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Thomas Mcfadden and Tammy Mcfadden, Husband and Wife v. Delanco Township Joint Land Use Board and Township of Delanco


July 3, 2012


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1069-10.

Per curiam.


Submitted April 30, 2012 -

Before Judges Sabatino and Ashrafi.

This case involves an attempt by plaintiffs to obtain variances that would enable them to convert their residential property into an ice cream parlor. Defendants, Delanco Township Joint Land Use Board ("the Board") and the Township of Delanco, appeal the Law Division's order dated April 15, 2011 reversing the Board's denial of plaintiffs' application for a prohibited-use variance under N.J.S.A. 40:55D-70d(1). We affirm the trial court's decision with respect to the so-called "positive criteria" required for a subsection d variance. However, we reverse and remand for further development of the record as to the required "negative criteria," particularly the traffic issues discussed in the Board's resolution.


Plaintiffs Thomas McFadden and Tammy McFadden are spouses and the record owners of the property designated as Block 1400, lots 1 and 2 on the Township's tax map. According to plaintiffs, at the time they purchased the property in the early 1990s, it was designated as a single lot, on which there were two "shacks." Plaintiffs demolished one shack and obtained a permit to construct a house on the property. The Township sought to block construction of the house, which resulted in litigation.

The house-construction dispute was resolved by a 2003 consent order. Pursuant to that consent order, plaintiffs' property was divided into lot 1 and lot 2. The consent order specified that "[e]ach of the individual subdivided lots created by this [o]rder shall comply with the current bulk and area standards of the C-Commercial Zoning District under the Delanco Township Zoning Ordinances[.]"

The present appeal concerns lot 1, which, at the time of plaintiffs' application, contained a two-story, single-family home and a shed. Lot 1 includes a driveway and parking for up to four cars. Plaintiffs live in a separate home on the adjacent lot 2.

Lot 1 is a waterfront property that abuts the Rancocas Creek. It is in an "R-6" residential zone and located on the corner of Rancocas Avenue, a narrow residential street, and Burlington Avenue, Delanco's "main street." A public park is located across the street from lot 1 on the other side of Rancocas Avenue.

In July 2009, plaintiffs submitted an application to the Board seeking to convert the home on lot 1 into an ice cream parlor and an apartment that would be compliant with affordable housing requirements. An ice cream parlor is considered within the Township's ordinances to be a "C-1" commercial use. At the time of plaintiff's application, such commercial uses were permitted in the R-6 zone as conditional uses. Hence, plaintiffs were seeking a conditional-use variance. Plaintiffs also sought several variances related to lot depth and setback requirements.*fn1

After plaintiffs submitted their application, the Board's planner, Scott Taylor, concluded that an ice cream store would be permitted as a conditional use on lot 1 in the R-6 zone, provided that all area, bulk, and other requirements for the C-1 zone were met. Because the applicants did not fully meet those particular requirements, Taylor advised that a conditional-use variance was needed. He also noted that the Township's 2009 Master Plan had recommended lot 1 to be rezoned to be within the C-2 zone, which would allow plaintiffs' contemplated use as of right.

A public hearing on plaintiffs' application was commenced before the Board on December 1, 2009. Mr. McFadden testified in support of the application. Plaintiffs also presented testimony from James Blasberg, an architect licensed in New Jersey and other states. In addition, Hugh Dougherty, the Board's engineer, and Cheryl Bergailo, the Board's planner, provided unsworn comments about the application.

Several members of the community spoke out at the hearing in opposition to the proposed ice cream parlor. Among other things, some residents voiced concerns about the proximity of the proposed ice cream parlor to the public park. They expressed fears that children or other pedestrians patronizing the store would be struck by motorists when crossing the street. One speaker noted that there had previously been several accidents at or near the site.

At the end of the initial hearing session, plaintiffs' counsel requested that the application be tabled until the next Board meeting. The request was granted, and the application was carried to a future date.

