On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-410-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2009
Before Judges Carchman and R. B. Coleman.
Plaintiffs Timothy Sohn (Sohn) and Zone Industrial Park, LLC (ZIP) appeal from a judgment of the Law Division affirming defendant Lopatcong Township Zoning Board of Adjustment's (the Board) bulk variance and subdivision approvals to create two residential lots on property owned by defendant GC Landmarks, LLC. (GC)*fn1 . We affirm.
These are the relevant facts that emerged in the proceedings before the Board and in the Law Division. GC is the owner of vacant land consisting of a 5.846 acre parcel (the PQ) located in the Research Office and Manufacturing (ROM) Zone in Lopatcong Township. The PQ is bounded to the south and west by the R-3/2 Residential Zone, which contains eight residences. To the north and east, the PQ is bounded by other portions of the ROM zone, including the 8.9 acre ZIP property abutting the PQ immediately to its east.
The ROM zone permits industrial-type uses on lots requiring a minimum lot size of twenty acres, with a minimum width of 400 feet, front and rear yards of 100 feet each, and side yards of seventy-five feet each. The abutting R-3/2 zone "permits single-family detached dwellings only as part of a cluster development," and requires that each lot consist of a minimum of two acres with at least 50% set aside as open space, a minimum width of 175 feet, a front yard of fifty feet, a rear yard of eighty feet, and side yards of fifty feet each.
GC applied for a use variance to permit the construction of three residences in the ROM zone. On October 12, 2005, the Board held a hearing to consider GC's application and granted the use variance but limited a future subdivision application for construction to two residences only. In its November 9, 2005 resolution memorializing its approval, the Board noted that whether the PQ could accommodate two separate residential lots would be determined following submission, review and consideration of engineering plans and alternative designs.
On May 10, 2006, GC again appeared before the Board, seeking approval: 1) to subdivide the PQ into two residential lots, and 2) to secure the necessary bulk variances. GC proposed to subdivide the PQ into two lots, one with an area of 2.714 acres, and the other 2.924 acres. Each lot would be approximately 150 feet wide, with the smaller lot having a 173-foot front yard, 542-foot rear yard, and combined side yards of ninety feet, and the larger lot having a 167-foot front yard, 603-foot rear yard, and combined side yards of eighty-five feet.
A conservation easement was proposed for the rear portion of each lot, covering a total of 2.929 acres, or 52% of the PQ.
Sohn, who did not object to the initial use variance, appeared at the May 10 hearing to object to both the density of use of the PQ and its subdivision. He noted that his industrial park, ZIP, located immediately to the east of the PQ, houses various types of companies, including two bus companies, an obedience school, a garbage company, a computer company, two car repair companies, a bus repair company, four race car drivers, heavy equipment, an awning company, a trucking company and a meat delivery company. Along the properties' shared border, the County maintains approximately forty-eight diesel buses. Sohn stated that between 200-250 vehicles pass through the industrial park seven days per week from about 2 a.m. until midnight. In the event of snow, he provides 24-hour snow removal.
Sohn's primary concern was that the Board would allow GC to build two residences on the PQ, rather than one, because two residences would require building closer to the industrial park. He focused on the potential bothersome effects of the industrial park and observed that one rather than two abutting residences would also lessen the likelihood that Sohn would receive constant complaints about noise, lights or smell.
Despite Sohn's concern and objections, on June 14, 2006, the Board granted GC's subdivision and bulk variance requests. In its June 14, 2006 resolution, the Board found that the two proposed lots "conform[ed] as much as possible to the current R-3/2 regulations," and increased the side yard setback for the lot bordering the industrial park from sixty-five feet to seventy-five feet, thereby alleviating any concerns about the effects of the industrial park and satisfying the ROM side yard setback requirement. With respect to Sohn's objections, the Board found that his concerns were relevant to the use of the PQ for residential purposes, an issue that was previously decided by the Board and from which no appeal was filed.
The Board determined that GC had "a vested right to use [the] property for residential purposes," and focused its examination on "the extent to which [GC's] proposed subdivision complie[d] with the bulk standards for the R-3/2 zone." The Board found that, with some minor modifications, the plan generally conformed to the standards. The Board then adopted a resolution incorporating its findings and conclusions.
Plaintiffs filed a complaint in lieu of prerogative writs alleging that the Board's resolution was arbitrary, capricious and unreasonable. On May 4, 2007, the trial judge, in a written opinion, concluded that, despite the PQ's being included in the ROM zone, he took "no issue with the Board's use of the R-2/3 (sic) zone bulk requirements as a guide on a property that has already been granted a residential use variance." Nonetheless, the judge found that the Board's decision was flawed because it failed to specify the type of bulk variance granted. He issued an order remanding the case to the Board "to specifically identify the statutory criteria upon which [the] application was granted."
On remand, the Board again considered GC's application for subdivision approval and bulk variances. GC proffered an expert witness, Daniel McSweeney, P.P., who reviewed GC's proposed subdivision and opined that the proposal satisfied the positive and negative criteria required for a bulk variance under either N.J.S.A. 40:55D-70(c)(1) or (c)(2) of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. Sohn asserted that one residence would still satisfy the criteria for a (c)(2) variance and could allow for greater buffering between the residence and industrial park. In a resolution dated July 11, 2007, the Board again approved GC's application and made specific and comprehensive findings with respect to the positive and negative criteria required for both (c)(1) and (c)(2) variances.
Sohn filed a second action in lieu of prerogative writs, alleging: 1) that the Board's resolution was arbitrary, capricious and unreasonable because the evidence did not support its findings; 2) McSweeney was unqualified to give his opinion; and 3) the Board improperly attempted to shift the burden of proof to Sohn. On February 4, 2008, in a written opinion, Judge Coyle held that there was sufficient evidence to support the Board's finding that GC satisfied the criteria for a (c)(1) variance. He made no additional findings with respect to the (c)(2) variance other than to adopt the Board's conclusions. The ...