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Iron Mountain Properties, LLC v. Township of Freehold Zoning Board of Adjustment

April 11, 2012

IRON MOUNTAIN PROPERTIES, LLC, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF FREEHOLD ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5904-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 28, 2012 -

Before Judges Fuentes, Graves and Haas.

This is an appeal by plaintiff Iron Mountain Properties, LLC, from an order of the Law Division affirming the decision of defendant Township of Freehold Zoning Board of Adjustment (the Board) to deny a use variance to permit plaintiff to convert a home located in the Residential R-25 Zone into a single-story dental office. Plaintiff challenges the action of the Board as well as the judgment entered by Judge Lawrence M. Lawson. After reviewing the record in light of the contentions advanced on appeal, we conclude that plaintiff's arguments are without merit, and we affirm substantially for the reasons set forth in Judge Lawson's comprehensive thirty-page written opinion of June 28, 2011.

I.

The subject property is in an R-25 residential zone and consists of a single-story residential dwelling. Plaintiff submitted its application for a use variance to demolish the existing dwelling and construct a 3,000 square foot dental office. This is not a permitted use in an R-25 residential zone.

The Board held public hearings on the application and plaintiff submitted its plans and proofs. Plaintiff's president, Dr. Adam Eisenberg, D.D.S., testified that he operated a 2,500 square foot dental office at another location in Freehold. He sought to build the new facility in order to give him more room to conduct his business. The office would house one dentist, three assistants, two front desk staff and an office manager. Eisenberg anticipated that there would be twenty-five to thirty patients per day.

Plaintiff's engineer, William Kurtz, P.E., testified that there was sufficient space to address stormwater retention, refuse storage and buffering. There was also enough room for a twenty-three space parking lot. Plaintiff's professional planner, Christine Cofone, testified that the property is bordered by a pediatrician's office, which was a prior non-conforming use, a school parking lot, and another residence owned by plaintiff, which was not part of the application. In Cofone's opinion, the proposed dental office would serve as a "transitional" area to some of the more intensive uses in the area, including the school and some offices.

Plaintiff also presented the testimony of a traffic expert, Gary Dean, who opined that the proposed use "was unquestionably a low traffic generator." Two residents testified in opposition to the application. They were concerned about the commercial nature of plaintiff's proposal and its potential impact on the residential neighborhood.

In a six-to-one vote, the Board denied the application. Its memorializing resolution found that plaintiff 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 property is particularly suited as a residence and that its conversion to a commercial use would undermine the Zoning Ordinance and Master Plan." The Board further found that plaintiff's application "cannot be granted without a substantial negative impact on surrounding property owners;" that plaintiff had "failed to show that the property could not be sold as a home[] and so no hardship exists;" and that there were "sufficient [other] locations throughout the Township which would permit this use."

Judge Lawson thoroughly canvassed the record and accurately applied the legal principles governing the action in lieu of prerogative writs. He ultimately dismissed plaintiff's complaint, holding that the Board's findings and conclusions were supported by the evidence and were not arbitrary, capricious, or unreasonable. This appeal followed.

II.

"[W]hen reviewing the decision of a trial court that has reviewed municipal action, we are bound by the same standards as was the trial court." Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). Thus, our review of the Board's action is limited. See Bressman v. Gash, 131 N.J. 517, 529 (1993) (holding that appellate courts are bound by the same ...


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