On January 4, 2010, the Township's planners issued a written report concerning plaintiffs' application. The planners noted that the Township's 2009 Master Plan erred in recommending that lot 1 be rezoned from a "C-1 zone" to a "C-2 zone." They pointed out that lot 1 was, in fact, in an R-6 zone and had been incorrectly included in the Master Plan's list of existing commercially-zoned properties recommended to be rezoned. The planners further noted that the 2009 Master Plan otherwise called for the removal of C-1 uses as conditionally-permitted uses in the R-6 zone. To rectify this apparent mistake, the planners recommended that the Master Plan be amended to reflect that lot 1 remain zoned R-6, which would have had the effect of disallowing commercial operations as conditional uses on the property.

Following this advice from the planners, the Township's solicitor drafted a provision eliminating C-1 uses in the R-6 zone, including lot 1. That provision, which became known as Ordinance 2010-1, was specifically aimed at preventing plaintiffs from pursuing a conditional-use variance for the ice cream parlor under N.J.S.A. 40:55D-70d(3). The Township approved Ordinance 2010-1 on first reading in January 2011, and the ordinance was thereafter endorsed by the Board in February 2011.

On March 1, 2011 -- one day before the renewed Board hearing on plaintiffs' application for variances -- the Township adopted Ordinance 2010-1 following a public hearing. The new ordinance had the effect of converting plaintiffs' proposed ice cream parlor from a conditionally permitted use into a non-conforming use. Consequently, a prohibited-use variance under N.J.S.A. 40:55D-70d(1) was then required for plaintiffs' pending application.

The following day, March 2, 2011, the Board completed its consideration of plaintiffs' application. The Board concluded that plaintiffs had not established either the "positive" or "negative" criteria for a prohibited-use variance under N.J.S.A. 40:55D-70d(1).

As to the positive criteria, the Board's resolution acknowledged that plaintiffs had presented "a number of compelling indicators that the subject property is peculiarly well-suited to the proposed use." In that regard, the Board cited the site's frontage on Rancocas Creek, the fact that the property is adjacent to a public park, and the fact that Burlington Avenue is, in effect, the Township's main thoroughfare and "downtown" business area. Nevertheless, the resolution concluded that the proposed ice cream parlor would be "incompatible with the character of the surrounding area and that, if approved, the proposed use [would] diminish the safe and quiet enjoyment of neighboring properties."

In addition, the Board found that plaintiffs' property failed the "peculiar suitability" test for safety reasons, particularly traffic safety concerns. As the resolution noted:

The Board found that the adjoining property owners who testified that the proposed use would create a dangerous situation on Rancocas Avenue and at the Rancocas/Burlington Avenue intersection were correct. Three facts are at the heart of this conclusion. First, Rancocas Avenue opens onto Burlington Avenue only a few feet from the foot of the Delanco-Riverside Bridge; a drawbridge that opens periodically for marine traffic. Second, Rancocas Avenue is a short, narrow street. Because this is an older neighborhood many homes have little or no off-street parking[,] and residents need to park on the street. Finally no matter how many parking spaces the applicants provide, some of their customers will choose to park on the street, particularly those who don't plan on consuming their ice cream on the premises. Because the structure is close to the intersection, these cars will park close to the intersection whenever possible. When a car or cars are parked on the north side of Rancocas Avenue, cars driving west on Rancocas Avenue (toward the intersection) are forced to drive in the eastbound lane to get around the parked car or cars. Accidents will occur when these vehicles, traveling west in the eastbound lane are met by vehicles turning right onto Rancocas Avenue as they leave the bridge as well as cars turning left off of Burlington Avenue onto Rancocas Avenue just before the bridge. Accidents of this kind are also apt to involve pedestrians drawn to the area by the park and the applicants' proposed establishment.

