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Joseph Klein and Carol Klein v. Planning Board of the Borough of Bound Brook

March 29, 2012

JOSEPH KLEIN AND CAROL KLEIN, PLAINTIFFS-APPELLANTS,
v.
PLANNING BOARD OF THE BOROUGH OF BOUND BROOK, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-904-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 14, 2012

Before Judges J. N. Harris and Koblitz.

This is an appeal by plaintiffs Joseph Klein and Carol Klein from an order of the Law Division affirming defendant Borough of Bound Brook Planning Board's (the Board)*fn1 decision to deny a use variance to permit outdoor parking of thirteen trucks at the rear of plaintiffs' property on West Main Street. Plaintiffs raise two points on appeal, challenging the action of the Board as well as the judgment entered by Judge Thomas C. Miller. We conclude that plaintiffs' arguments are without merit, and we affirm substantially for the reasons set forth in the judge's comprehensive twenty-page written opinion of August 8, 2011.

I.

The subject property is one-half acre in area and is improved with two brick buildings and a parking lot. One building is devoted to retail use (a specialty hardware store) and the other is used for storage and repair of machinery.

When plaintiffs acquired the property in 1991, the parking area was being used for the storage of motor vehicles, including school buses and dump trucks from time to time. This use continued through the Board's proceedings. No evidence was presented to indicate when motor vehicles were first stored on the property or when the relevant zoning ordinance was adopted.

The property is located in Bound Brook's B/R Business/Residential District, which permits retail uses as the zone's primary intended use. The surrounding neighborhood is an area of mixed uses, including a truck repair facility, a boarding house, a motor vehicle rental business, and a closed gasoline station. The outdoor storage of trucks in the B/R Business/Residential District is prohibited by Bound Brook's zoning ordinance.

Plaintiffs' expert witness, licensed planner Roger DeNiscia, opined that the site qualified for a use variance because, among other reasons, it was "a continuation of the existing and historical use on the site, and you might even say it's a minimal alteration of an existing non-conforming use." Accordingly, DeNiscia was of the view that "the site and area are particularly suited to the storage use." Additionally, DeNiscia indicated that the application advanced two goals of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163: (1) the promotion of the State's public health, safety, morals, and general welfare (N.J.S.A. 40:55D-2(a)) and (2) the encouragement of transportation routes that will promote the free flow of traffic (N.J.S.A. 40:55D-2(h)).*fn2

In a five-to-two vote, the Board denied the application. Its memorializing resolution found that plaintiffs had failed to satisfy the affirmative and negative criteria embodied in N.J.S.A. 40:55D-70(d). In particular, the Board concluded that the applicant had failed to demonstrate that the site was particularly suited for the proposed use variance sought. Moreover, the Board found that the special reasons offered by Planner DeNiscia did not support the grant of the use variance and, in fact, were perfunctory and without much detailed or factual analysis and support.

The Board finds the Planner DeNiscia's testimony as to the positive criteria, -- 2a and 2h -- was perfunctory, sketchy, and not detailed.

Moreover, in evaluating the negative impact on the zone plan and ordinance, as well as the detriment to the public good, the Board has persuasive [sic] knowledge and expertise.

Judge Miller thoroughly canvassed the record and accurately applied the legal principles governing the action in lieu of prerogative writs. He ultimately dismissed plaintiffs' complaint, finding that the Board's findings and conclusions were supported by the evidence and ...


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