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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 requirement that there be enhanced proofs for one of the applicable negative criteria.

On December 21, 2010, the trial judge held a bench trial on the record developed before the Board. He heard argument from counsel on behalf of TSI, New Vornado, and the Board. The judge also admitted twenty-five exhibits into evidence.

On January 4, 2011, the trial judge issued a twenty-two page opinion affirming the Board's decision. The judge determined that New Vornado's application was properly before the Board and that the notice was legally sufficient because "it specifically described the operator and the type of use at the proposed site." He held that the variance was properly granted as a (d)(3) variance, rejecting TSI's argument that a (d)(1) variance was required. The judge also determined that the Board properly considered and weighed both parties' evidence in granting New Vornado a (d)(3) variance. This appeal followed.


TSI raises the same three issues on appeal. Before addressing them individually, we outline our standard of review.


Appellate review of a zoning board's decisions is limited. Ocean Cnty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 521 (App. Div.), certif. denied, 175 N.J. 75 (2002). We apply the same standard of review as the trial court. N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004) (citing Charlie Brown of Chatham, Inc. v. Bd. of Adjustment of Chatham, 202 N.J. Super. 312, 231 (App. Div. 1985)). "Such public bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion." Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965). Consequently, the determinations of a zoning board are presumed valid and will be reversed only when the findings are "'so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion.'" Ocean Cnty. Cellular, supra, 352 N.J. Super. at 522 (quoting Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998)).

A board's findings must be supported by "substantial evidence in the record." N.Y. SMSA, L.P. v. Bd. of Adjustment of Bernards, 324 N.J. Super. 149, 165 (App. Div.), certif. denied, 162 N.J. 488 (1999). However, a board of adjustment has the discretion to accept or reject the testimony of witnesses and, where reasonably made, such a decision is conclusive on appeal. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 434 (App. Div. 2009) (citations omitted).

Because the interpretation of a statute presents a legal issue, conclusions of a municipal board on matters of statutory interpretation are not entitled to any particular deference. Atl. Container, Inc. v. Twp. of Eagleswood Plan. Bd., 321 N.J. Super. 261, 269 (App. Div. 1999) (citations omitted).


TSI's first argument is that the Board lacked jurisdiction to hear New Vornado's application because its public notice was defective. TSI contends that New Vornado's notice did not properly describe "the nature of the matters to be considered," as required by N.J.S.A. 40:55D-11.

Proper notice is a jurisdictional prerequisite to a land-use board's authority to conduct a hearing on an application. See N.J.S.A. 40:55D-12; Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment, 154 N.J. 62, 79 (1988); Perlmart of Lacey, Inc. v. Lacey Plan. Bd., 295 N.J. Super. 234, 236 (App. Div. 1996). If the content of the notice is defective or those entitled to receive notice are not served, the notice is invalid and the board is not authorized to act on the application. Stafford, supra, 154 N.J. at 79.

We have interpreted N.J.S.A. 40:55D-11 to require "an accurate description of what the property will be used for under the application." Perlmart, supra, 295 N.J. Super. at 238. To satisfy that requirement, the application must describe "the nature of the matters to be considered" in such a "common sense description of the nature of the application . . . that the ordinary layperson could understand its potential impact upon him or her." Id. at 239. See also Shakoor Supermarkets, Inc. v. Old Bridge Twp. Plan. Bd., 420 N.J. Super. 193, 201-03 (App. Div.), certif. denied, ___ N.J. ___ (2011).

In Perlmart, supra, 295 N.J. Super. at 237, the notice stated only that the site plan approvals sought by the applicant were for "the creation of commercial lots." It did not advise the public that the proposed commercial lots were to be used for a K-Mart shopping center. Id. at 239. We determined that the notice was deficient because it did not inform the public of the nature of the intended use. Ibid.; see also Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 352-53 (App. Div. 2008) (holding a developer's notice under N.J.S.A. 40:55D-11 deficient because it merely mentioned "retail/office" as the proposed use and made no reference to the large sit-down restaurant serving alcohol included in its plans).

The applicable section of New Vornado's notice stated:

The Application is for (a) Use Variance

(b) Minor Site Plan Modification and (c) Bulk Variances for required number of parking spaces and size of parking spaces to permit renovations to and use of an existing building on the Premises as an LA Fitness facility in the HC-2 zone, which use is within 500 feet of an existing residential use and/or residential zone.

