On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1623-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Messano and Waugh.
Defendant Marlboro Sports Center, LLC (MSC), appeals from a May 26, 2009 order of the Law Division that reversed a February 11, 2004 resolution adopted by the Marlboro Township Zoning Board of Adjustment (the Board). The Board's 2004 resolution had granted MSC's application for a use variance, but the Law Division determined that its decision was arbitrary, capricious, and unreasonable. For the reasons that follow, we affirm the Law Division's order.
"Because of the legislative preference for municipal land use planning by ordinance rather than variance, use variances may be granted only in exceptional circumstances." Kinderkamack Rd. Assocs., LLC v. Mayor and Council of Oradell, ___ N.J. Super. ___ (App. Div. 2011) (slip op. at 2). Therefore, in order to obtain a variance, an applicant must satisfy both the "positive" and "negative" criteria of the Municipal Land Use Law (MLUL). See, e.g., New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 160 N.J. 1, 6 (1999); Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adj., 361 N.J. Super. 22, 37 (App. Div. 2003).
Under the positive criteria, an applicant must show "special reasons" to justify the proposed use variance.
N.J.S.A. 40:55D-70(d)(1). As the Court has stated, "'special reasons' takes its definition and meaning from the general purposes of the zoning laws" enumerated at N.J.S.A. 40:55D-2. Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 386 (1990). There are three scenarios in which such reasons may be found:
"(1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility; (2) where the property owner would suffer 'undue hardship' if compelled to use the property in conformity with the permitted uses in the zone; and (3) where the use would serve the general welfare because the proposed site is particularly suitable for the proposed use." [Kinderkamack, supra, slip op. at 3-4 (quoting Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adj., 388 N.J. Super. 67, 76 (App. Div. 2006)).]
In contrast, the negative criteria require an applicant to prove "that [the] variance can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70(d). Additionally, proponents of non-inherently-beneficial uses must satisfy "an enhanced quality of proof" by securing "clear and specific findings by the board of adjustment that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici v. BPR Co., 107 N.J. 1, 21 (1987).
Having reviewed the facts of this case in a previous appeal, we provide only a brief summary here. See TSI Marlboro, Inc. v. Twp. of Marlboro Zoning Bd. of Adj., No. A-1155-06 (App. Div. Sept. 5, 2008). MSC is the owner of two lots (the Property) totaling 7.85 acres in the Township of Marlboro, New Jersey (Marlboro or the Township). Although the Property lies within a 200-acre light industrial zone, the Township's zoning ordinance conditionally permits recreational uses by not-for-profit entities. MSC is a for-profit enterprise.
On October 21, 2002, MSC applied to the Board for a use variance to construct a 104,150-square-foot "recreational facility and health club" on the Property. Eight public hearings were held on the application between February 13, 2003, and December 3, 2003, during which MSC presented numerous expert witnesses. In addition, the Board accepted testimony and evidence from its own experts and those of plaintiff TSI Marlboro, Inc. (TSI), a potential competitor who opposed MSC's application.
James W. Higgins, MSC's expert planner, testified as follows regarding the positive criteria:
I think that the variance can be granted due to the fact that the site has a particular suitability for this particular use. I say this for a number of reasons. First of all, the use itself is . . . a beneficial use*fn1 ; and the site would provide safe and adequate recreation . . . for the specific ...