On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5546-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 25, 2009
Before Judges Cuff and C.L. Miniman.
Plaintiff Gan Yaldenu Nursery School appeals from an order affirming the denial of a variance to use a reconstructed garage for school activities. We affirm.
Plaintiff purchased property in the Township of Teaneck in 1989 commonly known as 85 Copley Avenue. The lot is seventy- five feet wide and 310 feet deep. When purchased, and for the prior seventy years, the property contained a principal structure in which the nursery school operated in the basement and first floor, and a two-bedroom apartment occupied the second floor. The property also contained a detached three-car garage. In 1989, the nursery school and the apartment were pre-existing nonconforming uses and the town issued a certificate of occupancy for the current uses. The property is currently located in a zone where nursery schools are a conditional use. The structure in which the nursery school is located conforms with bulk requirements of the zone. The school structure and the garage also conform to the lot coverage restrictions.*fn1
During the school year, plaintiff operates a nursery school and day care facility. During the summer, plaintiff operates a summer camp. Forty-nine students between the ages of two and one-half and five are enrolled in the school. Six full-time and two part-time employees work at the school.
The Township ordered plaintiff to remove the garage due to its dilapidated condition. Plaintiff removed the garage, obtained a building permit and reconstructed the garage. The new one-story structure contains 660 square feet with ten to twelve feet ceilings, and a roof deck. As constructed, it cannot be used to garage cars.
Plaintiff sought a variance to use the new structure as a play area and storage space. Plaintiff did not propose any enrollment increase. Plaintiff also sought site plan approval, expansion of its nonconforming use, expansion of its conditional use, a variance for five parking spaces from the required twelve, a variance to allow parking in the driveway, and a variance to allow a twenty-one-foot driveway rather than the required twenty-four-foot driveway.
Plaintiff presented evidence that three classrooms and a kitchenette are located on the first floor, and one classroom, a play area and storage are located in the basement. The classroom in the basement was added when plaintiff increased enrollment. Plaintiff stated that the play area is cramped and the low ceiling height does not allow climbing equipment. Plaintiff proposed to relocate the play area to the reconstructed garage and sought to allay fears of an enrollment expansion. Plaintiff initially asserted that the garage was and would remain unheated but then stated that heat was required for use as a play area. Plaintiff also asserted that the garage structure was currently used only for storage but later conceded that it had used the roof deck for three graduation ceremonies.
Plaintiff also conceded that the Township ordered it not to use the roof deck for such ceremonies but had used it for a graduation ceremony after ordered not to do so.
Neighbors objected to the variances sought by plaintiff. They expressed concerns about noise, drainage, parking, and bonfires. They expressed concerns about traffic on the narrow residential street during drop-off and pick-up times. A representative of the local police department, however, reported no traffic complaints related to the operation of the nursery school.
On June 7, 2007, defendant Teaneck Board of Adjustment (Board) adopted a resolution denying plaintiff's application. Initially, the Board referred to two prior applications, 1995 and 1998, to expand the school; both were denied. The Board proceeded to find that the proposed use would allow plaintiff to operate at capacity year round and would expand the prior use. The Board described the current use as "very intense" and found that the proposed use would "further intensify this existing nonconforming use."
The Board also considered the factors required by Sica v. Board of Adjustment of Wall, 127 N.J. 152 (1992). It found that the nursery school was a beneficial use, but there was no special need because other day care centers and nursery schools operated in the town. The Board also found that the site was currently overburdened, that the narrow lot made parking and drop-offs and pick-ups difficult, that the existing apartment contributed to the overburdening of the site, and the proposed changes could not be instituted consistent with good engineering practices. The Board also cited "a history of ...