October 17, 2011
JESSE ROSENBLUM, PLAINTIFF-APPELLANT,
ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF CLOSTER AND ROBERT ARMANIACO,
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3265-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2011
Before Judges Carchman, Fisher and Baxter.
Plaintiff Jesse Rosenblum appeals from a Law Division order affirming the grant of a use variance by the Borough of Closter Zoning Board of Adjustment (Board). The variance authorized the applicant, Robert Armaniaco, to utilize a portion of his property as a contractor's yard even though it was in a residential zone. We conclude the Law Division and the Board properly analyzed the governing statute, N.J.S.A. 40:55D-70(d), and that the Board's decision was neither arbitrary nor capricious. We affirm.
In 1999, Armaniaco and his wife Michelle purchased a 20,000 square foot property located at 35 John Street in Closter, comprising lots 6 and 7 of block 1203 (the property). The property is located in a residential zone, district 2. John Street is a one-way street "sandwiched" between an industrial use district, district 5, and a commercial district, district 4. The property consists of a single-family dwelling on lot 7, where Armaniaco and his family reside, and a garage on lot 6, which is used for the storage of contractors' equipment and materials for his business, Armaniaco & Son, L.L.C., which performs excavation, landscaping, demolition and sewer work. The two lots were merged at some point prior to the Armaniacos' purchase of the property. At the time the Armaniacos agreed to purchase the property, lot 7 was being used for commercial purposes in connection with the then-owner's lawn mower and machine repair business.
In 2007, the Code Enforcement Officer of the Borough of Closter issued a summons charging Armaniaco with using the property for commercial purposes, namely, a "contractor's yard," in violation of the Borough's zoning ordinance, which limited the property to residential use. Upon Armaniaco's promise to seek a use variance, the summons was withdrawn.
On May 20, 2008, Armaniaco submitted an application for the use variance that is the subject of this appeal. He sought permission to operate a contractor's outdoor storage yard on a portion of his residential property, namely lot 6. The Board heard testimony on five occasions between September 2009 and February 2010. Armaniaco presented the testimony of Steve Lydon, a professional planner. Lydon opined that lot 6, on which Armaniaco sought to site his contractor's storage yard, is "problematic [for] . . . a single family home." He explained that lot 6 is a "through lot" running between John Street and Westminster Avenue, and is deemed to have "two front yards" and no rear yard. Under such circumstances, the zoning ordinance operates to prevent the homeowner from using the property in the way that a family might seek to use its rear yard, for a "deck, swimming pool or gazebo" because "those structures would be prohibited" on either of the two front yards.
Lydon also observed that at the point where lot 6 abuts lot 7, the property is burdened with two easements: a fifteen-foot wide sewer easement and a ten-foot wide storm water easement, both of which run the full length of the property from John Street through to Westminster Avenue, further limiting the use of lot 7 for residential purposes.
He also described Closter's 1981 master plan and the 1996, 2002 and 2008 reexaminations. The 2008 master plan noted the tension between the residential and industrial neighborhoods in Closter, and recommended that a 315-foot area on John Street be changed from a residential to an industrial classification because "[t]hese properties presently have the front and rear yard areas abutting industrial land uses. It would be inappropriate to continue a residential pattern in this environment." Despite the recommendation that the area in question be rezoned, it retained its residential classification. The Armaniacos' property lies within the 315 feet discussed in the 2008 master plan.
Lydon opined that granting the variance would be "appropriate" because the proposed use would not require a "modification of [the existing] uses or intensity of uses" and would "[p]rovide a suitable buffer" separating the nearby single family dwellings from the adjacent commercial zone in district 4 and the industrial zone in district 5. Granting the variance, according to Lydon, would support "appropriate population densities and concentrations [in Closter], that will contribute to the well-being of persons, neighbors, communities and regions and preservation of the environment." He opined that the requested use variance would be consistent with the master plan and its reexaminations because Armaniaco would be maintaining a single-family home, thereby buffering the property from the nearby industrial zone while allowing a limited commercial use to exist.
