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Sobel v. Thirty One North Main Street Properties


April 15, 2009


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-841-07.

Per curiam.


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 property surrounded by other Zoning Districts permitting other uses (R-80, TC and TCB). With the residential character continuing to be maintained on the Property with the proposed expansion of the existing dwelling, this Property will continue to function well as transitional property on North Main Street.

The trial court issued a fifty-one page written opinion on March l9, 2008, and Order for Judgment dated April 3, 2008, affirming the Board's decision granting Thirty One a "d(1)" use variance and site plan approval with bulk variances, as memorialized in its Resolution and amended Resolution. Judge Feinberg was satisfied with the Board's clarification, stating:

Based on these findings and the amendments made to the February l4, 2007 resolution [by the Board in its March 12, 2008 Resolution], the court is satisfied the Board adequately clarified that the use variance granted to applicant was pursuant to N.J.S.A. 40:55D-70(d)(1) and term "nonconforming use" was used in error. Although the court remanded this matter to obtain such clarification, there were also numerous references in the record to illustrate that the Board examined and, ultimately, granted the use variance pursuant to N.J.S.A. 40:55D-70(d)(1) and the term "nonconforming use" was not meant to indicate the Board considered the application or granted relief pursuant to N.J.S.A. 40:55D-70(d)(2).

The court found overwhelming evidence in the record to demonstrate that the Board "lawfully examined the application under the Medici*fn5 criteria" and granted it under the "d(1)" use variance standard. For instance, in his instructions to the Board prior to its vote on the use variance, the Board attorney focused the Board on evaluating the application pursuant to the "legal standards under the Medici decision," and advised the Board to consider the potential negative impact of the proposed use, particularly on appellants' property, and conditions that could be built into the site plan to reduce any negative impact, as well as the suitability of the site for the proposed use (positive criteria). Furthermore, one Board member then noted this application was "not the expansion of a nonconforming use," and there was no reference in the initial resolution to a use variance pursuant to N.J.S.A. 40:55D-70d(2).

The court further found the Board's grant of the use variance to eliminate the residential apartment was based on substantial evidence in the record, and was not arbitrary, capricious, or unreasonable, as argued by appellants. With extensive reference to the record, the court determined the Board satisfied the positive and negative criteria of N.J.S.A. 40:55D-70d, as well as the enhanced Medici standard. Furthermore, it "made clear and specific findings as to why the variance was granted in the resolution, notably that special reasons were present, the variance was not inconsistent with the Borough's zone plan, and there will be no substantial impact on any of the abutting property owners." This appeal ensued.

Appellants renew the arguments made to and rejected by the trial court. They acknowledge the court painstakingly reviewed the record, but argue it erred in finding the positive criteria for a use variance were met, contending the applicant failed to demonstrate the site was "particularly suitable" for the proposed use and thus did not demonstrate the required proof of "special reasons." Medici, supra, 107 N.J. at 4. More particularly, appellants contend the Board and court ignored their planner's testimony that the site, a "historically residential property adjacent to a residential community," was not a suitable location for "such an extensive modern [dental] facility" and his conclusion that the site was unsuited to the use "considering its size and considering the level of activity it's going to generate." Nor was there consideration of his testimony regarding limitations of the site, such as lack of on-site parking, and the availability of other locations within the borough that would be much more suitable for the proposed use and would better serve the general welfare of the community, such as the P-O zone that is specifically intended for medical offices. Instead, appellants urge, the Board myopically focused on the property's historical use as a dental office, completely disregarding its residential component; the oversized quality of the lot; and its classification as transitional with a number of different uses around it.

Appellants further contend the record does not support the demonstration of the first prong of the negative criteria, i.e., whether the use variance will cause "substantial detriment to the public good," or the enhanced quality of proof of the second prong, i.e., that the variance "is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici, supra, 107 N.J. at 21-22. Appellants again rely on the testimony of their planner that the applicant's proposal to expand and upgrade the building to create a modern office and operatory is "in direct contradiction to the intent of the Borough for development of this portion of Main Street and this property in particular." Jovishoff based this conclusion on the significance of the proposed expansion -- which he believed would create "a very significant alteration to the existing residential appearance of the property" and would "bear absolutely no resemblance to what the zoning intended as a professional office located within a residential structure" --and the configuration of the O-R zone, which is slightly more than one acre and consists of only two lots that buffer the residential areas to the north and east of the town center. Moreover, appellants contend the Board failed to make "clear and specific findings" that Medici's enhanced quality of proof was met, amounting to ultra vires rezoning. Id. at 21.