The Board added, with respect to these traffic concerns:

Rancocas Avenue is a narrow local street which must accommodate on-street parking and cannot accommodate two-way traffic at the same time. Gateway Park has increased both pedestrian and vehicular traffic on the street. The proposed use will tend to increase it further. Neither Rancocas Avenue nor its intersection with Burlington Avenue can safely accommodate the increased traffic. A site that cannot safely accommodate the traffic, vehicular and pedestrian, that it attracts cannot be said to be peculiarly well suited to the proposed use.

The Board further observed that there is "ample space, literally right around the corner from this intersection, zoned for commercial use and convenient to the park that can provide this same amenity," i.e., an ice cream parlor. The resolution also noted that "[i]ntroducing the proposed commercial uses into this neighborhood of narrow streets with older homes on smallish lots will not improve the neighborhood [] [and] it will not do anything to promote or enhance its residential character."

With respect to what it identified as the negative criteria, the Board's resolution was less detailed.*fn2 The resolution recited that:

The record of the December 1, 2009 hearing contains substantial detail that, in sum, amounts to a neighborhood consensus that Gateway Park, while a public amenity, has detracted from the quality of life enjoyed by those that live around it. The Board agrees with the applicants' assertion that the proposed use would be a fine compliment to the public amenity. But, the Board also agrees with the neighborhood's sentiment that it will also further detract from the neighbors' quality of life.

This neighborhood has not benefited from the location of Gateway Park. A commercial use that further erodes the quality of life of its residents will further degrade the viability of this neighborhood and, therefore, cause substantial detriment to the public good. The proposed use variance should, therefore, be denied.

The Board thus concluded that plaintiffs had "failed to establish that the proposed use variance can be granted without substantially impairing the public good."

Plaintiffs then challenged the Board's adverse action by filing a complaint in lieu of prerogative writs in the Law Division. They also contested the validity of Ordinance 2010-1, which had been adopted while their land use application was pending.

After considering the parties' written submissions, the judge issued a tentative decision that proposed to uphold the ordinance but to reverse the denial of plaintiffs' use variance. The tentative decision also proposed to remand plaintiffs' application to the Board for site plan review. Following oral argument, the judge adopted the tentative decision, issuing a final judgment in plaintiffs' favor on April 15, 2011.

In first determining whether Ordinance 2010-1 was valid, the judge observed that "the Master Plan is ambiguous with regard[] to its treatment of [p]laintiffs' property," noting that the Master Plan itself had recommended lot 1 to be rezoned as C-2. The judge further observed:

Defendants' minimization of this ambiguity [in the Master Plan] is disingenuous . . .

[t]his is evidenced by [d]efendants' own planners being convinced that the property was recommended to be zoned in the commercial C-2 district[,] and it was not until their third report concerning

[p]laintiffs' application for a proposed ice cream shop that the [d]efendants' planners noticed the ambiguity. This [series of events,] coupled with the previous litigation history of this property where a consent order was entered to develop the property in accordance with the current bulk and area standards of [the] C-Commercial Zoning District . . . clearly creates confusion as to whether [p]laintiffs['] property was foreseen to be residential or commercial.

Even so, the judge concluded that the ordinance was valid, finding that the Master Plan's ambiguity as to lot 1 was "not sufficient to invalidate the entire ordinance," which the judge found is "objectively consistent with an integrated and comprehensive zoning scheme."

The judge also rejected plaintiffs' contention that the Township had engaged in impermissible spot zoning. He found that Ordinance 2010-1 is an "ordinance of general application which applies generally to all properties in the R-6 zone and was not enacted, or should not have been enacted, in sole response to [p]laintiffs' application." The judge thus concluded that "the [c]court does not believe that inverse spot zoning took place in this case, and will continue to view Ordinance 2010-1 as a validly enacted ordinance of general application."

Turning to the merits of plaintiffs' application, the judge found that plaintiffs had, contrary to the Board's ruling, satisfied the positive and negative criteria necessary to obtain a prohibited-use variance. Specifically, the judge found that:

First, the Board's conclusion that the legislative intent behind Ordinance 2010-1 prevented them from approving

[p]laintiffs['] application ignores the unique litigation history involving

[p]laintiffs['] property as well as the ambiguity in the Master Plan[.]

