On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-2699-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Yannotti.
Defendant Gold Medal Fitness, Inc. (Gold Medal) appeals from a judgment entered on January 29, 2008 vacating a resolution by the Borough of Garwood Planning Board (Board). The Board had granted use and bulk variances to Gold Medal to expand its existing health club to include operation of a Parisi Speed School (Speed School) franchise for specialized athletic performance training for children. We reverse and remand.
In April 2006, Gold Medal made an application to the Board for site plan approval, use and bulk variances for the expansion of its health club, which is located in a shopping center zoned for light industrial use. Plaintiff, Village Supermarkets, Inc., operates a ShopRite supermarket in the same shopping center.
After a hearing, at which plaintiff made no objections, the Board granted preliminary and final site plan approval with the use and bulk variances. The approval was memorialized in a resolution dated May 24, 2006. A certificate of occupancy was issued on February 12, 2007.
In the interim between the adoption of the resolution and the issuance of the certificate of occupancy, plaintiff filed a complaint in lieu of prerogative writs alleging that the Board's grant of the variances was arbitrary and capricious. ShopRite objected to Gold Medal's application, complaining that the proposed non-conforming use would bring parking, traffic and safety concerns to the property. ShopRite contended that Gold Medal did not demonstrate an inherently beneficial use, nor did it demonstrate that it would suffer any undue hardship if the variances were not granted.
Gold Medal's owner, Gary Patti, testified at the Board hearing that the health club currently has 2,400 members and is open from 5:00 a.m. to 11:00 p.m. Monday through Thursday, 5:00 a.m. to 9:00 p.m. on Friday and 7:00 a.m. to 6:00 p.m. on Saturday and Sunday. Patti testified that the Speed School trains children from ages seven to thirteen during after-school hours and on Saturdays.
Defendant ACP Properties (ACP) is the owner of the shopping center. ACP's representative testified that the area is in retail use, not industrial. He did not dispute that there was a parking deficiency, but believed that Gold Medal's operation would generate less parking demand than another retail operation.
In March 2007, the trial court remanded the matter to the Board for the limited purpose of amending the resolution. The amended resolution approving the application was adopted on May 9, 2007. In the amended resolution, the Board made detailed findings of fact, specifically that a retail use of the property would create a greater burden on available parking than would the proposed use; that parking would be sufficient for the proposed use; that there was a parking deficiency of only six or eight spaces; that the bulk variances and design waivers were pre-existing; that the proposed use of the site would be more aesthetically pleasing than a light industrial use; that the proposed use was particularly suited to the site; that strict application of the zoning ordinance would be a hardship to Gold Medal; and that special reasons existed to grant the use variance. Plaintiff continued to object, however, and the matter was argued before the trial court in January 2008. Thereafter, the court entered judgment vacating the Board's approval.
After hearing arguments from the parties, the trial court determined that there was insufficient evidence on the positive and negative criteria for a use variance under N.J.S.A. 40:55D-70(d), and that the Board did not find any reason why the applicant would suffer an undue hardship if the application was not granted. The court vacated the approval on the ground that it was arbitrary and capricious.
In this appeal, Gold Medal argues that the trial court erred in reversing the Board's approval. We agree. The decision of a municipal zoning board gives rise to a rebuttable presumption that the board properly exercised its discretion.
Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965). The court may not substitute its judgment for that of the zoning board unless the objector proves that the board's action was unreasonable, arbitrary or capricious. Id. at 296-97. Our scope of review is similarly limited to a determination of whether the board's decision was unreasonable, arbitrary or capricious. Booth v. Bd. of Adjustment of Rockaway, 50 N.J. 302, 306 (1967); Kramer, supra, 45 N.J. at 296-97; Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004). While we generally defer to the board's factual determinations, its construction or interpretation of a local ordinance is subject ...