TSI maintains that the phrase "LA Fitness facility" does not describe the nature of the matters to be considered because businesses other than health clubs use the word "fitness" in their name. It contends that the phrase "LA Fitness facility" could describe a variety of uses including a health club, a manufacturer of fitness equipment, a fitness-equipment retailer, a diet-assistance company, or a variety of other businesses.

We reject TSI's argument, which relies on strained alternative constructions of the notice. Taking the required "common sense" approach, we hold that the notice given by New Vornado was sufficient to put "the ordinary layperson" on notice of the nature of the proposed use. It identified a major operator of health and fitness centers, which has other locations in New Jersey, by name as the operator of the proposed use.


We turn next to TSI's argument that the Board applied the wrong subsection of the statute in considering New Vornado's application.

The premise of TSI's argument is that, although a for-profit recreational use is a conditional use within the HC-2 zone, it is a prohibited use for any property within 500 feet of any residence or residential zone. TSI argues that, because a for-profit fitness facility is actually a prohibited use under the circumstances proposed in the application, New Vornado should have been required to obtain a variance under N.J.S.A. 40:55D-70(d)(1), which governs variances for non-permitted uses. TSI maintains that, as a result, New Vornado should not have been permitted to benefit from the less rigorous requirements allowed by Coventry Square, Inc. v. Westwood Zoning Board of Adjustment, 138 N.J. 285 (1994), for non-conforming conditional use variances.

A "conditional use" is a use that is already permitted in a particular zone, but only under certain conditions. N.J.S.A. 40:55D-3. In Coventry Square, supra, 138 N.J. at 297-98, the Supreme Court determined that a conditional use that requires a variance need not be subject to the same standard of proof required for a variance needed when the proposed use is completely prohibited.

[O]ur courts generally have treated a conditional use that does not comply with all the conditions of the ordinance as if it were a prohibited use, imposing on the applicant the same burden of proving special reasons as it would impose on applicants for use variances. In our view, that standard is plainly inappropriate and does not adequately reflect the significant differences between prohibited uses, on the one hand, and conditional uses that do not comply with one or more of the conditions imposed by an ordinance, on the other hand. In the case of prohibited uses, the high standard of proof required to establish special reasons for a use variance is necessary to vindicate the municipality's determination that the use ordinarily should not be allowed in the zoning district. In the case of conditional uses, the underlying municipal decision is quite different. The municipality has determined that the use is allowable in the zoning district but has imposed conditions that must be satisfied. As evidenced by this record, a conditional-use applicant's inability to comply with some of the ordinance's conditions need not materially affect the appropriateness of the site for the conditional use. Accordingly, the standard of proof of special reasons to support a variance from one or more conditions imposed on a conditional use should be relevant to the nature of the deviation from the ordinance. The burden of proof required to sustain a use variance not only is too onerous for a conditional-use variance; in addition, its focus is misplaced. The use-variance proofs attempt to justify the board of adjustment's grant of permission for a use that the municipality has prohibited. Proofs to support a conditional-use variance need only justify the municipality's continued permission for a use notwithstanding a deviation from one or more conditions of the ordinance. [Ibid.]

Because the Coventry Square analysis focuses on the nature of the deviation, rather than the use itself, a board must evaluate the deviation's "potential effect on the surrounding properties and the zone plan." Omnipoint Commc'n, Inc. v. Bd. of Adjustment of Bedminster, 337 N.J. Super. 398, 414 (App. Div.), certif. denied, 169 N.J. 607 (2001).

East Brunswick's Zoning Ordinance does not absolutely prohibit all health and fitness facilities on property within 500 feet of a residence or residential zone in the HC-2. Such facilities are a permitted use if they are operated by a nonprofit entity. East Brunswick, N.J., Code § 228-176. A facility configured in the same manner as the proposed LA Fitness facility would have been a permitted use on New Vornado's property if it were to be operated by a non-profit entity.

It is only health and fitness facilities run by for-profit entities that are conditional uses and subject to the 500-foot exclusionary zone. Id. § 228-176.1(D). Consequently, the issue before the Board was whether it should grant a variance to permit the non-conforming conditional use despite the applicant's inability to satisfy the requirement concerning the 500-foot exclusionary zone applicable to for-profit entities. Under that circumstance, we hold that the Board and the trial judge correctly considered New Vornado's application as a (d)(3) variance subject to the lessened Coventry Square standard.


