On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7963-07.
The opinion of the court was delivered by: Axelrad, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Fisher and Sapp-Peterson*fn1.
In this action in lieu of prerogative writs, plaintiff Daniel Reich, D.M.D., a periodontist, appeals from an order of the Law Division affirming the decision of defendant, Borough of Fort Lee Zoning Board of Adjustment (Board), interpreting the simultaneous occupation of the dental office by him and the existing endodontist to be an expansion of the nonconforming use, and denying plaintiff's variance application. The court found the Board did not act arbitrarily, dismissed with prejudice plaintiff's complaint, and entered judgment in favor of the Board.
On appeal, plaintiff argues: (1) the Board erred in finding the addition of a second dentist in Dr. Tsoucaris' office constituted an expansion of a pre-existing nonconforming use requiring a variance; (2) plaintiff's variance application should have been regarded as a request for a conditional use rather than a request to expand a nonconforming use; (3) the Board acted arbitrarily and capriciously in denying his application when it had previously approved identical applications in the same complex; and (4) even assuming the proposal was an expansion of a nonconforming use, the Board acted arbitrarily, particularly in rejecting testimony of plaintiff's experts and accepting unsubstantiated lay testimony regarding parking. Based on our review of the record and applicable law, we reverse.
This appeal centers around the desire of Dr. Stephen Tsoucaris, an endodontist, to modify his existing lease with plaintiff, his periodontist tenant in the office condominium unit in Fort Lee (the Borough), to allow there to be an overlap in presence. The evidence presented is that Fountainview Gardens (Fountainview) is comprised of five separate three-story buildings in an R-5 garden apartment residential zone on Anderson Avenue, a heavily traveled thoroughfare. There are a little league baseball field and a park to the south of the complex and single-family residences directly across the street. The complex was constructed in the l960s as rental units and was converted to condominiums in l983. There are fourteen offices located on the ground floor of the various buildings, mostly of a medical and dental nature. The residential apartments are located on the upper two floors.
The occupation of the units as professional offices predated the enactment of both section 410-35A(5)(a) of the Fort Lee Zoning Code, which permits, as accessory uses, professional offices in apartment buildings located in an R-5 zone, provided they are "located on the ground floor and access to same is limited from within the building or structure[,]" and section 410-40, which established minimum parking requirements for that use. Specifically, section 410-40B established the off-street parking requirements for a medical or dental clinic or office to be "7 [spaces] for each medical practitioner, plus l for each employee in the maximum work shift or 1 for every l50 square feet, whichever is greater." All of Fountainview's professional offices are accessed through individual entries off Anderson Avenue, which feature a private vestibule enclosed on either side by an outer door facing the street, and an inner door which opens into the unit. As built, Fountainview provides limited parking available only to the residential unit owners; no parking is provided for the first floor commercial tenants.
In 2001, Dr. Tsoucaris purchased a 2200 square foot unit in building 1323 of Fountainview, one of the largest commercial units in the complex, and began operating an endodontics dental practice. Dr. Tsoucaris received approval for seven operatories (treatment rooms), in which he installed plumbing and electrical, but used only half the space in his unit, approximately ll00 square feet, which included three of the plumbed operatories.*fn3
In 2003, Dr. Tsoucaris was issued a cease and desist order based on complaints that a second doctor was practicing in his office in violation of the unit's single certificate of occupancy (C.O.). He appealed to the Board, explaining he was a sole practitioner with offices in New Jersey and New York and had hired an associate to cover his emergency patients in New Jersey on days he was not working there. According to the meeting minutes, though not codified in a resolution, the Board voted to adopt its attorney's interpretation that "[a]s long as l Doctor is occupying the practice at one time, it's a permitted use" as "you are allowed to have a medical office at that facility with one doctor practicing at one time. In a case of emergency [where the two were working there at the same time], that would violate the certificate of occupancy but that is an enforcement issue." The Chairman phrased the motion as "[t]here could be as many as he wants as long as it is one at a time."
