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Stephen M. Lamanna and Lila D. Lamanna v. Russell Charles Swan and Benjie Swan and Zoning Board of Adjustment of

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 20, 2012

STEPHEN M. LAMANNA AND LILA D. LAMANNA, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
RUSSELL CHARLES SWAN AND BENJIE SWAN AND ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MIDDLE, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-724-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 12, 2012

Before Judges Sabatino, Ashrafi, and Fasciale.

Victoria A. Steffen, attorney for respondent/cross-appellant Zoning Board of Adjustment of the Township of Middle, on the statement in lieu of brief and joins in the brief of Russell Charles Swan and Benjie Swan as to the cross-appeal only.

This appeal and cross-appeal involve a host of easement and land use issues relating to contiguous properties in Middle Township. Plaintiffs Stephen and Lila Lamanna ("the Lamannas") appeal from the trial court's ruling that the owners of an adjoining lot, defendants Russell and Benjie Swan ("the Swans"), had proven at trial the right to a prescriptive easement for residential use over a roadway on the Lamannas' property. The Swans, in turn, cross-appeal from the trial court's denial of their right to use that prescriptive easement for commercial purposes, specifically, for a laboratory on the Swans' property that extracts blood from horseshoe crabs for medical use. In addition, the Swans cross-appeal from the trial court's separate decision reversing a use variance granted to them by the Middle Township Zoning Board ("the Zoning Board") to operate the laboratory and to combine two principal uses, residential and commercial, on one lot.

For the reasons that follow, we affirm the trial court's rulings on the easement issues, albeit for slightly different reasons based upon intensity-of-use considerations. However, we reverse the trial court's nullification of the variances that were granted to the Swans by the Zoning Board.

I.

Although the appeals before us stem from separate proceedings on the easement and land use issues, we describe the overlapping facts and procedural history together.

The Subject Properties

The properties at issue are located in the Highs Beach section of Middle Township in Cape May County. The Lamannas own Block 148, Lot 6, which is a 35.5 acre parcel. That narrow property is approximately 300 to 400 feet wide and 3/4 of a mile long. Lot 6 is bordered to the east by Route 47, also known as Delsea Drive; to the west by Bay Avenue; to the south by the Swans' property; and to the north by Highs Beach Road, a road that runs east to west from Route 47 to Bay Avenue.

Most of Lot 6 consists of woodlands. However, the Lamannas own a dwelling, a two-story barn, and accessory structures on the easterly portion of Lot 6, near Route 47. There is also a cottage on the westerly portion of the tract.

The Swans own Block 148, Lot 7.02, directly to the south of the Lamannas' Lot 6. Lot 7.02 is bordered by Route 47 and a small tract (Block 148, Lot 7.01) to the east; Delaware Bay to the west; the Lamannas' property to the north; and Block 149, Lot 1 to the south. Lot 7.02 is a narrow parcel, similar in shape and size to the Lamannas' property. The improvements on Lot 7.02 are located on the westerly portion of the tract. The remainder of Lot 7.02 is primarily woodlands. The parcel has a number of isolated wetland areas.*fn1

Highs Beach Road, a public road, runs from Route 47 west, just north of the Lamannas' Lot 6. The road intersects with Bay Avenue, also a public street. Bay Avenue then runs due south along the westerly side of the Lamannas' lot.

The Lamannas claim that Bay Avenue ends before the southerly terminus of their lot. At that location, according to the Lamannas, there is a twelve-foot-wide right of way, which they refer to as their "driveway."*fn2 It is this stretch of road, as to which the Swans claimed a right of access by way of a prescriptive easement. If such an easement were recognized, the Swans would gain access for Lot 7.02 through the disputed right of way to Bay Avenue and then to Route 47.

Bay Avenue ranges in width from about seventeen to twenty-five feet. Where it runs along the Lamannas' property, Bay Avenue is composed of dirt, sand, and shells. The road was graded by the Township in the 1970s. Both Bay Avenue and Highs Beach Road were dedicated to the Township as public roads in 1948 as part of a subdivision.

