March 25, 2009
TIMOTHY SOHN AND ZONE INDUSTRIAL PARK, LLC, PLAINTIFFS-APPELLANTS,
LOPATCONG TOWNSHIP ZONING BOARD OF ADJUSTMENT AND GC LANDMARKS, LLC, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 judge rejected Sohn's burden-shifting allegation as irrelevant. By order of February 4, 2008, the judge affirmed the Board's decision. This appeal followed.
On appeal, plaintiffs challenge the finding that a hardship under N.J.S.A. 40:55-70(c)(1), exists and assert that the finding of hardship was arbitrary, capricious and unreasonable; they challenge the qualifications and conclusion of GC's expert opinion claiming it was vague, contradictory and conclusory; and they fault the Board for not addressing the inherent harm in allowing the construction of two homes immediately adjacent to an existing, "intense industrial use with minimal buffering."
We first address the standard of review that informs our consideration of this appeal. In light of "their peculiar knowledge of local conditions," zoning boards' decisions are presumed valid. Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965); Wilson v. Brick Twp. Zon. Bd., ____ N.J. Super. ____, ____ (App. Div. 2009) (slip op. at 7); Medical Ctr. at Princeton v. Princeton Twp. Zoning Bd., 343 N.J. Super. 177, 213 (App. Div. 2001). Whether a variance applicant has successfully met the relevant statutory criteria is "entrusted to the sound discretion of the municipal boards." Kaufmann v. Planning Bd. for Twp. of Warren, 110 N.J. 551, 558 (1988); Medical Ctr., supra, 343 N.J. Super. at 198. The party challenging the board's decision bears the burden of overcoming its presumption of validity. Cell South of N.J., Inc. v. Zoning Bd. of Adj., W. Windsor Twp., 172 N.J. 75, 81 (2002). "[C]courts ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Borough of N. Caldwell Bd. of Adj., 160 N.J. 41, 58-59 (1999). Reviewing courts may not substitute their own judgment for that of a board, and the board's "determination will be set aside only when it is arbitrary, capricious or unreasonable." Wilson, supra, ____ N.J. Super. at ____, (slip op. at 8). Even where the court doubts the outcome, it cannot declare the board's action invalid absent a clear abuse of discretion. Kramer, supra, 45 N.J. at 296-97. With these principles in the forefront, we now address the merits of the appeal.
GC's sought relief from the bulk requirements of the ordinance pursuant to N.J.S.A. 40:55D-70(c)(1) and (c)(2). We first address the (c)(1) application. Subsection (c)(1) requires that the applicant for relief demonstrate:
(a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation . . . would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property.
In addition to these positive criteria, a (c)(1) variance applicant must also meet the requisite negative criteria enumerated in N.J.S.A. 40:55D-70(d): "[T]hat such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." The applicant bears the burden of establishing the existence of both the positive and negative criteria. Betts v. Bd. of Adj., Linden, 72 N.J. Super. 213, 217-18 (App. Div. 1962).
Grant of a (c)(1) variance is appropriate when "the strict enforcement of the ordinance would cause undue hardship because of the unique or exceptional conditions of the specific property," but not when only a personal hardship to the owner will result from denial. Lang, supra, 160 N.J. at 53. Specifically, it is "the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community," and not "the characteristics of the land that create a hardship on the owner," that should be the focus of the board's inquiry. Menlo Park Plaza Assocs. v. Planning Bd. of Twp. of Woodbridge, 316 N.J. Super. 451, 460-61 (App. Div. 1998), certif. denied, 160 N.J. 88 (1999). When determining whether to grant a (c)(1) variance, the board must consider the size and condition of the property itself, and not any potential personal hardship the owner may incur. Lang, supra, 160 N.J. at 53-54. Additionally, we recently held that an applicant under (c) (1) need show that the strict application of a regulation "would result in peculiar and exceptional practical difficulties to, or exceptional circumstances and undue hardships upon, the developer of the property" Wilson, supra, ____ N.J. Super. at ____, (slip op. at 16-17).
Here, the trial judge determined that there was substantial credible evidence in the record to support a finding of hardship based on the irregular shape of the PQ. He also concluded that the location of the property, abutting eight developed residential properties, made it unsuitable for any of the uses permitted in the ROM zone. The absence of adjoining vacant properties precluded the applicant from acquiring sufficient property to bring the PQ into compliance.