[The] consent order was executed after

[p]laintiffs' property was zoned R-6. It was clearly the intent of the [p]laintiffs and the Township to allow for the consideration of commercial development on the property.

In addition, the judge rejected the Board's conclusion that the ice cream parlor would be incompatible with the neighborhood because it would cause traffic problems. The judge found that traffic-based rationale "unsupported by the record below and therefore[] arbitrary, capricious and unreasonable." In support of this finding, the judge analogized the present case to Riya Finnegan LLC v. Township Council of South Brunswick, 197 N.J. 184, 193-94 (2008), a case in which the Court invalidated a zoning ordinance that had been passed in response to local residents' concerns, because those concerns were not supported by the facts in the record. The judge further stated that the Board had placed undue weight on traffic concerns, which were, in his assessment, "generic and insufficient."

The judge also concluded that the Board had improperly failed to consider: (1) the "location of the [p]roperty in the Burlington Avenue Corridor which was envisioned as a commercial downtown center"; (2) the fact that plaintiffs' proposed use "was a permitted use in the zone until the previous day when the zoning changed"; and (3) the fact that the proposed use "was consistent with the historical use of this location[,] which [had] contained an ice cream shop, beauty salon, tailor shop and

[a] luncheonette."

In sum, the judge concluded that plaintiffs had satisfied both the positive and the negative criteria necessary to obtain relief under subsection d and accordingly reversed the Board's denial of the use variance.

This appeal by the Township and the Board followed. They argue that plaintiffs failed to meet the enhanced proof requirements needed to overturn the municipal denial of a subsection d use variance; that plaintiffs' residential property is not particularly suitable to a commercial use; and that the trial court's reasons for granting relief were inadequate.

Plaintiffs, meanwhile, contend that the Board's rejection of their application was arbitrary, capricious, and unreasonable. Plaintiffs urge that we sustain the trial court's decision granting them relief.*fn3



It is well-settled that the grant of a use variance under N.J.S.A. 40:55D-70d requires an applicant to show that the variance "can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." The grant of a use variance pursuant to subsection d requires proof of both so-called "positive and negative criteria." Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 156 (1992).

With respect to the positive criteria, where, as here, the desired use is not inherently beneficial to the public good, the applicant must show "special reasons" why the variance should be granted. Such "special reasons" may include, among other things, the promotion of health and safety, the prevention of sprawl, and the creation of a desirable visual environment. Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 386 (1990). In particular, the applicant must show under the positive criteria that the proposed use is "peculiarly fitted to the particular location for which the variance is sought." Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 279 (1967); see also Medici v. BPR Co., 107 N.J. 1, 18 (1987).

Meanwhile, the "negative criteria" aspect of subsection d incorporates two distinct, but related, forms of proof. First, an applicant must show that the non-conforming use of the property will not cause "substantial detriment to the public good." N.J.S.A. 40:55D-70d. The focus of this criterion is site-specific, requiring an assessment of the proposed variance's impact on the surrounding properties and consideration of whether it will cause "damage to the character of the neighborhood[.]" Medici, supra, 107 N.J. at 22 n.12. That damage must preponderate over the potential benefits in order to weigh against the proposed variance. See Yahnel v. Bd. of Adjustment of Jamesburg, 79 N.J. Super. 509, 519 (App. Div.), certif. denied, 41 N.J. 116 (1963).

Second, as the Supreme Court explained in Medici, applicants seeking a use variance must offer "an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici, supra, 107 N.J. at 21. Such "enhanced proof" must "reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Ibid. Imposing such a heightened proof burden reflects a strong public policy in favor of "zoning by ordinance rather than by variance." Id. at 23; see also Kohl, supra, 50 N.J. at 275; Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75 (App. Div. 2006).