Armaniaco testified about his use of the property, beginning with his purchase of the land from Tony Pellegrin in 1999. According to Armaniaco, Pellegrin had difficulty selling the property because of its shape and its proximity to industrial and commercial zones. Armaniaco explained that although his business includes excavation, sewer work, landscaping and demolition, he does not manufacture, demolish or assemble any products on his property, and limits the use of his property to the storage of trucks, containers and equipment. He assured the Board that there are no odors emanating from the contractor's yard he was maintaining on lot 6, because he does not dispose of any organic materials or bring grass clippings or manure onto the property.
Armaniaco explained that although he has two employees, he is the only person who drives the larger trucks because neither of his employees has a commercial driver's license. As he is a full-time employee of the Borough of Tenafly, he operates Armaniaco & Son, L.L.C., as only a "part-time" operation. In the morning, his wife typically drives the two employees in her pickup truck to a jobsite and returns later to pick them up.
To minimize any possible disturbance to the neighbors, and to improve the aesthetic condition of the property, Armaniaco agreed to accept certain stipulations as a condition of the use variance, if one were to be granted. Armaniaco agreed to: create a driveway area wide enough to accommodate all equipment; improve the physical buffer by adding trees and a fence; direct his truck traffic to and from his property by using Westminster Avenue; direct his truck traffic on the section of John Street furthest away from the residential properties if John Street were to become a two-way street; and park the landscaping trailer in the rear yard instead of on the road.
There was considerable opposition from the public to Armaniaco's application, with residents voicing concerns about the noise, odors and traffic from his and the many commercial properties in the area. On February 17, 2010, the Board voted 6-1 to approve Armaniaco's application for a use variance, adopting a confirming resolution on March 17, 2010. In its detailed resolution, the Board found that Armaniaco had presented proofs sufficient to satisfy the positive and negative criteria of N.J.S.A. 40:55D-70(d). As to the positive criteria, the Board noted that the "unique depth and shape" of the property allows the residential and business uses to coexist. The location of the lots -- bordering on different zones within Closter -- "makes the lots particularly well suited for the proposed use." The easements and the "severe frontage deficiency" of lot 6 restrict the lot's residential use. Lot 7 is also disadvantaged due to the easements, its unusual shape and its proximity to other properties with commercial or industrial uses. According to the Board, the merging of the two lots "created a unique opportunity for the residential use on Lot 7 to shield the nonconforming use on Lot 6[.]"
The Board observed that granting the use variance would advance several of New Jersey's Smart Growth Principles and would "promote the establishment of appropriate population densities and concentrations" throughout Closter. Further, the conditions placed on Armaniaco's property would create "a desirable visual environment because of the enhanced landscaping which shields the commercial portion of the use from the frontage on John Street and the residential uses in the area." The proposed residential and commercial uses of lots 6 and 7 "promote the character of the neighborhood and . . . conserve . . . neighborhood values" because the neighborhood "has historically been used for a combination of commercial, light industrial, and residential" uses. Last, the use variance would benefit Closter "because it offers a transition zone."
As to the negative criteria, the Board found: the variance could be granted with "no substantial detriment to the public good"; the proposal advances the goals of the master plan by "reconciling a non-conforming use . . . and the [Board's] need to create industrial and residential compatibility"; the "vegetation buffer and fencing . . . will protect the residential uses in the neighborhood from the business use of the properties"; and the conditions placed on the use of the property by the Board "will greatly limit any negative impact to the neighboring properties."
The Board placed conditions on the grant of the use variance: lots 6 and 7 must remain a mixed use, consisting of a residential dwelling and an active commercial area; Armaniaco must continue to reside on lot 7; the commercial use of the property must not exceed the use described by Armaniaco in his site plan; the materials stored on the property must not be odorous; and Armaniaco must maintain fencing and landscaping to serve as a visual buffer between the commercial and residential uses.