Finally, we turn to TSI's argument that the Board's approval of New Vornado's application was erroneous.

Deviations from the standards for conditional uses contained in a zoning ordinance trigger the need for a variance under N.J.S.A. 40:55D-70(d). Omnipoint, supra, 337 N.J. Super. at 413.

An applicant for a variance permitted by N.J.S.A. 40:55D-70(d), whether for a conditional or prohibited use, must satisfy the statute's "positive criteria" or "special reasons" for the grant of the variance, and its "negative criteria" that require the variance "can be granted without substantial detriment to the public good and that it will not substantially impair the intent and the purpose of the zone plan and the zoning ordinance." [Ibid. (quoting Smart, supra, 152 N.J. at 323).]

As we discussed at greater length above, the standards applicable to a variance for a non-conforming conditional use are less onerous than those for a prohibited-use variance. Coventry Square, supra, 138 N.J. at 297-99. In the context of a conditional use variance, the applicant "need only justify the municipality's continued permission for a use notwithstanding a deviation from one or more conditions of the ordinance." Id. at 298. "Thus, a conditional-use variance applicant must show that the site will accommodate the problems associated with the use even though the proposal does not comply with the conditions the ordinance established to address those problems." Id. at 299.

An applicant for a conditional use variance must also satisfy the negative criteria, which has two prongs. First, the variance cannot cause "substantial detriment to the public good" and, second, it cannot "substantially impair the intent and the purpose of the zone plan and the zoning ordinance." N.J.S.A. 40:55D-70(d). "The analysis of the negative criteria for a conditional-use variance also focuses on the specific deviation and its potential effect on the surrounding properties and the zone plan." Omnipoint, supra, 337 N.J. Super. at 414.

TSI argues that, despite the Court's decision in Coventry Square to apply a lessened standard for conditional use variances, an applicant must still provide the "enhanced quality of proof" for the second prong of the "negative criteria," as required by Medici, supra, 107 N.J. at 4.

The Court's decision in Coventry Square could be read as eliminating the requirement for enhanced quality of proof of the second prong when a board is considering a conditional use variance, although the opinion does not explicitly say so. After determining that a less rigorous standard was appropriate, the Court articulated the standard for the second prong without reference to Medici's enhanced quality of proof.

In respect of the second prong, that the variance will not "substantially impair the intent and purpose of the zone plan and zoning ordinance," N.J.S.A. 40:55D-70(d), the board of adjustment must be satisfied that the grant of the conditional-use variance for the specific project at the designated site is reconcilable with the municipality's legislative determination that the condition should be imposed on all conditional uses in that zoning district. [Coventry Square, supra, 138 N.J. at 299.]

In Cell South of New Jersey, Inc. v. Zoning Board of Adjustment of West Windsor Township, 172 N.J. 75, 83 (2002), the Court again restated the standard applicable to the second prong by quoting the language from Coventry Square, again without reference to an enhanced quality of proof. Nevertheless, the Court did not explicitly state that the enhanced standard was inapplicable. The existence of the enhanced quality of proof requirement is mentioned in the Cell South opinion, but not with specific application to the merits of the case being decided in Cell South. Id. at 90.

Cell South and our decision in Omnipoint have, however, been interpreted to require application of the requirement that there be an enhanced quality of proof. See William M. Cox & Stuart R. Koenig, New Jersey Zoning & Land Use Administration § 17-4.2 at 474-76 (2011). We have concluded that we need not resolve the issue for the purposes of this appeal, because we are satisfied that the evidence presented by New Vornado satisfied the second prong even if the enhanced quality of proof was required.

The analysis with respect to the second prong "focuses on the specific deviation and its potential effect on the surrounding properties and the zone plan." Omnipoint, supra, 337 N.J. Super. at 414. The specific deviation in this case is not the location of any health and fitness facility on New Vornado's property, but rather the fact that the proposed facility is to be operated for-profit. If the use proposed by New Vornado had been, for example, a YMCA, it would have been a permitted use and the variance would not have been necessary.