Because use variances "should be granted only sparingly and with great caution since they tend to impair sound zoning," Kohl, supra, 50 N.J. at 275, a reviewing court accords less deference to the grant of a use variance than the denial of one. Saddle Brook Realty, supra, 388 N.J. Super. at 75. In general, the municipal land use body's determinations should not be judicially disturbed, so long as they are "supported by the record and [are] not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998).

We now examine the trial judge's decisions as to the positive and negative criteria relating to plaintiffs' variance application.*fn4


The trial judge had an ample basis to conclude that plaintiffs' application established the positive criteria for a use variance. Indeed, the Board itself expressly acknowledged in its May 4, 2010 resolution that plaintiffs had "produced a number of compelling indicators that the subject property is particularly well-suited to the proposed use." Accord Kohl, supra, 50 N.J. at 279-80 (expressing the importance of particular suitability). Specifically, the Board recognized the property's location adjacent to the public park and the fact that it is near the Township's downtown business district. In addition, the record reflects that plaintiffs' site, unlike nearby commercial properties, is situated on a waterfront lot, which presumably would provide an attractive vista for patrons of the ice cream parlor.

The Board discounted the parcel's particular suitability for the proposed use because it found that the use was "incompatible with the character of the surrounding area." In explaining that finding, the Board mainly cited "traffic safety reasons," noting concerns that patrons of the ice cream parlor would park their cars on the nearby streets and create vehicular and pedestrian hazards. The Board also noted general "quality-of-life" considerations affecting neighbors in the R-6 zone. The Board's traffic safety concerns, however, relate more directly to the "negative criteria" under subsection d, which we consider in Part II(C), infra.

Furthermore, we concur with the trial judge that the Board's quality-of-life concerns overlook the fact that this property had long been zoned for commercial conditional uses and, in fact, once housed a prior ice cream shop, a beauty salon, a tailor shop, and a luncheonette. To be sure, the Township had the prerogative under the then-applicable "time-of-decision" principles to change course and adopt an ordinance amendment that countered plaintiffs' application.*fn5 Even so, the trial court had a sufficient basis to declare unreasonable the Board's bottom-line assessment of the positive criteria, particularly given the history of the property and its discrete characteristics. We thus affirm this aspect of the trial court's decision.


We have less confidence in the trial court's analysis of the negative criteria, at least on the record before us.

As we have already noted, the negative consideration discussed most extensively in the Board's resolution is its concern that an ice cream parlor would create intolerable traffic hazards. The Board specifically predicted that "[a]ccidents will occur when [] vehicles, traveling west in the eastbound lane [of Rancocas Avenue] are met by vehicles turning right onto Rancocas Avenue . . . as well as cars turning left off of Burlington Avenue onto Rancocas Avenue[.]" The Board predicted that "[a]ccidents of this kind are also apt to involve pedestrians drawn to the area by the park and the applicants' proposed establishment." The Board further envisioned that the nine parking spots that plaintiffs proposed for the site would be insufficient to discourage patrons from parking on the narrow local streets.

These traffic concerns detailed in the Board's resolution may well be legitimate. The problem is that the record before the Board is inadequate to enable proper judicial review of those determinations.

At the outset of the hearing on plaintiffs' application, the Township's engineer noted that plaintiffs had requested a waiver of the need to submit a traffic impact analysis, but the engineer recommended that the Board defer that request because he "wanted some testimony on the record with regard to [the] amount of traffic [and] number of vehicles[.]" Later in the hearing, after plaintiffs had completed their presentation, the engineer acknowledged that "with nine parking spaces [on site] . . . the [level of] trip generation which would ultimately . . . come out of a traffic study would be negligible." The engineer further acknowledged that the twelve-seat ice cream parlor would be "a low volume business," that the traffic it would add to the local streets would be "negligible," and that "a huge impact" was not expected.