On April 8, 2010, plaintiff filed a complaint in lieu of prerogative writs, in which he alleged that the grant of the use variance by the Board improperly permitted Armaniaco to operate a commercial business in a residential zone, thereby constituting an arbitrary and capricious decision.
After a one-day bench trial, Judge Joseph S. Conte issued a written decision and confirming order upholding the grant of the use variance and concluding that the Board's decision was not arbitrary, capricious or unreasonable. "[B]ased upon the irregular shape of the property, the easements, and the fact that it has been used and it's a border property," the trial judge found that the record reasonably supported the Board's conclusions as to the positive and negative criteria. He affirmed the Board's decision and dismissed plaintiff's complaint with prejudice.
On appeal, plaintiff raises the following claims for our consideration:
I. APPLICANT'S SOLE NEED FOR TWO MIXED USES ON THE PROPERTY IS TO SATISFY A PECUNIARY INTEREST
II. SELECTED COMMENTS FROM THE TESTIMONY OF THE APPLICANT'S PLANNER, MR. LYDON
III. RELATED MASTER PLAN RECOMMENDATIONS
IV. RELIANCE OF RESOLUTION ON BURBRIDGE AND BELL ATLANTIC IS MISPLACED
V. THE USE VARIANCE DOES NOT ADVANCE NEW JERSEY'S SMART GROWTH PRINCIPLES AS CLAIMED IN THE RESOLUTION
VI. THE APPLICANT HAS NOT DEMONSTRATED SPECIAL REASONS FOR A 'D' VARIANCE
VII. THE APPLICANT FAILED TO SATISFY THE NEGATIVE CRITERIA
VIII. THE RESOLUTION FAILS TO MAKE A CASE FOR THE MIXED USE VARIANCE
IX. THE VARIANCE FOR A MIXED USE IS IN CONFLICT WITH THE ZONING ORDINANCE AND THE MASTER PLAN
X. ERRORS IN THE DECISION OF THE LOWER COURT
XI. THE BOARD ARBITRARILY REZONED BY VARIANCE
This court and the trial court apply the same standards when reviewing a local Board's action on a zoning application. N.Y. SMSA, L.P. v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). The grant or denial of a use variance is committed to the sound discretion of the Board, because its members have superior knowledge of local conditions and are "best equipped to assess the merits of variance applications." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adj., 343 N.J. Super. 177, 198 (App. Div. 2001) (citations omitted). Nonetheless, "[c]courts give greater deference to variance denials than to grants of variances, since variances tend to impair sound zoning." Id. at 199 (citations omitted).
In our review of the Board's grant of the use variance, not only do we apply the same deferential standard employed by the trial court, N.Y. SMSA, supra, 370 N.J. Super. at 331, we are also obliged to confine our review to a determination of whether the Board's decision was arbitrary, unreasonable or capricious. Med. Ctr. at Princeton, supra, 343 N.J. Super. at 198. We must not substitute our judgment for that of a local Board. Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor, 172 N.J. 75, 81 (2002).
As relevant here, the issuance of a use variance is governed by N.J.S.A. 40:55D-70(d) which, in pertinent part, authorizes a Board:
In particular cases for special reasons, [to] grant a variance to allow departure from regulations . . . to permit: (1) a use in a district restricted against such use . . . .
Armaniaco's request for a use variance falls under N.J.S.A. 40:55D-70(d)(1) because the proposed contractors' yard constitutes a commercial use that violates the zoning ordinance's requirement that properties in district 2 be residential.
Unless the proposed application constitutes an inherently beneficial use of the property, the applicant must satisfy both the positive and negative criteria of the statute. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 323 (1998); Sica v. Bd. of Adj. of Wall, 127 N.J. 152, 156 (1992). Here, because the proposed use is not inherently beneficial, Armaniaco was required to prove, and the Board was required to find, that the proposed use "promotes the general welfare because the proposed site is particularly suitable for the proposed use." Medici v. BPR Co., 107 N.J. 1, 4 (1987) (footnote omitted).
