisdom of the decision, only its fairness. Park Ctr. at Route 35, Inc. v. Zoning Bd. of Adj. of the Twp. of Woodbridge, 365 N.J. Super. 284, 288-89 (App. Div. 2004). As a reviewing court, we are bound by the same scope of review and will only reverse the decision of a zoning board if its decision is found to be arbitrary, capricious or unreasonable. Bressman v. Gash, 131 N.J. 517, 529 (1993). However, in the context of reviewing a zoning board's issuance of a use variance, we accord less deference to a grant of a variance than to a denial, as "[v]ariances to allow new nonconforming uses should be granted only sparingly and with great caution since they tend to impair sound zoning." Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990) (quoting Kohl v. Mayor & Council of Fair Lawn, 50 N.J. 268, 275 (1967)) (alteration in original).

Under the MLUL, a zoning board is authorized to issue a use variance where (1) "special reasons" exist to justify the issuance of a variance and (2) the variance can be granted without substantial detriment to the public good and will not substantially impair the intent and the purposes of the zone plan and zoning ordinance. N.J.S.A. 40:55D-70(d).

Special reason variances are divided into two categories. New York SMSA Ltd. P'ship v. Bd. of Adj. of Twp. of Bernards, 324 N.J. Super. 149, 158 (App. Div.), certif. denied, 162 N.J. 488 (1999). The first category is where the proposed use is inherently beneficial. See Sica v. Bd. of Adj. of Twp. of Wall, supra, 127 N.J. 152, 159 (1992). If the proposed use is inherently beneficial, the use does not have to be particularly suited to the site, New York SMSA, supra, 324 N.J. Super. at 159, because inherently beneficial uses intrinsically serve the general welfare. See Medici v. BPR Co., 107 N.J. 1, 12-13 (1987). The second category, which is relevant to our discussion, is where the proposed use is not inherently beneficial. New York SMSA, supra, 324 N.J. Super. at 159. In that case, the party seeking the variance must satisfy the positive criteria showing that "the proposed site is particularly suitable for the proposed use." Medici, supra, 107 N.J. at 4 (1987); see also Smart SMR v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 323 (1998).

N.J.S.A. 40:55D-2 sets forth ten criteria that further the intents and purposes of the MLUL. K & K addressed eight of those criteria in its presentation, which the Board concurred it had met:

a. To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare;

b. To secure safety from fire, flood, panic and other natural and man-made disasters;

c. To provide adequate light, air and open space;

d. To ensure that the development of individual municipalities does not conflict with the development and general welfare of neighboring municipalities, the county and the State as a whole;

e. To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment;

i. To promote a desirable visual environment through creative development techniques and good civic design and arrangement;

j. To promote the conservation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through improper use of land;

m. To encourage coordination of the various public and private procedures and activities shaping land development with a view of lessening the cost of such development and to the more efficient use of land[.] [Ibid.]

Plaintiffs, citing Degnan v. Monetti, 210 N.J. Super. 174 (App. Div. 1986), urge that the Board granted the variance because it believed the construction of townhouses on the property would be desirable and more profitable than would the construction of single-family homes. They argue that similar to our finding in Degnan the property can be developed for its intended use. Additionally, they urge that the preservation of Willow Hall is analogous to the removal of the sewage plant in Degnan, in that both would, or at least could, be done if the property were developed for its intended use.

In Degnan, the developer sought a use variance to construct twenty, later reduced to eighteen, condominium units in an area that had been zoned for single-family residences. Id. at 177. The property was "a 35,000 square feet tract on a barrier island near a waterway called the 'bay.'" Ibid. It abutted Island Beach State Park and housed an inoperative sewage treatment plant. Ibid. The proposed plan called for the removal of the sewage plant, which would maximize the view of the park and bay. Id. at 178. The bulk of the existing development within the vicinity of the proposed project included a variety of uses, including other condominium projects. The developer also presented testimony that the area lacked luxury-type townhouses and that because the sewage plant had to be removed from the property it would not be profitable for him to construct single-family houses on the lot. Id. at 178-79.

The zoning board found that the developer had demonstrated special reasons for adoption of the project that satisfied the positive criteria under the MLUL. Id. at 180-81. The plaintiffs' unsuccessfully challenged the Board's decision in the Law Division. On appeal we concluded that the articulated reasons were, in substance, two reasons: (1) the proposed development was desirable, attractive and appropriate for the site and (2) would result in the elimination of the sewage plant. Id. at 183. We disagreed that either qualified as a special reason and reversed the board's decision. Id. at 183-85.

We did not question that the project would be desirable, attractive or appropriate, but found that there was no basis in the record to conclude that "single family homes would also not be appropriate for this desirable area." Id. at 183. We reasoned that the property could be developed for its intended use and the lack of profit that a developer would earn from taking on a conforming project was beside the point. Id. at 184.