The Board's resolution prefaced its discussion of traffic safety by asserting that "[t]he majority of the Board's members are long-time residents" and that "[t]he Board is familiar with this site and its surroundings[,] and this finding is grounded in its peculiar knowledge of local conditions." We recognize that a degree of judicial deference is owed to a land use board because of its special appreciation of local conditions. Burbridge, supra, 117 N.J. at 385. Even so, the conclusory predictions set forth by the Board are not corroborated by any expert report or analysis in the record. The Board's own engineer indicated that the traffic impact from the establishment would only be negligible.*fn6

We recognize that "[t]raffic control is . . . an appropriate matter for consideration in the grant [or denial] of a use variance." Cox & Koenig, supra, at § 7-4.1. Even so "the creation of traffic problems or exacerbation of existing traffic problems does not alone justify the denial of a variance for a proposed use." Ibid. (citing Dunkin' Donuts of N.J., Inc. v. Twp. of N. Brunswick, 193 N.J. Super. 513, 515 (App. Div. 1984) (affirming relief from the denial of site plan approval for a permitted use based solely on traffic concerns) and Glen Rock Realty Co. v. Bd of Adjustment, 80 N.J. Super. 79, 89 (App. Div. 1963) (invalidating a zoning ordinance that rezoned for one-family residential use a formerly commercial property where the traffic experts "pointed to an increase in traffic, but not beyond maximum safe capacity")). As the trial judge noted, the Supreme Court in Riya Finnegan, supra, 197 N.J. at 193-94, declined to sustain a municipal rezoning ordinance analogously predicated on traffic safety concerns where those concerns were not sufficiently supported by competent evidence in the record.

We are mindful that there is lay testimony in the record from residents voicing objections to the variance based upon traffic safety concerns. That testimony certainly has some relevance. However, the Court in Riya Finnegan observed that if such concerns expressed by objecting neighbors about traffic congestion were treated as dispositive, that could have the perverse effect of "fueling faster and more intensive development[,] as each property owner hurries to avoid being the owner of the last piece of undeveloped land." Ibid.

The trial judge rejected the Board's traffic-based rationale for defeating plaintiffs' application, describing the Board's reasons as "generic and insufficient." Cf. id. at 194 (noting the insufficiency of traffic concerns based upon "generic complaints"). We are not well enough informed to evaluate that conclusion, as the record on traffic issues has not been developed with sufficient competent evidence to decide whether the Board's concerns are reasonable or exaggerated. No traffic expert testified. The hearing and the limited oral comments provided by the Township engineer at the hearing do not correspond with the detailed predictions set forth in the Board's resolution.

Aside from these unsettled issues regarding traffic and parking impacts, we also briefly address the compatibility of the proposed use with the zoning ordinance and the Master Plan. The trial judge rightly acknowledged that Ordinance 2010-1 had altered the long-standing status of certain commercial uses in the R-6 zone as conditional uses, reclassifying them as prohibited uses the day before acting on plaintiffs' application. The judge also correctly noted the ambiguity in the Master Plan that provoked the amendatory ordinance, the proximity of the property to the Burlington Avenue corridor and the commercial downtown center, and the history of commercial uses at the site. The judge offered a sufficient rationale to conclude that plaintiffs had met their burden on this discrete portion of the negative criteria framework, and we do not disturb his conclusions.

For these reasons, we remand this matter to the Board for further consideration of the negative criteria bearing on plaintiffs' application, specifically the issue of traffic safety. In particular, a supplemental hearing should be held before the Board, possibly with the benefit of expert testimony*fn7

addressing the specific concerns about vehicular and pedestrian hazards expressed in the Board's resolution. In the meantime, the trial court's decision granting plaintiffs a use variance shall be stayed, effective thirty days from this opinion, unless the ice cream parlor has already been built and opened,*fn8 in which case either party may make an application to the trial court to either suspend or continue such operations while the record before the Board is further developed.

If the Board, upon completion of the remand proceedings, reconsiders its position and grants the use variance, the parties shall so advise the trial court so that the case may be dismissed. If, on the other hand, the Board reaffirms its denial of a variance, plaintiffs may move to reopen their Law Division case and to seek further review before that court.

Affirmed in part and remanded in part. We do not retain jurisdiction.

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