On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-841-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 11, 2009
Before Judges Axelrad and Parrillo.
In this action in lieu of prerogative writs, plaintiffs Paul and Anne Sobel appeal from an order of the Law Division entering judgment affirming the decision of defendant, Pennington Borough Planning Board (Board)*fn1 granting a use variance, N.J.S.A. 40:55D-70d(1), and site plan approval with bulk variances to defendant, Thirty One North Main Properties, L.L.C. (Thirty One or applicant). The use variance permitted Thirty One to formally eliminate the residential unit requirement of the Office-Residential (O-R) zone and operate the premises solely as a dental office. Appellants are neighbors who objected to the application. We affirm.
By way of background, Thirty One is the owner of the property located at 31 North Main Street in Pennington, which is in an O-R zone. Appellants reside at 39 North Main Street, immediately adjacent to the property on the northern border. The subject property adjoins residential uses in the R-80 zones to the north and east, and a residential use in the O-R zone associated with a funeral home to the south. The property is located across the street from the Town Center (TC) and Town Center Buffer (TCB) zones.
The property is improved with an existing two-story dwelling consisting of approximately 3,278 square feet of space and utilized as dental offices. The property previously had been used jointly as a residence and a medical or dental office dating back to the l920s. The residential use most recently consisted of an efficiency apartment located on the second floor of the building until May 2005, when the tenant vacated and the applicant converted the upstairs apartment to a staff lounge for its dental practice. The applicant thereafter sought an opinion from the zoning officer as to whether planning board review would be required to renovate the upstairs apartment and convert its use to a new dental operatory room. According to the applicant, on August 24, 2005, the zoning officer agreed that no planning board review would be required but permits would have to be obtained.
On September l2, 2006, Thirty One applied to the Board for preliminary and final site plan approval in connection with the proposed construction of a 1,908 square foot, one-story addition to the existing structure; a parking lot containing twelve spaces; and associated landscaping, lighting, and storm water management site improvements. At the initial Board hearing on November 8, 2006, at the recommendation of the Board's planner, Thirty One amended its application to include a request for a use variance pursuant to N.J.S.A. 40:55D-70d. The reason for the use variance was because the O-R zone, which permits "the use of a portion of a residential structure for office purposes in order to preserve a residential area character while providing a transitional use from residential to business in areas of the Borough appropriate for such transition[,]" requires that "[a]t least one dwelling unit shall be maintained within each single-ownership structure occupied by a permitted office use." Borough of Pennington, N.J., Code, art. I, § 215-70 O-R Office-Residence Zone, A, E(2)(a).
On November 8 and December 13, 2006, and January 10, 2007, the Board conducted hearings and considered testimony from: David H. Goodman, D.M.D., applicant's principal; Paul Pogorzelski, applicant's engineer and professional planner; William Charleroy, applicant's architect; Cindy Coppola, the Board's planner; John Flemming, the Board's zoning officer; Don Petsero, the Board's engineer; Michael Jovishoff, appellants' planner; and various community residents, including appellants. The Board also considered numerous reports and exhibits.
At the hearing on January l0, 2007, the Board unanimously voted to approve the application for a use variance, and preliminary and final site plan approval with bulk variances, memorializing the approval in a February l4, 2007 Resolution.
Appellants filed a complaint in lieu of prerogative writs against the Board and applicant, alleging: (1) the decision was arbitrary, capricious, and unreasonable based on insufficient evidence in the record to support the grant of the use variance; (2) the approval was arbitrary, capricious, and unreasonable because the resolution lacked adequate findings of fact and conclusions of law regarding the use variance; (3) the applicant failed to seek, and the Board failed to grant, a variance from Pennington Borough Code § 215-70E(2)(b);*fn2 and (4) the applicant failed to meet the enhanced burden of proof required for a use variance by failing to demonstrate: (a) special reasons existed to support the grant of the use variance; and (b) the negative criteria was satisfied to justify the grant of the use variance. Accordingly, appellants sought to invalidate the Board's decision approving the application and declare the current use of the property illegal.*fn3
After answers and briefs were filed, Judge Feinberg heard oral argument. The court preliminarily stated the matter did not involve an expansion of a nonconforming use and the appropriate analysis of the application was as a "d(1)" use variance, which it appeared the Board did, although there were some inconsistencies in the Resolution. Based on the issues raised, on February 21, 2008, the court signed an order remanding the matter to the Board. The remand order instructed the Board to consider adopting a resolution supplementing, amending, and/or clarifying its findings of fact and conclusions of law set forth in its February l4, 2007 Resolution. Specifically, the Board was advised to clarify whether the use variance approval granted to applicant was pursuant to N.J.S.A. 40:55D-70d(1) or N.J.S.A. 40:55D-70d(2).*fn4 The Board was further directed to determine whether the term "nonconforming use" in its Resolution was done in error.
On March 12, 2008, the Board adopted a clarifying and amending Resolution, reaffirming its satisfaction that the "application is in the public interest and is in compliance with the applicable standards set by the Municipal Land Use Law and the Pennington Borough Zoning Ordinance." The Resolution further provided, in pertinent part, its reaffirmance that the record supported the finding that applicant "satisfied the requisite criteria for a use variance pursuant to N.J.S.A. 40:55D-70d(1), to deviate from § 215-70E(2)(a) of the Pennington Borough Zoning Ordinance, in order to permit the use of the entire dwelling structure and proposed addition for professional [dental] office purposes without a residential dwelling unit on the subject property" and "the proposed addition is in keeping with the residential appearance of the existing structure, is in conformity with §§ 215-70A and -70E(2)(b) of the Borough's Zoning Ordinance, and that the appearance of the existing dwelling itself from North Main Street will be preserved as part of these improvements." The Board also clarified that its references to an "expansion" of a "nonconforming use" were "inadvertently used colloquially as the Applicant was expanding the professional office use of the building into the residential portion of the structure, which was non-conforming under the Borough's Zoning Ordinance." The Resolution contained the following amended statement of its findings of fact for the grant of applicant's use variance:
A. The Board finds that there will be no substantial detriment to the public good and there will be no substantial detriment to the zone plan and zoning ordinance by reason of the grant of the requested use variance to eliminate the residential dwelling unit requirement of the [O-R] zone. The expansion of the dental offices is an expansion of a non-conforming use because of the Applicant's discontinuation of The Applicant discontinued the former residential use of on the second floor of the building in 2005. Professional office use is a principal permitted use in the O-R Zone, albeit in conjunction with a residential use. Although the residential unit was abandoned a few years ago, there was no external/visible change to the Property as a result. Using the Property for professional office use has been well suited for the area of North Main Street wherein the Property is located since the l940's. The Property is a large, oversized property in the O-R Zone which can accommodate the proposed expansion of the dental offices. The Applicant has proposed substantial buffering for the residential properties to the north and east. The Property, although located in the O-R Zone, is a transitional ...