On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3997-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Fasciale.
In this prerogative writs case, plaintiff Seton Hall University (Seton Hall or the University) appeals from a May 16, 2011 order upholding a resolution by the Zoning Board of Adjustment of the Township of South Orange Village (the Board) denying Seton Hall's application for a "use" variance and dismissing its complaint. We affirm.
Seton Hall seeks to convert a three-story six-bedroom residence, formerly used as an in-home doctor's office,*fn1 into faculty offices and a welcome center for its military science department. The property is located at 1 South Centre Street, adjacent to the University's campus but within a residential district known as Tuxedo Park, a "Residence A: Single Family Zone" (RA-60 zone) in South Orange. From the backyard, the property abuts a large University parking lot located within the "University Zone" (U zone).*fn2
In 2008, Seton Hall applied for a "use" variance along with certain "bulk" variances and preliminary and final site plan approval. The Board conducted a three-day hearing,*fn3 at which Seton Hall presented testimony and evidence in support of its application.
The University stipulated that the use variance would be applicable for only so long as Seton Hall used the property for faculty offices. The University presented testimony from five witnesses: Dennis Garbini, its vice president of finance and technology; Lieutenant Colonel John Haubert, the chairperson of the military science department; Kenneth Bienkowski, its engineer; Alfred Consoli, its architect; and James Dowling, its planner, the only planning expert to testify at the hearing.
Garbini testified that Mooney Hall, the building housing the military science department, was insufficient because it did not have an elevator or handicap accessibility. He stated that although the subject property was not "well suited for a residence at the University," the property could serve as a new military science faculty building. Garbini also testified that the University intended to "maintain the front of the home along Cent[re] Street as it appears as it is today, as a residence," make changes to the fencing, including placing a gate across the driveway, and create an entrance from the parking lot through the backyard.
Haubert testified that the military science program needed to be on-campus because an off-campus location would cause lower matriculation into the program. He stated that the program needed "visibility." Haubert also testified that he "did no reconnaissance of alternate sites."
Dowling testified that the University serves an inherently beneficial use and discussed the positive and negative criteria required for a variance pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. He opined that the property is "particularly suited" for the military science department because it is adjacent to the campus boundary and accessible from the parking lot, thereby eliminating a need for additional parking. He also stated that the property would remain "exceptionally residential in character in terms of its visibility."
As to the negative criteria, Dowling opined that there would be no substantial detriment to the public good. He testified that there would be no intrusive outdoor activities or large gatherings in the backyard; the hours would be limited to office hours; no firearms would be stored onsite; access would occur only through the backyard; there would be no increased street parking; and the house would maintain low profile lighting. Dowling further opined that there would be no substantial impairment to the zoning plan and ordinance. He stated that "the use would be less intense in regards to its activity on South Centre Street than the previous [doctor's office] use," and that Seton Hall would "maintain a residential appearance . . . consistent with the character of other homes in the area." Finally, Dowling analyzed the four prongs of the Sica balancing test*fn4 and concluded that the benefits of granting the variance would outweigh the detriments.
On April 7, 2009, the Board adopted a resolution denying the variance. The Board found that Seton Hall's intended use was inherently beneficial, but that, "after applying the Sica balancing test, . . . a use variance [was] not warranted."
Regarding benefits of the proposed use, the Board found that the variance would allow the University to locate its military science department "on a parcel directly adjacent to the University campus," and that Haubert had "stated his preference for the program to maintain an on-campus presence in order to help with recruiting." However, the Board stated:
Although other University officers may have looked at other locations, [Haubert] stated that he had not looked, nor had he been asked to look, at other possible locations, either on or off campus, including the building located at 525 South Orange Avenue which is owned by the [University], is presently being used by the [University] for offices, and is directly across the street from the main entrance to the University. Although Colonel Haubert testified that an on campus location helps with recruiting[,] there was no convincing evidence concerning the degree to which recruitment would be affected if the Department were located at 525 South Orange Avenue as opposed to 1 South Centre Street, nor was there any convincing testimony why the Department could not be located in another location on campus either existing or to be built.
Next, the Board considered the detriments of the proposed use and concluded that they would be substantial:
Allowing the University to expand, even for the limited purpose of faculty offices and a welcoming/recruitment center, into the surrounding residential neighborhood of Tuxedo Park, a neighborhood which by reason of its singular homogenous residential use offers an intact buffer against the urban problems of Newark to the east and the institutional [University] to the west, would be destructive of the zoning plan and ordinance. The Board recognizes the ...