After hearing all of the testimony and argument, the Board reached the following conclusions with respect to the proposed use:

1. In presenting the use variance application, based on the plans submitted, the testimony of applicant's witnesses and with the implementation of the recommendations of the Department of Planning and Engineering and other agencies referred to above, applicant has met the statutory proofs required for the Board to grant the D(3) variance. The proposed use of the property is a recreational use in an appropriate location. The Board concludes that applicant's proposed use will not cause any substantial impairment of the zone plan of the Township because the unmet condition is the proximity to a residential use. The building itself is over 1200 feet, from the nearest residence, considerably more than the ordinance minimum of 500 feet, and only the lot lines of the entire shopping center are within 500 feet. In addition, the residential uses are buffered by commercial development on the northbound side of Route 18 and a six lane divided highway. Its impact will be minimal in light of the fact that this corridor contains numerous commercial uses and no residential uses front on Route 18. There are no residential uses on the southbound side of Route 18 within 500 feet of the lot line. Applicant's witnesses presented reasoned testimony supporting applicant's proposed use which is particularly suited to and peculiarly situated in an area where other commercial uses are located and where no residential dwellings are within the sight lines of the building.

2. The [B]oard further concludes that these uses will not impose any detrimental effects whatsoever upon the [T]ownship or surrounding uses for the reason found above. The presence of another health club in a shopping center on the northbound side of Route 18, across the road from the applicant, which other health club is plainly visible to nearby residential areas and which deposits traffic onto roads fronting on these residential areas, demonstrates that the impact of health clubs located in shopping centers has minimal impact on nearby residences particularly if shopping center traffic is diverted away from the residences. When all testimony is weighed, the [B]oard further concludes that there will be little impact by this use on any surrounding uses and thus no substantial detriment to the [T]ownship zone plan and zoning ordinance.

3. Accordingly, the use is an appropriate use of the premises. Since the Township has provided in its master plan and zoning ordinance for . . . recreational uses in the zone so long as the use does not negatively impact nearby residential areas, the character of the area includes a number of commercial uses consistent with the applicant's proposed use and since the applicant has agreed to every condition required by the [T]ownship, the [B]oard concludes that the applicant has met any required burden of proof under the statute in such case made and provided. The grant of the use variance here sought also helps to achieve the goals of the [T]ownship's master plan and meets the statutory purposes of zoning by permitting an appropriate use and development of lands as well as promoting a more desirable visual environment by redevelopment of [an] existing . . . building in an existing shopping center.

4. Finally, the [B]oard concludes, based on all submissions and testimony, that the proposed use will neither substantially impair the intent and purpose of the [T]ownship zoning plan and ordinance nor will it be substantially detrimental to the public good. There will be no damage to the character of any surrounding area which, as indicated above, contains other commercial uses and a divided six lane highway and a commercial strip buffering residential uses. Applicant's proposed improvements, which will place the recreational use appropriately in an existing building, in an existing shopping center, with a traffic pattern that diverts existing traffic away from the residential area, combine to reinforce the lack of any substantial detriment to the [T]ownship's zone plan and ordinance or to the public good.

Our review of the record convinces us that the Board's decision is supported by "substantial evidence in the record," N.Y. SMSA, supra, 324 N.J. Super. at 165, even applying the enhanced quality of proof requirement for the second prong of the negative criteria. The Board had the discretion to accept or reject the testimony of expert witnesses and reasonably exercised that discretion. Bd. of Educ. of Clifton, supra, 409 N.J. Super. at 434 (citation omitted). The Board's overall decision is not "arbitrary, capricious, or unreasonable" and does not "amount to an abuse of discretion." Ocean Cnty. Cellular, supra, 352 N.J. Super. at 521-22 (citing Smart, supra, 152 N.J. at 327).

TSI's argument that New Vornado failed to satisfy the second prong by an enhanced quality of proof borders, in our view, on the disingenuous because TSI obtained a variance, apparently applying the enhanced standard, to build a similar facility significantly closer to the residential area. In contrast, New Vornado's building itself is over 1200 feet away from any residential lots and the residential areas at issue are buffered by other commercial development and a six-lane highway. If the location of NYSC adjacent to numerous residences would "not substantially impair the intent and purpose of the zone plan and zoning ordinance," N.J.S.A. 40:55D-70(d), we cannot conceive that a similar facility, located further away and buffered as described, could be said to cause such impairment.

It was not unreasonable for the Board to conclude that the existence of TSI's own health and fitness facility demonstrated that the negative impacts and traffic flow increases associated with the use of such a facility in the area were minimal.

We conclude that the Board's action was consistent with applicable law, fully supported by the record, and not arbitrary, capricious, or unreasonable. Consequently, we affirm the order entered by the Law Division dismissing TSI's complaint.



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