On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-10018-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Alvarez.
This zoning case involves a decision by the Newark Board of Adjustment to grant defendant Tonymar, L.L.C. a use variance to construct a massive carwash near the Passaic River in Newark (the City). The City's Master Plan designates the area for waterfront development, and its zoning ordinance prohibits car washes. Plaintiff 250 Passaic, L.L.C. appeals from a trial court order dated January 14, 2008, finding that the Board's decision was not arbitrary and capricious but remanding the variance application to the Board for more specific findings of fact. Because we conclude that, regardless of any further factfinding the Board might make, the record does not contain sufficient evidence to support a use variance, we reverse.
On February 25, 2004, Tonymar applied for a use variance to construct a carwash and oil change facility on Block 445, Lots 1-37 (the property) near the intersection of McCarter Highway and Passaic Street in Newark.*fn1 It is undisputed that the City's zoning ordinance prohibits car washes in the proposed location, which is in the I-2 Industrial zone, as well as prohibiting carwashes anywhere in the city.
Significantly, on December 6, 2004, the City's Central Planning Board adopted the Land Use Element of the Master Plan for the City of Newark. Part of that plan was the creation of an S-W waterfront zone, which included the area in which Tonymar proposed to build the carwash. The relevant portion of the Master Plan provides as follows:
This designation is applied to that portion of the Passaic River waterfront that the City intends to redevelop as a mixed-use environment--residential retail, entertainment and open space and recreation uses and office uses--with a particular emphasis and orientation to waterfront activities, i.e., marinas, boating, walkways along the waterfront, outdoor cafes, etc. Design principles articulated in the Passaic Riverfront Redevelopment Plan should be incorporated into the zoning designation for this area which in addition to encouraging mixed uses and a waterfront orientation and public access, should call for a protection of view corridors, setbacks from the waterfront to provide waterfront esplanades with public access, active ground-floor uses at the water's edge, pedestrian connections to residential neighborhoods behind the waterfront, and a uniform set of design standards for public improvements, including such items as lighting, paving, landscaping, street furniture, signage, colors, materials and style. The area to be designated S-W not only include[s] the area in the Passaic Riverfront Redevelopment Plan Study, i.e., the area of riverfront between Minish Park and Newark Bears and Eagles Riverfront Stadium, but all of the riverfront between the Passaic River and McCarter Highway stretching from the Belleville border in the north all the way to Penn Station in the downtown and then between the Passaic River and Raymond Boulevard from Penn Station into the North Ironbound neighborhood.
Much of the waterfront area adjacent to the downtown has been cleared and is ready for redevelopment. Portions of the area designated S-W Waterfront use between Newark Bears and Eagles Riverfront Stadium and Interstate 280 are still developed for industrial or retail or other uses, and north of Interstate 280, these areas contain mostly active industrial uses. As the market for waterfront development becomes established adjacent to the downtown and in the Passaic Riverfront Redevelopment area, it is hoped that such uses would spread northward and replace the older industrial and other uses along the waterfront.
The following relevant evidence was introduced at the variance hearing before the Board, which began in April 2005. The applicant first presented testimony from an architect, Albert Alvarez. He outlined the location of the property between McCarter Highway and Passaic Street in Newark, the configuration of the planned building, and its proposed use as a carwash, car detailing center and quick-lube facility. He also addressed traffic and parking issues.
The property owner, Mario Decosta, who was also the managing member of Tonymar, testified that he owned a large number of other carwashes, including a newly-opened facility elsewhere on McCarter Highway in Newark. The gist of his testimony was that the project would be a well-designed, environmentally sound, state-of-the art carwash, detailing, and oil-change facility. It would employ a maximum of twenty people.
