April 27, 2009
GAN YALDENU NURSERY SCHOOL, PLAINTIFF-APPELLANT,
TEANECK BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 difficulty with neighbors." The Board also found that the testimony of plaintiff's manager minimized the impact of the school's operation and was evasive.
The Board also found that there were no reasonable conditions that could be imposed to ameliorate the negative factors. Finally, the Board found that the negative factors outweighed the positive factors.
In its appeal to the Law Division, plaintiff urged the judge to follow an unreported decision of this court, Lollipop Day Nursery School v. Park Ridge Zoning Board, A-6698-94 (February 28, 1997).*fn2 In his June 16, 2008 opinion, Judge Joseph Conte found that the decision by the Board was not arbitrary, capricious or unreasonable. He found that the findings of fact contained in the Board's resolution were supported by the record. He stated that there was ample evidence from which the Board could conclude that the expansion of the play area into the reconstructed garage would intensify the nonconforming use, as would the revised parking pattern in the narrow driveway and the insufficient number of proposed parking spaces. Judge Conte also found that the Board had the discretion to evaluate the credibility of plaintiff's representative and to doubt her representations when evidence demonstrated that she had conducted activities on the site in the past beyond those permitted. The judge also found that the record supports the Board finding that the negative factors far outweigh the benefits conferred on the community by this school use. The judge acknowledged that a nursery school is a beneficial use but noted the absence of any evidence demonstrating the need for the intensification of this use at this site.
Finally, Judge Conte held that our unreported decision in Lollipop Day Nursery was distinguishable from plaintiff's case. He noted that there were many factors in this case, such as the proposed parking, the narrow driveway, and the existing residential use, that contributed to the decision that the site was over-burdened. He also observed that the need to expand the play area and to relocate it from the basement to the reconstructed building was caused by an increase in enrollment.
Further, he found the proposed relief impermissibly intensified the use.
On appeal, plaintiff argues that Judge Conte erred because the Board decision is arbitrary, capricious and unreasonable, the Board ignored the fact that the principal use of the structure was to further an inherently beneficial use, and the Board did not properly balance the positive and negative factors. Plaintiff also contends that the trial judge and the Board erred by failing to follow our unreported opinion in Lollipop Day Nursery and that plaintiff had not created a hardship by adding a classroom in the basement, thereby constricting the storage and play areas. Finally, plaintiff argues that the Board and the trial judge gave undue weight to prior applications and the credibility of plaintiff's owner.
Our review of a decision by a board of adjustment to deny an application for variances is narrow. We are governed by the same standard applicable to the Law Division judge. Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296-97 (1965). That is, we may not substitute our judgment for that of the board of adjustment unless the decision is arbitrary, capricious, or unreasonable. Harvard Enters., Inc. v. Bd. of Adjustment of Madison, 56 N.J. 362, 368 (1970). A reviewing court will not set aside a local decision on a zoning application "in the absence of clear abuse of discretion by the public agencies involved." Kramer, supra, 45 N.J. at 296-97.
"Variance questions are entrusted to the sound discretion of the municipal zoning board hearing the application." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App. Div. 2001). "The Legislature has recognized that local citizens familiar with a community's characteristics and interests are best equipped to assess the merits of variance applications." Ibid. "Accordingly, courts reviewing a municipal board's action on zoning and planning matters, such as variance applications, are limited to determining whether the board's decision was arbitrary, unreasonable, or capricious." Ibid.
Greater deference is given to variance denials because variances subvert the zoning plan. Cerdel Constr. Co. v. Twp. Comm. of E. Hanover, 86 N.J. 303, 307 (1981); Mahler v. Bd. of Adjustment of Fair Lawn, 94 N.J. Super. 173, 186 (App. Div. 1967), aff'd o.b., 55 N.J. 1 (1969). Accordingly, "[u]se variances are appropriate only in exceptional cases." Stop & Shop Supermarket Co. v. Bd. of Adjustment of Springfield, 315 N.J. Super. 427, 434 (App. Div. 1998), rev'd on other grounds, 162 N.J. 418 (2000).
Here, the primary relief sought by plaintiff was a variance to use a reconstructed garage as part of its existing nursery school. While the nursery school use is nonconforming, it is also an inherently beneficial use. Its inherently beneficial status, however, does not compel issuance of a variance that will intensify the nonconforming use on an already overburdened site, particularly when plaintiff's preapplication conduct created concerns about the credibility of plaintiff's assurances that enrollment would remain stable.
In addition, plaintiff's reliance on our unreported decision in Lollipop Day Nursery is misplaced. In that case, we held that the structural modification proposed by the school would not constitute a functional intensification of the non-conforming use because the school proposed placing a second story on an existing one-story building. Here, however, plaintiff proposed use by the school of a building on a site that had never been actively used by the school. Use of the reconstructed garage by the school would spread school activities beyond the confines of one building to a second building, thereby intensifying the nonconforming use.
We affirm substantially for the reasons expressed by Judge Conte in his June 16, 2008 opinion.