Satisfaction of the negative criteria element "require[s] proof that the variance 'can be granted without substantial detriment to the public good' and that it 'will not substantially impair the intent and purpose of the zone plan and zoning ordinance.'" Sica, supra, 127 N.J. at 156 (quoting N.J.S.A. 40:55D-70(d)). The first inquiry under the negative criteria focuses on the potential effect of the variance on the surrounding properties. "The board of adjustment must evaluate the impact of the proposed use variance upon the adjacent properties and determine whether or not it will cause such damage to the character of the neighborhood as to constitute substantial detriment to the public good." Medici, supra, 107 N.J. at 22 n.12 (internal quotation marks and citation omitted). To satisfy the second prong of the negative criteria, the applicant must also "demonstrate through 'an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.'" Smart SMR, supra, 152 N.J. at 323 (quoting Medici, supra, 107 N.J. at 21).
With the exception of Point V, all of plaintiff's eleven points on appeal, although phrased differently, raise the identical claim: the Board's grant of a variance to Armaniaco constituted arbitrary and capricious action, and the Law Division erred when it refused to set the Board's decision aside. Consequently, we will address Points I through IV and VI through XI together. As to Point V, defendant has failed to present any legal argument. For that reason, we decline to address Point V. 700 Highway 33 L.L.C. v. Pollio, 421 N.J. Super. 231, 238 (App. Div. 2011).
Turning to plaintiff's remaining claims, we are satisfied the Board correctly concluded that Armaniaco's proofs fulfilled both the positive and negative criteria established by N.J.S.A. 40:55D-70(d). As we have already noted, because Armaniaco's proposed commercial use of lot 6 does not inherently serve the public good, he was required to demonstrate that "the use promotes the general welfare because the proposed site is particularly suitable for the proposed use." Medici, supra, 107 N.J. at 4 (footnote omitted). His proofs satisfied that standard.
In particular, Armaniaco demonstrated through the uncontroverted testimony of his expert planner, Lydon, that lot 6, on which Armaniaco proposed to situate the contractor's yard, cannot be developed for residential purposes for several reasons. First, its irregular configuration would make the siting of a home impractical because the lot is only twenty-feet wide at the point where it intersects John Street. Second, because the lot abuts both John Street and Westminster Avenue, it is deemed to have two front yards, thereby requiring the owner to satisfy the considerable setback requirements for a front yard on not one, but two, sides of the property. Having two front yards, and no back yard, also makes it impossible to situate in either of those two "front yards" any of the amenities that a residential homeowner would normally situate in a back yard: a patio, patio furniture, a deck, a swimming pool, a storage shed or a detached garage. Third, the two easements that bisect the property, make a residential use of the property extremely difficult as a home cannot be situated over either the drainage easement or the sewer easement. Because of the significance and severity of these restrictions and limitations, the use of lot 6 for residential purposes is virtually impossible.
Fourth, as Lydon also observed, the property is particularly suited for the proposed mixed use because of the uses found on surrounding properties. The Armaniaco property borders residentially-zoned properties to the west, and industrially-used properties immediately to the north and east, as well as commercially-zoned properties to the south. Some of these non-residential uses include a lumber yard, bus depot, automotive use, a contractor's yard and various industrial complexes. Because the Armaniaco property is one of only a few properties that border each of these different zones, the proposed mixed use serves to buffer the non-residential uses from the residential area to the west. Finally, the Board placed conditions on the grant of the variance to assure that it would not adversely impact the surrounding area.
For all of these reasons, the approval of a mixed use of the two lots, consisting of a residential portion on lot 7 and a commercial use on lot 6, was a proper exercise of the Board's powers. The Board correctly concluded that the "proposed site is particularly suitable for the proposed use," ibid. (footnote omitted), and its approval of the use variance did not constitute arbitrary and capricious action. We have been presented with no meritorious basis upon which to disturb the result the Board reached. Plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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