We are not persuaded by appellant's arguments and affirm substantially for the reasons set forth by Judge Feinberg in her comprehensive written opinion. We add the following comments.

Local officials who are familiar with the community's characteristics and interests are best equipped to pass on variance applications. Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965). Because of their particular knowledge of local conditions, municipal land use boards are allowed wide latitude in their delegated discretion. See Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005). A local board's decision is presumed valid, and the party challenging the decision has the burden of proving otherwise. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002). Accordingly, on appeal from a decision of a municipal board on zoning and planning matters, a reviewing court is limited to determining whether the Board's decision was arbitrary, capricious or unreasonable. Ibid.; see also Bressman v. Gash, 131 N.J. 517, 528-29 (1993) (the standard of review is the same for both the Law Division and an appellate tribunal). "[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. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58-59 (1999).

Judicial review is meant to be a determination of the validity of the board's action, not a substitute for the court's judgment for such local determination. As our Supreme Court stated:

Courts cannot substitute an independent judgment for that of the boards in areas of factual disputes; neither will they exercise anew the original jurisdiction of such boards or trespass on their administrative work. So long as the power exists to do the act complained of and there is substantial evidence to support it, the judicial branch of the government cannot interfere. A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.

[Medici, supra, 107 N.J. at 15 (internal citations omitted).]

As a threshold matter, we note the applicant's site plan for the building addition, parking, landscaping and storm water management improvements was fully conforming with the requirements of the O-R zone. Bulk variances for front yard and side yard setbacks, and slope ratio were granted for the pre-existing improvements not in conformity with the requirements of the O-R zone as the structure pre-dates the borough's zoning ordinance, which was adopted in l978. Accordingly, the Board granted preliminary and final site plan approval for the new addition, which was not challenged by appellants at the trial court or on appeal. Thus, the issue on appeal does not pertain to the physical expansion of Thirty One's existing dental office with associated site improvements. Rather, the sole issue is appellants' challenge to the use variance approval granted by the Board to deviate from the requirement of § 215-70E(2)(a) of the Pennington Zoning Ordinance and enable the applicant to eliminate a residential apartment within the expanded structure.

The Board approved Thirty One's use variance under N.J.S.A. 40:55D-70d(1), which authorizes its grant "[i]n particular cases for special reasons" to permit "a use or principal structure in a district restricted against such use or principal structure." It is the applicant's burden to show "special reasons," referred to as the positive statutory criteria. Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998). For a use such as the proposed one which does not "inherently" serve the public good, the applicant must prove, and the Board must specifically find, that the use promotes the general welfare because the "proposed site is particularly suitable for the proposed use." Medici, supra, 107 N.J. at 4. The applicant must also establish the negative criteria that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance, Smart, supra, 152 N.J. at 323. Furthermore, to assure the board of adjustment does not usurp the governing body's statutory authority to determine the municipality's zoning, the applicant must also show by "an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance[,]" and the board must make "clear and specific findings" that this showing has been made. Medici, supra, 107 N.J. at 21.

After reviewing the record we are satisfied, as was the trial court who performed a thorough analysis of the facts and law, that the Board's grant of the use variance "comport[ed] with the statutory criteria and is founded on adequate evidence," Burbridge v. Mine Hill, 117 N.J. 376, 385 (1990), was within the Board's discretion, and was not arbitrary, capricious or unreasonable. The court relied upon, and recited in its opinion in detail, eleven pages of expert and lay testimony drawn from an extensive record over three days of hearings, addressing and substantiating the requisite criteria. Moreover, as noted by the court, the Board's Resolution, as clarified, reflects its deliberations and findings of fact necessary to support its conclusion that the requirements for the grant of the use variance were met.