The Board found McSweeney's testimony "credible and persuasive," and stated that he was "eminently qualified" as an expert. Relying in part on his testimony, the Board made the following findings with respect to hardships resulting from the property's current ROM zoning designation:
This is an irregularly shaped lot, being long and narrow, which contains a substantial vegetative buffer to be preserved as part of this proposed development. The property is also surrounded on two sides by eight developed undersized residential properties in the R3/2 (sic) residential zone. Additional land cannot be acquired from surrounding properties to reduce or eliminate the lot area, width and side yard variances requested, since none exists. Moreover, this tract is grossly undersized for any ROM development. This Board has previously determined that the property was more suitable for residential development. Finally in this regard, the variances sought for lot area and lot width are pre-existing conditions. Given all of these factors, the Board finds that the statutory criteria referred to [in N.J.S.A. 40:55D-70(c)(1)] in sub paragraphs A, B, and C each have been satisfied, although it would be necessary for the applicant only to satisfy one of them.
Despite the Board's detailed explanation, Sohn maintains that it could have declined GC's application by finding no undue hardship. Specifically, Sohn argues that no hardship would exist if the Board denied the subdivision variance but still allowed GC to build one residence on the PQ. He further asserts that the only hardship that would result from construction of one residence would be a decrease in profit for GC.
During the hearing, Sohn asked McSweeney if one residence would be better suited to the PQ than two. McSweeney responded, first, that, even if GC built a single residence, it might still be within seventy-five feet of the industrial park because there was no requirement to further increase that side yard setback. He then pointed out that subdividing the PQ would result in closer conformity with the size of surrounding residential lots. Although McSweeney opined that it might also be possible to satisfy the statutory purpose through construction of only one residence, he stated that no adverse impact would result from construction of two residences.
Relying, in part, on McSweeney's opinion, the Board based its decision on the statutory criteria, the "extraordinary and exceptional" nature of the PQ itself, the size and shape of which caused its non-compliance with zoning requirements for ROM development and made it better suited to residential development.
Although the (c)(1) hardship could be lessened by construction of a single residence, the Board determined that subdividing the PQ would result in two lots more compliant with the surrounding residential properties in the R-3/2 zone. More significant, however, whether subdivided or not, GC would need variances from the ROM requirements because of the irregular and undersized shape of its PQ. The Board's decision to grant the (c)(1) variance for the subdivided lots, which was based on GC's satisfying the positive and negative statutory criteria, was neither arbitrary nor capricious. We observe, without deciding, that requiring one oversized residential lot does not appear to serve the zoning plan or the spirit or intent of the MLUL. In any event, we discern no abuse of discretion in the Board's conclusion that two lots were more suitable. Kramer, supra, 45 N.J. at 296-97.
We now address the (c)(2) variance. A (c)(2) "flexible" variance may be granted when "the purposes of [the MLUL] would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment." N.J.S.A. 40:55D-70(c)(2). As with a (c)(1) variance, an applicant must also satisfy the negative criteria required under N.J.S.A. 40:55D-70(d): "[T]hat such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."
A (c)(2) variance, like a (c)(1) variance, also may not be granted based solely on advancement of the property owner's personal interests. Kaufmann, supra, 110 N.J. at 563. In Kaufmann, the Supreme Court stated:
The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case, then, will be not on the characteristics of the land that, in light of current zoning requirements, create a "hardship" on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community. [Ibid.]
As we recently observed:
A C2 variance then is not based upon "hardship" but "requires a balancing of the benefits and detriments from the grant of the variance." Bressman v. Gash, 131 N.J. 517, 523 (1993), [(]citing Kaufmann, supra, 110 N.J. at 558-60[)]. The analysis focuses on advancing the purposes of the MLUL and the benefits to the community.
In sum, the application for a variance under C2 requires:
(1) [that it] relates to a specific piece of property; (2) that the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance requirement; (3) that the variance can be granted without substantial detriment to the public good; (4) that the benefits of the deviation would substantially outweigh any detriment and (5) that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance. [William M. Cox, New Jersey Zoning and Land Use Administration, § 6-3.3 at 143 (Gann 2008), [(]citing Ketcherick v. Bor. of Mountain Lakes, 256 N.J. Super. 647, 657 (App. Div. 1992)[)]; Green Meadows, supra, 329 N.J. Super. at 22.] [Wilson, supra, ____ N.J. Super. at ____ (slip op. at 10-11).]
