On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-302-06 and L-3026-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Espinosa.
Plaintiff, Market Street Mission d/b/a Jersey Shore Rescue Mission (the Mission), appeals from the Law Division order affirming the City of Asbury Park Zoning Board's (Board) denial of its application for four use variances, while the Board cross-appeals the Law Division judge's initial determination that the proposed use of the property at issue was inherently beneficial. We reverse and remand with directions.
The Mission is a non-profit, non-denominational Christian organization that has ministered to the homeless and helpless in Morristown for over a century. It estimates that its ministry, over the years, has housed or fed, or both, millions of people. In January 2005, the Mission filed an application for four use variances in order to operate a rescue mission at property it owned in the City of Asbury Park (City). The property consists of a two-story commercial structure with adjacent land located partially in the light industrial zone (LI) and partially in the B-2 business zone. There are two residences located within the same block, as well as a residential area situated one block away. In the past, the property housed a religious institution and had been used for religious purposes, as well as a used car operation.
The Mission sought variances for a soup kitchen, a forty-person residence, a house of worship, and the continuance of the used automobile sales operation. The application also sought two waivers for drainage and soil borings. The Mission proposed to: (1) serve a hot meal every night to approximately 100 men, women, and children; (2) provide ecumenical religious services nightly on a voluntary basis; (3) house a total of thirty-seven homeless people on an emergency basis for no longer than seven days, who, between the hours of 7:00 a.m. and 4:00 p.m., would be released from the shelter into the community; and (4) operate a three-month residential Life Change Program for ten men.
The Board conducted hearings on the applications between April and November 2005. Upon completion of the proceedings, the Board adopted a resolution denying all of the requested variances and waivers. The Board concluded that the proposed use for the property was not inherently beneficial. Plaintiff filed an action in lieu of prerogative writs in the Law Division. After conducting its hearing, the court reversed the Board's decision and remanded the matter for further proceedings. The court found that there was a preponderance of evidence in the record demonstrating that the proposed use was inherently beneficial and that the Board's determination otherwise was arbitrary and capricious. The court remanded the matter to the Board for an analysis as to whether the proposed use was "an inherently beneficial use" in accordance with the Supreme Court's decision in Sica v. Board of Adjustment of the Township. of Wall, 127 N.J. 152, 159 (1992).
On remand, the Board granted the variances subject to fifteen conditions, which included the provisions for a guard or staff member for outside patrol one hour before and after the dinner program and a guest waiting area for clients located inside the facility. The Board memorialized its decision in a March 28, 2006 resolution. Thereafter, a group called "Stand Up for Asbury Park" (Stand Up) filed a complaint in lieu of prerogative writs seeking reversal of the Board's resolution granting the variances and waivers. Stand Up argued that the Board failed to make the requisite Sica findings. With leave granted by the court, the mayor and council appeared as amicus curiae. On December 4, 2006, the court entered an order remanding the matter to the Board for further proceedings once again. The court permitted a limited expansion of the record as follows:
[T]he Board may consider the following limited additional testimony or evidence[:]
(a) David Scott's testimony before the Board on March 14, 2006; (b) cross-examination of Mr. Scott, by plaintiff or members of the public, as concerns his March 14, 2006 testimony and his specific testimony on April 19, 2005 on the subject that the Market Street Mission is seen as a blessing in Morristown; (c) additional testimony or evidence or public comment relevant and material to the subject matter describe[d] in subparagraphs (a) and (b) supra.
The court retained jurisdiction and consolidated the two matters. Stand Up did not seek a stay of the Board's March 28, 2006 resolution approving the application, and although the December 4 order remanded the matter for further proceedings, the Mission commenced its meals program on February 11, 2007, and four months later, on June 1, opened its shelter.
In accordance with the court's December 4 order, the Board conducted further proceedings and, upon completion of the proceedings, unanimously reversed its prior decision. The City ordered the Mission to cease all of its operations. This was followed by the Mission's motion before the court seeking temporary restraints. The court denied the motion on October 25, 2007. The Board memorialized its decision in a November 27, 2007 resolution. Thereafter, the Mission filed an amended complaint on January 11, 2008, seeking reversal of the Board's resolution.
The court conducted a bench trial on July 16, 2008, and affirmed the Board's decision in a written opinion dated August 28, 2008. In affirming the Board's action, the trial judge first noted that another judge, in an earlier ruling, found that the Mission was an "inherently beneficial use" and noted that the parties had not appealed this determination. Consequently, the judge focused his analysis upon whether the Mission had satisfied its burden relative to the negative criteria. The court concluded that the Mission failed to satisfy its burden and therefore affirmed the Board's action. The court entered its final judgment order dismissing the Mission's complaint with prejudice. The present appeal followed.
On appeal, plaintiff raises the following points for our consideration:
POINT I THE BOARD'S DENIAL OF THE APPLICATION DEFIED NEW JERSEY'S STRONG PUBLIC POLICY.
POINT II THE STANDARD OF REVIEW OF THE BOARD'S DENIAL OF THE APPLICATION.
POINT III THE STANDARD FOR GRANTING THE USE VARIANCES SOUGHT.
a. THE MISSION HAS SATISFIED THE POSITIVE CRITERIA.
b. THE NEGATIVE CRITERIA.
POINT IV THE NEGATIVE CRITERIA HAVE BEEN SATISFIED.
1. THE MISSION WILL SERVE HOMELESS MEN WHO ORIGINATE OUTSIDE OF ASBURY PARK'S BOUNDARIES, AND SUCH MEN WILL BE EXPECTED TO LEAVE ...