We also determined that the need for luxury resort-housing in the area "can hardly justify the variance, for if a variance could be granted simply because of a supposed need for a use, zoning ordinances would become meaningless." Id. at 183. Stated differently, we concluded that a general need for a particular type project would justify a variance in any area. Ibid. Finally, we noted that the fact that the project as proposed would include the removal of the sewage plant was also not dispositive because developing the property for its intended use would also require the removal of the sewage plant. Id. at 185.

We are similarly inclined to reach the same conclusion here. The critical question is whether there was substantial credible evidence in the record to support the Board's conclusion that the property was particularly suitable for the construction of twenty townhomes. We are not persuaded that the factual record demonstrated that the property was "particularly" suited for the proposed use.

The preservation of Willow Hall was of primary concern to the Board. K & K posited that construction of townhouses was the most practical use of the property to generate sufficient funds to restore and preserve Willow Hall. The Board accepted this evidence without the benefit of any comparative presentation. Specifically, there was no evidence related to the value of the property as it existed, the value if it were subdivided, or the value of a single-family home that complied with all of the relevant ordinances. Moreover, K & K never conducted an analysis to determine the profit that it would likely receive if it developed the land with single-family houses. Thus, K & K's contention, and the Board's finding that it was not feasible to develop the land with single-family homes while preserving Willow Hall, was unsupported by the facts.

Further, K & K intended to build into the steep slopes, not to preserve them as they existed. That alone required variance relief, part of the variance application that the Board, over the objection of plaintiffs, bifurcated from the proceedings for resolution at a later date.

Moreover, the town revised its master plan in 2003-2004. We presume it was aware of Willow Hall and the steep slopes along the property at the time the master plan was approved. Nonetheless, the property remained zoned for single-family residences, with an ordinance that restricted development on steep slopes. Consequently, we also presume the town was aware that if the property was developed, it would not create the density that was authorized for the area. The very fact of the 2003-2004 master plan evidences the continuing intent and purpose of Morristown's zone plan and it was not for the Board to change that decision, even if it believed that the zoned use created an underutilized lot. Burbridge, supra, 117 N.J. at 385. Additionally, there was zoned land available in Morristown for the construction of townhouses.

Thus, K & K failed to show that this site was "a more suitable location" for the proposed use than any other available location. Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adj., 388 N.J. Super. 67, 77 (App. Div. 2006) (explaining that it was a prerequisite to a finding of special reasons that the property was "a more suitable location for a fast food restaurant than any other location in the Saddle Brook commercial district"). While it may have been more profitable to construct townhouse than single-family homes, the reduced profit that K & K would earn from taking on a conforming project is beside the point. Degnan, supra, 210 N.J. Super. at 184. This is particularly true where, as in this case, no comparative analysis between single family construction and townhouse construction was presented.

Nor do we find K & K's reliance upon Burbridge, supra, and Anfuso v. Seeley, 243 N.J. Super. 349 (App. Div. 1990), helpful to its position. Both cases involved the expansion of a pre-existing, non-conforming use, not the creation of a new non-conforming use. As the Burbridge Court emphasized, although concerns of appearance and compatibility have particular relevance in the context of variance applications to expand a pre-existing nonconforming use, they have less relevance compared to the other basic concerns of the MLUL when the question is whether to allow a new use that does not conform to the existing zoning ordinance. In respect of a variance to permit a "new" nonconforming use, ambience alone can seldom be a proper basis for special reasons. [Id. at 392-93.]

The Board's findings were deficient in other areas as well. For example, the proposal did not further subsection (a) ("[t]o encourage municipal action to guide the appropriate use or development of all lands in this State in a manner which will promote the public health, safety, morals, and general welfare") because the proposal was inconsistent with the use that the town had defined as the appropriate use for the area and because the property was not particularly suitable for townhouses. The Board's belief that the proposal complied with the State Plan did not establish otherwise.

With respect to intent and purpose (c) ("[t]o provide adequate light, air and open space"), plaintiff's expert testified that townhouses do not create the types of light, air and open space that single-family houses create. The Board, in finding that townhouse construction would provide adequate light, air and open space, did so without any comparative data presented to it by K & K demonstrating that townhouses will provide more open space than single-family homes.

In short, while the preservation of Willow Hall promotes the general welfare through the conservation of an historic site, an objective consistent with the MLUL, the evidence K & K presented did not demonstrate that Willow Hall's preservation could only be achieved through the construction of twenty townhouses as opposed to single family homes for which the property was zoned. In view of this conclusion we find it unnecessary to consider whether K & K established the negative criteria for issuance of the variance, namely, that the variance can be granted without substantial detriment to the public good and that granting the variance will not substantially impair the intent and the purpose of the zone plan and zoning ordinance. N.J.S.A. 40:55D-70(d).

The remaining arguments advanced by plaintiffs are: (1) the Board engaged in ad hoc zoning, (2) its action is not entitled to the presumption of correctness, and (3) the Board traded a use variance for a good deed. We need not consider these arguments in light of our conclusion, as they are all variations on the same theme as plaintiffs' winning argument, i.e., that the Board was arbitrary and capricious.

Accordingly, the final judgment of the Law Division affirming the Board's grant of a use variance for the construction of twenty townhouses is reversed.

Reversed.


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