Since September 2005, plaintiff has rented the subject property, primarily using one of the three operatories on Wednesdays and occasionally on Sundays when Dr. Tsoucaris was not practicing there. In 2006, plaintiff indicated a desire to increase his use of the premises, which would result in the two dentists occasionally overlapping in presence. Plaintiff and Dr. Tsoucaris intended to share the 2200 square feet of space, each occupying about ll00 square feet. In addition to the three existing operatories that Dr. Tsoucaris would continue to use, the two plumbed but unfurnished operatories would be equipped with chairs for plaintiff's use. Plaintiff would occupy one side of the unit, comprised of a laboratory, two operatories, an office and a reception area. The dentists would share a waiting area and a handicapped bathroom. No construction would be necessary to effectuate the plan and the physical footprint of the unit would not change. Dr. Tsoucaris operated his practice by appointment on Mondays, Tuesdays, Thursdays, Fridays and "some Saturdays," averaging about thirty hours per week. Plaintiff anticipated initially expanding his hours to include Friday appointments and contemplated hiring a receptionist, assistant and hygienist if his practice became successful.
On August 8, 2006, plaintiff applied for a C.O., which was denied by defendant Einar Swanson, the construction official, on the basis of the Board's 2003 interpretation, which he deemed to prohibit Dr. Tsoucaris from "increas[ing] the practice to occupy two practitioners."
On October l9, 2006, plaintiff filed an application with the Board, accompanied by a Development and Impact Statement explaining that he sought an interpretation of the construction official's decision and requested permission to operate his periodontics practice within the currently occupied dental office suite at Fountainview "as a permitted use within the Zone representing a non-expansion and non-intensification of the premises." He primarily relied upon the Board's prior analysis and interpretation reflected in the March 28, 1996 resolution adopted in In the Matter of the Application of Robert Poli, D.M.D., Docket No. 5-96, granting approval to Dr. Poli to occupy 900 square feet of an l800 square foot office space occupied by Dr. Stephen Haber (Unit 1319-C at Fountainview).*fn4 The decision was based on a finding the occupancy was not an expansion of a nonconforming use because no expansion of the area was proposed and the planned use and occupancy continued to be a dentist's office, thus entitling the applicant to a C.O. Plaintiff submitted the December 11, 1991 affidavit of John Gigante, the former president of Fountainview, which Dr. Poli had submitted in support of his application, documenting the professional offices maintained there dating back to the early l960s. He also provided a list of professional offices currently maintained at four of the Fountainview buildings.
At some point before the Board hearings, plaintiff was instructed by the Board attorney to amend his application to include a request for a "d" variance, N.J.S.A. 40:55D-70d, as alternative relief due to the fact that Dr. Tsoucaris' office was not accessed through an interior lobby, but through an exterior entrance off Anderson Avenue.*fn5 Plaintiff thus amended his application to include a request for an unspecified variance as alternative relief.*fn6
Hearings were held before the Board on March 13, April 11, and May 22, 2007. Throughout the proceedings, plaintiff's counsel consistently contended he was seeking a separate C.O. for plaintiff but did not need a variance because the underlying medical use was a permitted accessory use in the zone and he was merely adding another doctor to the office. He acknowledged the parking and interior access requirements were nonconforming but emphasized that the use of the premises was not changing. Counsel explained he filed the alternative request solely because the Board's attorney was of the opinion there could be a potential need for a "d" variance if there were an issue regarding whether the office complies with the interior vestibule requirement of section 4l0-35A.
At the various hearings before the Board, plaintiff and Dr. Tsoucaris testified. Plaintiff also presented the testimony of an architect, Vassilios Cocoros; a professional planner, David Spatz; and a traffic engineer, Craig Peregoy. Fountainview's Condominium Association appeared as an objector through its board president and a board member. A Fountainview resident who lived above Dr. Tsoucaris' unit also testified, as did a resident of a single-family home on an abutting street.
In addition to the facts previously stated, Dr. Tsoucaris testified that "the design of the office was always as such that a second specialist would be there [as] [t]he office was designed to be like a book, that two people could operate independently in their own space without interruption." He further testified it was always his intention to have a complementary specialty in the unit, and the specialties of periodontics and endodontics complement each other nicely. According to both Dr. Tsoucaris and plaintiff, the average length of time to treat a patient was about an hour to an hour and a half. Dr. Tsoucaris also explained that a row of cabinets about fifteen feet ...