Here, the Board found that a (c)(2) variance was warranted. It stated that the following purposes of the MLUL would be advanced by grant of the variance:
A. To encourage municipal action to guide the appropriate use and development of land in a manner which will promote the public health, safety, and general welfare.
C. To provide adequate light, air and open space.
E. To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being o[f] persons, neighborhoods, communities and preserve the environment.
G. To provide sufficient space in appropriate locations for a variety of residential uses and open space.
[(referring to N.J.S.A. 40:55D-2).]
Examining these statutory purposes in more detail, the Board reiterated that a residential use was more appropriate for the PQ and found that approximately 52% of the PQ would be deed restricted as open space, which would shield the residential lots to the PQ's south and west. Furthermore, although the two new lots would each exceed the areas of the residential lots abutting the property on the west, as well as the minimum size requirements for lots in an R-3/2 zone, the Board found that the lots were "consistent and compatible" with the surrounding developed area, and complied "as much as possible" with the R-3/2 zone standards. It concluded that the community would be best served by construction of two residences on the PQ, noting that alternative lot layouts would negatively impact both the conservation easement and the residential area to the south and west. With respect to the industrial park, the Board pointed out that GC increased the side yard setback closest to the park to seventy-five feet, and planned to provide a "heavily planted landscape strip" along the property line abutting the park.
Turning next to the negative criteria, the Board found that: (1) residential development was better suited to the location; (2) the proposal was compatible with the existing area; (3) the proposal would "preserve the character of the area and eliminate uncertainty for existing residential homeowners as to future use of the property"; (4) the "rural residential character of the established neighborhood" would be enhanced; (5) the PQ cannot satisfy the ROM zoning ordinance and lies between a ROM zone and a residential zone; (6) given the size, shape and location of the tract, it is not appropriate for most permitted ROM uses; (7) development consistent with ROM zone usage would "have a significant negative impact upon abutting residential properties and in all likelihood would result in the loss of the conservation easement"; and, finally, (8) the property in question was on the market for a long period of time but was never developed for any allowable ROM purpose.
Sohn contends that the Board relied too heavily on McSweeney's testimony, resulting in insufficient factual findings that were nothing more than recitals of the testimony or "summary finding[s] couched in the conclusionary language of the statute." Harrington Glen, Inc. v. Municipal Bd. of Adj., Leonia, 52 N.J. 22, 28 (1968). We reject this argument.
First, the Board found McSweeney's testimony reliable. See Allen v. Hopewell Twp. Zoning Bd., 227 N.J. Super. 574, 581 (App. Div.) (stating it is "within the province of the board of adjustment to accept or reject" expert opinions), certif. denied, 113 N.J. 655 (1988). McSweeney expressed familiarity with the PQ, the surrounding area, and the relevant zoning requirements. Furthermore, although Sohn argues otherwise, McSweeney, who was familiar with buffer requirements in general, stated that he knew GC was required to provide additional plantings to increase the buffer between the PQ and the industrial park. Based on his knowledge of the area, McSweeney concluded that the PQ was better suited to two residences rather than just one. His lack of knowledge regarding the Township's master plan did not, as Sohn contends, compromise his opinion because the Board was free "to accept or reject" his opinions as it saw fit. Allen, supra, 227 N.J. Super. at 581.
Second, while it is clear the Board relied heavily on McSweeney's opinion in making its decision, such reliance was not arbitrary and capricious, particularly in light of Sohn's failure to provide a conflicting expert opinion. See, New York SMSA, L.P. v. Bd. of Adj., Tp. of Weehawken, 370 N.J. Super. 319, 338 (App. Div. 2004) (rejecting board's decision not to rely on expert when it heard no contradictory testimony). In its thorough and well-reasoned resolution, the Board relied on the statutory requirements and supporting each with appropriate factual findings. Ultimately, the Board concluded that a grant of the (c)(2) variance was statutorily warranted and would better serve the community as a whole.