DeCosta testified that the property was a convenient location for a carwash because there was a lot of existing traffic in the area. In answer to a question from a Board member, DeCosta testified that he had not considered any other possible use for the property. He also testified that although he was seeking to subdivide the property, and place the carwash on one of the newly-created lots, he had no current plans for other proposed lot.*fn2
The applicant also presented key testimony from Ilene Binyra, a licensed professional planner. She testified that she had reviewed two prior master plans, as well as the City's current master plan adopted in December 2004, and the zoning ordinance. Her testimony was designed to show that the site was "particularly suitable for the intended use," and to address the positive and negative criteria for purposes of obtaining a use variance. See N.J.S.A. 40:55D-70(d).
Binyra began by presenting photographs of the properties currently surrounding the site, including several industrial buildings, an existing carwash, a gas station, and a hotel. She testified that the existing industrial building on the site had been vacant since at least 1997. She testified that the "pattern development" in the areas was "largely industrial" with some vacant land and some residential properties.
She explained that "I-2" was the "second heaviest industrial zone." However, the I-2 zoning permitted residential, office and retail uses as well. "The only things that are really specifically prohibited are what I would consider noxious uses and they are spelled out... in... detail." According to Binyra, the current master plan identified the existing zoning ordinance as being "decades out of date." Based on that language, she argued that modern carwashes were actually consistent with the intent of the zoning ordinance.
Binyra testified that the zoning ordinance prohibited laundries and carwashes, although there currently were many of them in the City. In her view, the prohibition on carwashes was aimed at old-fashioned facilities as opposed to the "third" or "fourth generation" carwash proposed by the applicant. Old-style carwashes were undesirable because they required cars to "stack" or "queue" on public streets, and discharged soapy water into the storm sewers instead of recycling the wastewater. They were also housed in small, unattractive buildings. She testified that modern carwashes had eliminated all of these problems and, therefore, in her opinion were not the kind of "noxious uses" the zoning ordinance was intended to prohibit. She also contended that although high-rise residential uses were permitted, they were unlikely to be constructed in proximity to old industrial buildings.
Binyra testified that the site was "particularly suited" for the proposed carwash for the following reasons: the site was "auto oriented" because it was located on McCarter Highway, a very busy road.*fn3 Therefore, instead of creating new traffic, the carwash would draw business from existing traffic. It was also located on a "northbound lane leaving the city" and therefore would be less likely to affect any adjacent residential zones within the City.
Binyra also contended that while "the area along McCarter Highway, particularly north of 280" had "a number of new developments," the carwash site was in an area that was still largely industrial, except for a newly-built hotel. Further, the site had been vacant for a long time and, being a large property, was not "easily and readily reusable." She testified that it would be better for the City's image to have some development on the property, instead of a "derelict site." She also contended that because the property had no direct access to McCarter Highway, it might not "necessarily" be "advantageous for a commercial use." She did not, however, testify that the property could not be developed with a use that would be consistent with the existing zoning and with the master plan.
According to Binyra, a carwash was not an appropriate use for a residential area. Additionally, "[i]t's certainly nothing that you want in your downtown commercial area where it should be pedestrian oriented." Hence, she testified, the site was appropriate for the area as it was currently developed, because it was a high-traffic area with few residential buildings.
After testifying about "site suitability," Binyra next addressed the positive and negative criteria. She testified that the project met the positive criteria, or "special reasons," because it was located in an industrial area, was "vehicular oriented" and not near residential zones, was away from pedestrian activity, was safe and environmentally sound in design, and promoted "the free flow of traffic." She also testified that the building would be attractive.
Binyra also testified that the project satisfied the negative criteria. First, the project would pose no "substantial detriment to the public good" because of its "adequate access" and appropriate traffic circulation, its attractive architecture and landscaping, remoteness from residential areas, environmental safety, and creation of "30 full-time jobs." Second, "[i]n terms of impairment to the intent of the zoning ordinance and master plan," Binyra insisted that as a new generation carwash, the project would be "generally consistent with your zoning ordinance." She also contended that the carwash would be consistent with the master plan.
Binyra testified that the master plan created a "special waterfront district." However, she contended that the plan contemplated waterfront uses "largely" in "the area below [Route] 280" and "some of the redevelopment ...