The parties and the trial judge all proceeded under the assumption that Bay Avenue ended at some point before the Swans' property line and that the Swans, therefore, required an easement to gain access to Bay Avenue from Lot 7.02.*fn3 The Zoning Board operated under the same assumption that Bay Avenue did not reach Lot 7.02, as reflected by its resolution granting the Swans relief from the provisions of N.J.S.A. 40:55D-35. That statute forbids the granting of a permit for the erection of any building or structure "unless the lot abuts a street giving access to such proposed building or structure." Thus, the Board apparently likewise viewed Lot 7.02 as being, in essence, landlocked.*fn4

The Chain of Title and Historical Uses of the Properties

The relevant proofs concerning the chain of title to these properties and the properties' prior uses were as follows. Lot 6 was apparently established by way of a deed from Franklin Hoffman to Rebecca Camp in 1891. In the 1920s, the Camp family operated a horseshoe crab fertilizer factory on the site. Rebecca Camp conveyed the property to the State in 1931.

Lot 7 was conveyed to the Erricson family in 1921. In 1935, Lot 7 was subdivided into two thirty-five-acre lots, with the tracts given reciprocal easements. However, the easements stopped at what was described as the "Camp line," the dividing line between Lots 6 and 7.

Russell Conover, who had lived in the Township for eighty-six years, testified that a King Crab factory had operated on the Swans' lot in the 1930s and 1940s. He further testified that an oyster or crab shucking house was thereafter located on Lot 6. Conover accessed that site through Bay Avenue. He never observed a gate on Bay Avenue.

Gus and Julia Luciano purchased Lot 6 in 1946. They started a business renting out small beach cottages along the dunes. Gus Luciano also constructed a fishing pier on the bay side of the lot. The Lucianos' house was situated at the other end of the property, near Route 47.

In June 1950, Norman Jeffries leased a portion of Lot 6 from the Lucianos. He later assigned the lease to his company, East Point Oyster. The lease stated that Jeffries "shall at all times have free and unobstructed access to the demised premises from the public roads adjacent to the lands of the [Lucianos]."

In December 1950, East Point Oyster purchased Lot 7 from the Erricson family. Jeffries then constructed an oyster shucking house, an office building, and a small house on the westerly portion of the lot. The shucking house apparently employed several year-round employees.

Charles Cubbler, who lived on Bay Avenue just north of Highs Beach Road in the summers from 1945 to 1957 and continued to visit the area on weekends thereafter, testified that Bay Avenue was used sparingly until the shucking house was built in 1951. After that time, Cubbler recalled that various trucks used the road to access Lot 7. However, according to Cubbler, most of the trucks used Gus's Beach Road.

Joseph Hollinger, who spent summers in Highs Beach from 1955 to 1960, testified that in 1955 the Lucianos blocked off Bay Avenue with a chain because of a dispute with Jeffries.

Jeffries removed the chain, which led to an altercation with Julia Luciano. As a result, Julia Luciano was apparently charged with assault. The assault matter was heard in municipal court, and Ms. Luciano was fined and was ordered to remove the obstruction. Hollinger never saw Bay Avenue blocked off thereafter.

An oyster blight took place in the late 1950s, resulting in the shucking operation changing its primary operation to clams. The shucking house eventually ceased operations following two major storms -- one in 1960 and another in March 1962.

In 1963, William Lambert purchased Lot 7 from Jeffries. Lambert's son testified that when he went with his parents to visit Lot 7, he saw no people or signs of activity.

According to Cubbler's testimony, in the 1960s, after the shucking house had ceased operations, he noticed people living on the site. He recalled that the site generally remained occupied thereafter. Cubbler observed cars traveling in and out of Lot 7 in the 1970s. He also recalled seeing a metal gate on Bay Avenue at some point, but he did not remember it ever being closed.

