On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1175-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued April 5, 2011
Before Judges Fuentes, Nugent and Newman.
Plaintiffs are residential homeowners who live across the street from the Madonna Church, cemetery, and mausoleum. The church sought to expand its existing mausoleum because it was almost full to capacity and there was a growing scarcity of depositories for the dead in the area. As a conditional use in a residential zone, the mausoleum expansion was subject only to height and setback restrictions. A variance was eventually secured from defendant Board of Adjustment of the Borough of Fort Lee (the Board). The action of the Board, granting the variance and approving the preliminary and final site plan application, was affirmed by the Law Division judge. Plaintiffs appeal. We affirm, but remand to the Board for clarification on a setback requirement.
Judge Toskos in his written opinion of January 15, 2010, summarized the testimony of the various witnesses who appeared before the Board and then described the Board's resolution in the following terms:
In its fourteen page resolution, the Board made several findings of facts, based upon the testimony and exhibits submitted during the hearings. The Board found that the property commonly known as 610 Church Lane contained an existing mausoleum, the expansion of which was the subject of the application. The proposed mausoleum would be constructed on an area currently used for parking and located between the existing church and the Church Lane right-of-way. The addition would provide for 3,072 entombments and 744 crematorium niches. The existing mausoleum is operating at approximately 94% capacity and will soon be completely full. With the exception of a public school, the property is located in essentially a residential neighborhood. The Board found that the proposed mausoleum is a conditional use pursuant to §410-36B of the Borough's Zoning Ordinance. The Board also determined that the proposal met all the conditions but that the application was also subject to the height restrictions for the R-2 zone. The Board found there would be a net increase in parking that would result from approval of the application. Thereafter, the Board determined that not only would approval of the application result in a new increase in parking, but the proposed sidewalk improvements would also benefit pedestrian traffic.
The Board found credible the testimony [of] the witnesses presented on behalf of the applicant. After hearing the testimony of the various witnesses, the Board determined that the site was chosen because of the necessity to connect utilities on the ground floor of the existing mausoleum with the new addition. The location would also allow for use of the church in funeral services. The Board also noted that the proposed addition would be approximately forty-two feet high. The height restriction under the zoning code is twenty-eight feet to mid-roof. Since many of the residential structures had peaked roofs, the actual height of many residential structures in the area was approximately thirty-two feet. The Board found credible the testimony of the applicant's planner, and concluded that the site was particularly suited for mausoleum use. It further found that the granting of the application would result in improvement in parking and in pedestrian access. The Board also found significant the extensive evergreen buffer proposed. The Board concluded that the buffer would greatly reduce any adverse impact to the aesthetics of the neighborhood. The Board also found that the cemetery had been located in that area since the middle of the nineteenth century. Its existence, along with the church, predated any residential development in the area. The Board concluded that based on the testimony of Reverend Carey, there was a need for a mausoleum to provide burials in the area. The Board found that this function is an inherently beneficial use. The Board determined that any adverse impact to the surrounding area had already been accounted for by the previously constructed cemetery, church and mausoleum.
In discussing the variance from the height requirement of the ordinance, Judge Toskos had this to say.
In this matter, the record reveals credible testimony supporting the Board's decision as to the suitability of the mausoleum on this specific site. The R-2 zone permits cemeteries as a conditional use. It is undisputed that under Fort Lee Ordinance §410-36B, a mausoleum is a permitted conditional use. In this instance, the proposed mausoleum complied with all the conditions of Ordinance §410-36B. The zoning officer determined that the height requirements for the R-2 zone would apply to the proposed mausoleum. The height being the condition at issue, the applicant presented evidence that the existing mausoleum is nearly four feet taller than the proposed addition. Furthermore, the R-2 zoning height restriction was imposed for residential structures which are very different from a structure like a mausoleum, which is not used for residential purposes at all. The proposed addition would include a sidewalk to improve pedestrian access to the mausoleum. The addition would also result in a net gain of nineteen parking spots. The applicant provided testimony that even if the proposed addition is approved, traffic would generally stay the same.
The court then went on to consider the positive criteria that must be established under N.J.S.A. 40:55D-70(d) in order for a variance to be granted:
In proving the "positive criteria," the applicant proved that there is a need for entombments in the area. The proposed mausoleum addition promotes the general welfare by addressing this need. In addition, the granting of the application would result in an increase in parking spaces, improved pedestrian access to the church and extensive landscaping. The record reveals that there exists a functional practicality to locating the proposed addition next to the existing church and mausoleum. As a result, the [c]court finds it reasonable that the Board determined that the site continued to be appropriate notwithstanding the deviation from the R-2 height requirement. As such, the Board's decision that the applicant met the positive criteria was not arbitrary, capricious or unreasonable.
Judge Toskos then addressed the negative criteria that also must be satisfied if a variance is to be ...