On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6375-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Baxter.
Plaintiff Seung Chang appeals from a May 20, 2008 Law Division order that affirmed a June 11, 2007 resolution of the Board of Adjustment of the Borough of Roseland (Board), in which the Board denied his request for a use variance to operate a nail salon in a multi-family residential zone. We affirm.
Plaintiff is the lessee of property located at 10 Eisenhower Parkway in Roseland. Although the narrow lot in question consists of one acre, plaintiff's lease applies only to the northernmost twenty percent of the property, on which a 900 square foot single-story building is situated. The remaining eighty percent of the lot, situated behind a fence, is not leased by plaintiff and was not the subject of his application before the Board. The owner of the property, Alden Equities, had been using the property as a fuel oil company for a number of years prior to the time plaintiff submitted his application for a use variance.
The property is located in the R-6 residential zone, which permits townhouses, garden apartments, public parks, playgrounds, and family daycare homes. Significantly, the Roseland zoning ordinance specifies a five-acre minimum lot size for townhouses and a nine-acre minimum for garden apartments. Consequently, it was impossible for the property to be used for any of the purposes permitted in the R-6 zone. Other than the subject property, the only other lot in the R-6 zone is an apartment complex known as Nob Hill.
The property is located across the street from a business zone where nail salons are a permitted use. In fact, within that business zone, and within 300 yards of the property in question, there were two existing nail salons.
At the public hearing on May 14, 2007, the Board decided to bifurcate the proceeding by addressing the use variance at the first hearing, and deferring consideration of the site plan to a later date. Plaintiff presented the testimony of Joseph Jaworski, an engineer, who testified on the subject of vehicular access to the site, and commented that the site would produce a small amount of traffic, namely two or three cars an hour. Jaworski opined that the proposed use as a nail salon was less intense than other retail uses such as a convenience store. Jaworski also opined that the site plan presented by plaintiff provided adequate ingress and egress. During the course of the hearing, plaintiff agreed to make any changes to the site the Board suggested, including signage and road striping.
Plaintiff testified that he intended to have no more than three employees working at any one time, and that over the course of a busy day, he expected no more than twenty-five customers. He also testified that he intended to transport his employees to the site in a single vehicle.
Plaintiff's final witness was David Zimmerman, a licensed professional planner who opined that the use of the property as a nail salon would be "on the low end in terms of the intensity of use." Zimmerman also opined that "a commercial use of one form or another is probably . . . the most realistic use of the property," and consequently the application in question constituted "the most appropriate use for the property." He further opined that the grant of the variance would not present a serious or substantial impairment to the master plan or the zone plan, nor would the granting of the application have a substantially negative impact upon the public good. Finally, he commented that the property was "too strange a piece of property, long and narrow . . . [to enable its use] for a garden apartment or townhouse."
The Board heard testimony from its professional planner, Jamie Sunyak, who testified that plaintiff's plan did not satisfy the Municipal Land Use Law's (MLUL) goal of providing a desirable visual environment through creative development techniques and good design. Sunyak also testified that the remaining unused area of the lot raised a substantial question as to whether the proposed use is particularly well-suited to the property, which, she explained, is a requirement for the granting of a use variance.
By a vote of four in favor and three opposed, the Board denied plaintiff's request for a use variance.*fn1 The Board concluded that plaintiff failed to carry his burden of establishing that the proposed use of the property as a nail salon would serve the general welfare. The Board additionally held that plaintiff's proofs did not demonstrate that the proposed use was "particularly appropriate" for the site. The ...