Walter Canzonier, who worked for Rutgers University, testified that he collected shells for research on the bay side of Lots 6 and 7 after the shucking house had been destroyed until 1965 or 1966. Canzonier used Bay Avenue to access the properties, and he did not recall seeing any gates. Douglas Stanford, who lived in the area from 1950 to 1969, similarly testified that he never saw a gate or other obstruction on Bay Avenue.

John Mathis, who used to swim near the bay from about 1969 until the early 1980s, testified that he saw cars and other activity on Lot 7 "occasionally." He recalled very little traffic coming from Gus's Beach Road onto Route 47 because the road was flooded a great deal of the time.

David Webb, who fished in the bay off Bay Avenue during the summer, testified that he saw cars coming to and from Lot 7 from the time he started fishing in 1964 until the time he stopped in the late 1970s. Webb also claimed that there were people living on Lot 7 the majority of each summer. However, Glen Stites, who had lived on Highs Beach Road since 1970, testified that he did not recall anyone living on Lot 7 when he moved in.

Lambert sold Lot 7 to Cape Bay Homes, Inc., whose principal was Ernest Schleusener, in 1970. Cape Bay filed an application for a variance to construct a planned unit development in 1971. However, the Zoning Board denied that application. Nonetheless, a house was constructed on Lot 7 around that time.

Lot 7 was subdivided in 1974 to create Lot 7.01, a one-acre parcel along Route 47. Lot 7 was redesignated as Lot 7.02, which is now owned by the Swans.

In 1983, Schleusener purchased Lot 7.02. Schleusener hired another individual to manage the property. Both Cape Bay and Schleusener rented the lot while they owned it. The Motter family lived on Lot 7.02 in the mid to late 1970s. Thereafter, the McPherson family apparently lived there in the late 1970s and early 1980s. From about 1981 to 1986, the Chase family lived there. Witnesses testified that members of the Chase family were apparently selling drugs out of the house. Sidney Chase testified that he was never told that he could not use Bay Avenue to get to and from his house, nor did he ever see any gate or chain blocking the road.

Janice Ablett, who began spending summers in Highs Beach in 1948, testified that trucks would come to the shucking house by both Bay Avenue and Gus's Beach Road. She recalled traffic going to and from Lot 7 from 1955 through the 1970s. She further recalled there being traffic in the area in the late 1970s and early 1980s, after the shucking operation had closed, because of the drug dealing apparently taking place on the site. Ablett stated that there was a gate on Bay Avenue during that time, but that it was never closed.

Gena Murray, who lived in Highs Beach in the 1970s and 1980s, testified that Gus's Beach Road became more difficult to use by the early 1980s because it was "grown over." Murray did not remember there being a gate on Bay Avenue near Lot 7.

Craig Coles, who visited Highs Beach in the summers starting in 1945, similarly testified that, after the Motters moved out of Lot 7, certain "druggies" moved in. Coles recalled seeing a gate on Bay Avenue blocking access to Lot 7 for a short period of time in the late 1980s or l990s.

The Lamannas' 1984 Purchase of Lot 6 and Ensuing Events

The Lamannas purchased Lot 6 in 1984. Lila Lamanna testified that a title search at the time of the purchase reflected that there were no easements benefiting Lot 7.02. Stephen Lamanna similarly testified that no one informed him that Lot 7.02 had an access easement over their property.

At about the same time as the Lamannas' purchase, Rose Hearon was hired to manage Lot 7.02 for Schleusener. Hearon stated that a young couple, apparently the Chases, were living on the property at the time. The Chases left in 1984 after reportedly being arrested for distribution of drugs. Hearon rented Lot 7.02 intermittently for several years thereafter. Access to the property, including trash collection, was always from Bay Avenue.

In 1986, an application to subdivide Lot 7.02 was denied by the Township Planning Board. The application sought to subdivide a two-acre lot at the bay end of the property, containing the house.

In late 1987, the Lamannas had a cottage moved to the westerly portion of Lot 6. The cottage was about twenty feet off Bay Avenue, and it sat near the midway point of the property line.

