May 25, 2010
OLD CORLIES AVENUE PRESERVATION ASSOCIATION, A NEW JERSEY NON-PROFIT CORPORATION, A/K/A OLD CORLIES AVENUE PRESERVATION ALLIANCE AND JOYCE B. PYLE, PLAINTIFFS-APPELLANTS,
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF NEPTUNE AND 1019 OLD CORLIES ROAD, LLC, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5321-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 4, 2010
Before Judges Carchman and Ashrafi.
Plaintiffs Old Corlies Avenue Preservation Association and Joyce B. Pyle appeal from an order of the Law Division dated October 14, 2008, dismissing their complaint in lieu of prerogative writs. By that order, the Law Division affirmed the decision of defendant Zoning Board of Adjustment of the Township of Neptune granting a use variance, bulk and dimensional variances, and final site plan approval. Defendant 1019 Old Corlies Road, LLC, intends to build a combined car wash and express automobile oil and lube facility on property located at the intersection of State Highway 33 and Old Corlies Avenue.
Having reviewed the record of proceedings before the Board of Adjustment and the parties' briefs on this appeal, we affirm essentially for the reasons stated in the written opinion of Judge Lawrence M. Lawson, dated September 29, 2008. We add only these additional comments.
We reject plaintiffs' repeated contention that three use variances under N.J.S.A. 40:55D-70d were required for the development proposal because the applicant sought three separate prohibited uses - an automatic car wash, an express lube service, and an oil change service. The applicant was not required to make separate showings of special reasons under the criteria established in Medici v. BPR Co., 107 N.J. 1, 18 (1987), for each of the proposed related uses. The Board of Adjustment could consider whether the development proposal as a whole satisfied the criteria for a use variance under N.J.S.A. 40:55D-70d.
Next, plaintiffs contend that the board's decision should be set aside because it constitutes prohibited "zoning by variance" rather than by ordinance. The cases that have addressed the impropriety of the variance procedure being employed to usurp the zoning authority of a municipal governing body have focused on "whether the requested variance would substantially alter the character of the district as set forth in the applicable zoning ordinance." Twp. of N. Brunswick v. Zoning Bd. of Adj. of N. Brunswick, 378 N.J. Super. 485, 491 (App. Div.), certif. denied, 185 N.J. 266 (2005); accord Twp. of Dover v. Bd. of Adj. of Dover, 158 N.J. Super. 401, 412-13 (App. Div. 1978). The factors that are relevant to that determination are: (1) the size of the tract, (2) the relative size and character of the zoning district, (3) whether the tract will be subdivided into a number of lots, and (4) the nature and extent of the variation from the regulations applicable in that zoning district. Twp. of N. Brunswick, supra, 378 N.J. Super. at 491.
None of those factors is applicable here. The tract is less than one acre in area, it comprises only a fraction of the C-5 zoning district within the Township, the proposal includes no subdivision of the property, and the proposed use is similar to other uses in the Highway 33 corridor near the subject property. The Board did not re-zone by means of variance but performed its proper function in a typical application for variances.
Nor could the Township's designation of numerous specific permitted uses in the zoning ordinance, instead of categories of uses, alter the authority of the Board under the Municipal Land Use Law, N.J.S.A. 40:55D-70, to consider an application for a use variance. Although the governing body determined not to include car washes and lube and oil facilities as permitted uses in the C-5 zoning district, their exclusion did not deprive the Board of authority to consider the merits of an application for a variance.
Finally, plaintiffs contend for the first time on appeal that defendant Board failed to find that the applicant's stormwater management plan was in compliance with Township ordinances or with regulations of the Department of Environmental Protection. This contention was not pleaded in plaintiff's amended complaint in lieu of prerogative writs, and it was not raised before the Law Division. In the absence of jurisdictional grounds or "matters of great public interest," we will not consider a ground or argument raised for the first time on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); State v. Krause, 399 N.J. Super. 579, 583 (App. Div. 2008).
We conclude that the decision of the Board of Adjustment granting the application for variances and site plan approval was not arbitrary, capricious, or unreasonable. See New Brunswick Cellular v. Borough of S. Plainfield Bd. of Adj., 160 N.J. 1, 14 (1999); Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965).
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