July 3, 2012
TECHNO VALLEY, INC., PLAINTIFF-APPELLANT,
CS KOIDA, LLC, BOARD OF ADJUSTMENT OF THE BOROUGH OF BERGENFIELD, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7280-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2012
Before Judges Lihotz and St. John.
Plaintiff Techno Valley, Inc., appeals from a Law Division order dismissing its complaint in lieu of prerogative writs, challenging the defendant Board of Adjustment of the Borough of Bergenfield's (Board) grant of use and bulk variances, N.J.S.A. 40:55D-70c and d, allowing defendant CS Koida, LLC (Koida), to construct and operate a health spa and accessory parking garage.*fn1
Following a hearing, Judge De La Cruz thoroughly reviewed the evidence submitted and considered the parties' arguments. She detailed her factual findings and legal conclusions in a comprehensive twenty-page written opinion, stating:
The Board found positive criteria presented, as it found that [Koida] did establish special reasons for the grant of the variances requested. The Board found special reasons included the proposed or intended use and specifics of the project promote the purposes of the Zoning ordinance as enumerated in N.J.S.A. 40:55D-2. This positive criterion was presented by way of Professional Engineer Michael J. Hubschman's testimony concerning the suitability of the intended property site, the fact that this project would remove a blighted area, would create local jobs given the projected maximum of 20 employees, including the valet and the projected number of customers of 200-250 per day. The Board also accepted that about an average of 80 patrons would be at the spa at any one point in time.
Further, the Board found and recognized that patrons of this business obviously would be patronizing other businesses in the Bergenfield area and thus, the project would encourage other property owners to upgrade and modernize their own property, as this property is anticipated to be state of the art. The Board recognized further that this modern facility would encourage the start-up of other businesses in the area and the project would further generate other business and consumers from nearby areas.
The Board also recognized that the site is an important economic resource that is currently in disuse and remediation of the building and parking lot would improve the visual appearance and esthetics of the area tremendously. The evidence that the Board further relied upon includes recognition of the state of disuse and disrepair and the apparent out-datedness on both properties that concern the Application. . . .
The Board found the expert testimony of Mr. Hubschman and Mr. DeNescia credible and further correctly found that said evidence [was] not otherwise refuted by any other evidence. The Board accepted their testimony as credible in its entirety. There was no pertinent opposition presented to counter the expert opinions . . . even though there was opposition testimony presented to the Application.
Additionally, the Board did recognize the potential detrimental effect[s] that would ensue from the grant of the variances, namely, the anticipated increase in traffic, the size of the structures in relation to other structures in the area and the expanded building coverage. However, the Board further required reduction of these detrimental effects by imposing upon the Applicant reasonable conditions on the use. . . .
[Koida] further has satisfied the negative criteria requirement of N.J.S.A. 40:55D-70(d) given the absence of any substantial detriment to the public good and given the fact that the intended project would not substantially impair the intent and purpose of Bergenfield's zoning plan and zoning ordinances. . . .
The Board concluded after substantial analysis that the proposed use does satisfy the positive and negative criteria for the use variances, but only after carefully weighing both positive/negative criteria and its overall effect on the public good. This
[c]court concludes that the Bergenfield Zoning Board of Adjustment conducted the proper analysis and applied the applicable law in reaching a reasonable conclusion based on the evidence presented.
The trial judge concluded plaintiff's complaint lacked merit and dismissed the action. Plaintiff appealed. On appeal, plaintiff challenges the trial judge's findings arguing the Board's decision was arbitrary, capricious and unreasonable as Koida failed to meet the negative criteria for approval of the requested use variance, suggesting the Board must consider the possible development of the site for a permitted use.
After careful review of the arguments advanced on appeal, in light of the record and applicable law, we affirm the Law Division's March 31, 2011 order, essentially for the reasons expressed by Judge De La Cruz in her written opinion. R. 2:11- 3(e)(1)(A).