A land use board may choose to accept or reject testimony, and, where such choice is made reasonably, it is conclusive on appeal. Kramer, supra, 45 N.J. at 288. The Board had ample basis to essentially ignore the testimony of appellant's planner in favor of the testimony of appellant's and the Board's experts. Jovishoff did not listen to the tape of the first hearing, which he did not attend, and thus could not have considered the testimony of the applicant's planner during that hearing. He also admitted he had never been in Pennington except to examine the subject property briefly before testifying, and was unfamiliar with the character of other dental offices in the borough or other surrounding properties. Critically, Jovishoff incorrectly focused his testimony only on the physical expansion of the building; the size and level of activity the larger modern dental facility would generate pervaded his impression that the site was unsuitable, the neighborhood was adversely impacted, and the variance would be inimical to the overall zoning plan of the borough. Moreover, he inaccurately characterized the application as "the construction of a separate new commercial building on this property," rather than a new, one-story addition with similar residential details to match the two-story existing residential building. Jovishoff also conceded that if the building were not expanded and Thirty One had sought only to eliminate the residential component of the building, the application would not have the negative impact to which he testified. Moreover, he indicated there would be no benefit to appellants if Thirty One reinstated the residential apartment in the building (thereby negating the need for the use variance), as there would "still [be] the same negative impact on the expansion." (emphasis added).

In comparison, the applicant's and Board's experts discussed at length the site plan aspects but put them into context with the removal of the single efficiency dwelling unit, which was the only reason for the use variance, to show that the residential character of the dental office was not changing into a commercial office complex, the overall nature of the neighborhood dental practice as had operated for years was continuing, and the applicant was attempting to mitigate any negative impact on the neighbors with substantial buffering and shielded lighting. As the court detailed, the testimony of the applicant Goodman, the applicant's planner Pogorzelski, and the Board's planner Coppola, delineated and addressed the special reasons for the grant of the use variance, which reasons were memorialized in the Resolution.

Contrary to appellants' contention, the Board properly considered the following factors in finding the site was particularly well suited for its continued use: (1) its history; (2) its size; and (3) the transitional nature of the zone. Goodman testified that a medical practice has existed on the property since the l940s. Because of the success of his dental practice at its present location, he needed to physically expand and update the facility to continue serving the community's needs. Moreover, there is significantly less coverage on the lot than is permitted because the property is more than twice the lot size required by the O-R and, in fact, is considered unique in the borough because of its large size. Finally, the property is located in a transitional zone, situated among "mixed uses" with proximity to the town center. Moreover, as Coppola reminded the Board, professional offices are listed as a permitted primary use in the O-R zone, not as a secondary use and not as an ancillary use to a residential structure.

Judge Feinberg further analyzed the negative criteria, expressly citing to the testimony of Pogorzelski, Coppola, the applicant's engineer Petsero, and the applicant's architect Charleroy, who opined why the removal of the dwelling unit in connection with the expansion of the property would not adversely impact the neighborhood aesthetically or substantially impair the intent or purpose of the zoning plan. For example, Charleroy, the architect, testified that the design of the addition would mimic the design of surrounding residential buildings to maintain its residential character, and mitigating site plan features would be added to lessen any negative impact on the surrounding homes. Moreover, a significant indication that the formal removal of the minor residential use requirement would have no adverse impact was the fact the property had been operating solely as a dental practice since 2005 and there was no evidence of any detriment to the surrounding area or community.

There was also more than ample testimony and evidence to support the enhanced Medici factors to justify the grant of the use variance to Thirty One. The Board was satisfied that even without the residential component, applicant's building still continued to preserve the residential area character of the neighborhood while providing a transitional use from residential to business, consistent with the purpose of the O-R zone, § 215-70A. Furthermore, its members articulated their reasons and the findings were appropriately memorialized in the Resolution. For example, a Board member expressed the view that in keeping with the borough's Master Plan, the Board was mindful that having a dentist's office or other professional office in the downtown area has always been a part of the "vision," as opposed to forcing professional offices out to office complexes and "watching the downtown die." The Board took notice of three dental offices in the borough, all located in O-R zones and none currently having residential units. Within its local wisdom, the Board also imposed conditions on the applicant in approving the application as to site improvement issues of screening and lighting to further minimize any negative impact on the surrounding properties. As the law intended, the ultimate arbiters of the appropriateness of the use were the persons cumulatively possessed of decades of intimate personal knowledge concerning the history and conditions of its "Main Street," see Medici, supra, 107 N.J. at 14-15, and appellants have presented no legal basis for us to second-guess the local board's grant of the variance to Thirty One.


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