In Kaufmann, supra, 110 N.J. at 563, the Court was confronted with circumstances similar to the facts presented here. In Kaufmann, a property owner sought a (c)(2) variance to subdivide his lot into two lots, which would result in less road frontage than was required under the ordinance. The Court found that denial of the variance would result in a single lot significantly larger than "the norm," whereas allowing the subdivision would result in properties only slightly smaller than "the norm." Id. at 564. Although the town's planner was vague as to how the subdivision would benefit the community, the Court determined that the resulting "more harmonious lot sizes" were sufficient to substantially outweigh any potential detriment. Id. at 565. The Court stated that the board need only show that, based on adequate proof and without arbitrariness, any harms are substantially outweighed by the resulting benefits. Ibid. Although the planner did not testify as to the basis behind his conclusion that no detriment would result, the Court noted that expert testimony is not always required to sustain a board's finding and affirmed the grant. Ibid.
As in Kaufmann, the Board here determined that the subdivided lots, although still larger than the R-3/2 lots, satisfied the positive and negative statutory criteria and were generally more in conformance with the community than the single lot would be if GC's subdivision request were denied. In other words, the Board could either deny the request and associated variances, resulting in one large lot that would either be substantially undersized for a ROM zone or substantially oversized for an R-3/2 zone (and still requiring variance relief for usage), or grant the variance, resulting in two lots that were each only somewhat larger than those in an R-3/2 zone. The Board's decision to grant the (c)(2) variance and subdivision approval, which was based on credible evidence in the record, was neither arbitrary nor capricious.
Sohn argues that allowing two residences in close proximity to industrial activity fails to satisfy the negative criteria required for grant of a (c)(2) variance. He asserts that the Board was obligated to protect future homeowners from any potential negative impact, and its failure to do so warrants reversal.
N.J.S.A. 40:55D-70(d) establishes the negative criteria for a (c)(2) variance and states that approval is warranted only when it will not result in "substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." Here, the Board determined that GC's proposal met the negative criteria because it resulted in lots that were more compatible with the surrounding area, and it preserved the "rural residential character" of the neighborhood. By contrast, requiring usage of the PQ consistent with the ROM zone would "have a significant negative impact upon abutting residential properties and in all likelihood would result in the loss of the conservation easement." Moreover, such usage was not feasible because of the PQ's unique nature and its incompatibility with the existing ROM zoning regulations. The Board's conclusion that GC satisfied the negative criteria for a (c)(2) variance was well-supported by the record. Kramer, supra, 45 N.J. at 296-97.
Finally, Sohn contends that, even if GC's subdivision plans met the statutory criteria, the Board was not obligated to approve them if they posed a danger to the general welfare, relying upon El Shaer v. Planning Bd. of Lawrence, 249 N.J. Super. 323, 327-28 (App. Div.), certif. denied, 127 N.J. 546 (1991). This argument is unavailing.
In El Shaer, a subdivision application was not approved because, although the bulk requirements of the development ordinance were met, problems engendered by the physical properties of the land, such as traffic flow and drainage issues, posed a danger to the public welfare. Id. at 328. In Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 228-29 (1994), however, the Court found the reasoning in El Shaer too broad, stating that compliance with local ordinances and the MLUL was sufficient for approval of a proposed subdivision. Ibid. In creating more specific subdivision ordinances, the municipality should look to the MLUL for guidance and may incorporate some amount of "discretion in the protection of the public interest." Id. at 229-30. In general, boards should look to the purposes of MLUL and satisfaction of statutory conditions, with "'total suitability'  still a legitimate goal of municipal land-use ordinances." Id. at 230 (citation omitted).
Even if the Board was required to consider potential danger to the public welfare, Sohn did not offer expert testimony to that end. Instead, Sohn asserted that allowing subdivision of the PQ would lessen future owners' privacy and increase the chance that they would complain about noise, light, or smell from the industrial park. While these issues were of paramount concern to plaintiffs, the record does not support a conclusion that there was a danger to the general welfare. As McSweeney noted at the hearing, any residence built on the property was only required to be setback seventy-five feet from the park, regardless of whether one, two, or more homes were built. If GC were to build only a single residence, it could build it just as close to the industrial park as the proposed second residence under the subdivision plans.
We are satisfied that Judge Coyle correctly found that the action of the zoning board was appropriate.