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Tsi East Brunswick, LLC v. Zoning Board of Adjustment of Township of East Brunswick

March 1, 2012


On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4602-10.

Per curiam.


Argued November 16, 2011

Before Judges Lihotz and Waugh.

Plaintiff TSI East Brunswick, LLC (TSI), appeals from the Law Division's order dismissing its action in lieu of prerogative writs challenging the Township of East Brunswick's Zoning Board of Adjustment (Board) decision to grant a conditional use variance and other relief to defendant New Vornado/Saddle Brook, LLC (New Vornado). We affirm.


We discern the following facts and procedural history from the record on appeal.

In 2010, New Vornado was the owner of property at 333 State Route 18 South in East Brunswick. New Vornado's property was part of a shopping center containing a variety of large and small retail stores and restaurants. A Lowe's Home Improvement and Garden Center and a vacant building, formerly occupied by a retail store, were located on New Vornado's property. New Vornado sought permission to place an LA Fitness Club in the vacant building.

The shopping center is primarily surrounded by commercial, warehouse, industrial, and office complexes. There are, however, approximately eight residential units within 500 feet of the lot line of New Vornado's property. The proposed location of the LA Fitness facility itself is approximately 1200 feet from the closest residential use.

New Vornado's property is in East Brunswick's HC-2 zone. East Brunswick's Zoning Ordinance treats for-profit recreational facilities as conditional uses in that zone, but prohibits them from lots within 500 feet of any residence or residential zone. East Brunswick, N.J., Code § 228-176.1 provides, in relevant part, as follows:

D. Recreational and amusement facilities operated for profit, including bowling alleys, skating rinks and indoor theaters, mechanical or electrical amusement devices or mechanical or electrical facilities as described in Chapter 135 of the Code of the Township of East Brunswick, where there are four or more such mechanical or electrical devices, subject to the following standards: [Amended 7-10-95 by Ord. No. 95-23]

1. No such place of amusement recreation or assembly shall be located within five hundred (500) feet of a residence or a residential zone, regardless of whether or not such zone is actually developed for residences, which distance shall be measured along a straight line from the nearest boundary line of the lot on which the proposed use is to be located and the nearest point of the residence or residential zone.

2. No such place of amusements, recreation or assembly shall be permitted as an accessory use to a permitted use unless the Planning Board shall first have issued a conditional use permit as required by this Chapter. [(Emphasis omitted.)]

In contrast, a similar facility operated by a "private, nonprofit" entity would be a permitted use in the zone. East Brunswick, N.J., Code § 228-176(H).

On January 27, 2010, New Vornado submitted an application to the Board seeking a variance pursuant to N.J.S.A. 40:55D-70(d)(3), which we refer to as a (d)(3) variance or conditional use variance. New Vornado published notice of its application and the hearing in the Home News Tribune on February 2, 2010. The notice stated that New Vornado's application was seeking a "use variance" to allow the development and use of an existing building in an HC-2 zone for an "LA Fitness facility."

TSI is the owner and operator of a New York Sports Club (NYSC), located in a shopping center almost directly across Route 18 from the proposed LA Fitness facility. TSI had been granted a comparable variance for the NYSC several years earlier. The NYSC facility is within 500 feet of a residential zone.

Prior to the Board's initial hearing on the application, TSI objected to the adequacy of New Vornado's notice. At the hearing, TSI argued that the notice was deficient because it identified the proposed use as an "LA Fitness facility," but did not identify it as a health and fitness facility. According to TSI, the name "LA Fitness facility" could indicate a variety of potential uses. TSI argued that merely stating the name of a business and calling it a facility did not sufficiently describe the proposed use or the "nature of the matters to be considered." The Board rejected TSI's contentions and determined New Vornado's notice was adequate.

At the first hearing, Peter Steck, New Vornado's planning expert, testified that the proposed LA Fitness facility met the criteria for a (d)(3) variance. He opined that the proposed facility was suitable for New Vornado's property because it was separated from the residential properties by other commercial buildings and Route 18, which is a divided, six-lane highway. He noted that the operation of NYSC's facility, on the other side of Route 18, did not appear to have had any adverse effect on the adjacent residential properties. Steck further testified that the LA Fitness facility would not be a high-activity use and would not cater to younger people, in contrast to other conditional recreational uses, such as movie theatres, skating rinks, or bowling alleys. Finally, Steck opined that New Vornado could have avoided the need for a variance altogether if it had subdivided the property so that the LA Fitness lot line was more than 500 feet from the residential area on the other side of Route 18.

At the hearing held on April 15, 2010, TSI's planning expert, Sean Moronski, disputed Steck's testimony. Moronski testified that the LA Fitness facility required a variance pursuant to N.J.S.A. 40:55D-70(d)(1), which we refer to as a (d)(1) variance, rather than a (d)(3) variance. Moronski opined that New Vornado failed to satisfy its burden of proof for a (d)(1) variance because it did not meet the standards required by Medici v. BPR Co., 107 N.J. 1 (1987).

The Board determined that only a (d)(3) variance was required. It found that the proposed LA Fitness facility would be a beneficial use and would not have a negative impact on the community. Consequently, it unanimously approved New Vornado's application, and granted other requested relief.

On June 21, 2010, TSI filed its complaint in the Law Division, alleging, among other issues, (1) that New Vornado's public notice was defective; (2) that New Vornado was required to apply for a (d)(1) variance rather than a (d)(3) variance; and (3) that New Vornado had not satisfied the ...

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