According to Mr. Lamanna, as a result of problems with trespassing and garbage dumping, he and his wife decided to erect a gate at the Route 47 entrance to Gus's Beach Road in 1986. Mrs. Lamanna testified that she and her husband put up another gate on Bay Avenue in the summer of 1989 because Bay Avenue and their driveway looked the same, and they wanted to establish a dividing line. She maintained that they kept the gate closed.

Hearon acknowledged that the Lamannas put a gate across Bay Avenue in the late 1980s, but stated that she would move it out of the way to access Lot 7.02. Hearon denied having any conversations with the Lamannas about the gate or asking them for permission to use the driveway.

The Start of the Horseshoe Crab Blood Extraction Operations and Other Events

In September 1989, Hearon rented Lot 7.02 to James Finn, who used it to collect and bleed horseshoe crabs through a company named Finn-Tech. The operation was year-round. The blood from the crabs was then used to formulate the product limulus amoebocyte lysate ("LAL"), a substance with medical uses.*fn5

The Lamannas contended that they gave Finn a key to the gate. Mrs. Lamanna maintained that persons entering Lot 7.02, including Finn and, eventually, the Swans, had used the driveway only with the Lamannas' permission. Mr. Lamanna similarly testified that he gave Finn permission to use the driveway on a limited and temporary basis.

Defendant Mrs. Swan began working for Finn in September 1989. She accessed Lot 7.02 by way of Bay Avenue, as, she claimed, did most visitors and deliveries. However, some people used Gus's Beach Road to access the site.

At some point between 1989 and 1991, Mrs. Swan saw a gate on Bay Avenue about 150 feet from Highs Beach Road. She testified that, for about a year, the gate was opened and closed regularly. After that year, the gate was always left open.

During that time, Mrs. Swan contended that no one told her she could not use plaintiffs' driveway to access Lot 7.02.

Finn died in May 1991. Mrs. Swan then took over operation of the lab, which was renamed Limuli Laboratories.

The Swans' 1992 Purchase of Lot 7.02 and the Ensuing Dispute Over Access and the Driveway

The Swans ultimately purchased Lot 7.02 from the Schleusener's estate in July 1992. The Swans used the property both as a residence and for the commercial lab operation.

Mrs. Lamanna testified that after Finn died, Mrs. Swan asked for permission to use the driveway. Mrs. Swan allegedly told Mrs. Lamanna that the Swans would construct their own driveway as soon as possible. Mrs. Lamanna contended that Mrs. Swan acknowledged that she would not be permitted to use the driveway "forever." Mrs. Lamanna further testified that at some point the Swans put a "cable" across Gus's Beach Road near Bay Avenue. The Swans removed the cable after the Lamannas complained.

In her own testimony, Mrs. Swan denied ever asking the Lamannas for permission to use the driveway or thanking them for giving such permission. Mrs. Swan further testified that neither Finn nor Hearon told her that use of the road was permissive. She stated that a gate had been placed there only to prevent garbage dumping on Gus's Beach Road. She maintained that the Lamannas stopped closing the gate in 1993.

Mr. Swan similarly testified that he always believed that the driveway was a public road. According to Mr. Swan, he maintained Bay Avenue by pouring clamshells on the road and by fixing potholes, doing so without telling the Lamannas. Mr. Swan contended that he used to close the gate that the Lamannas had placed on the driveway when he and Mrs. Swan went on vacation. Otherwise, Mr. Swan did not recall seeing the gate closed.

Janice Coyle, a long-time local resident who had lived on the corner of Highs Beach Road and Bay Avenue since 1993, testified that people accessed the Swans' property on Lot 7.02 through Bay Avenue. Coyle recalled that it was impossible to drive on Gus's Beach Road. Coyle also did not remember the gate on plaintiffs' property ever being closed.

Through their counsel, the Lamannas sent the Swans a letter in May 2003 requesting that the Swans take steps to end their usage of the driveway.*fn6 The Lamannas thereafter withdrew their permission for the Swans to use their driveway in October 2003. According to the Lamannas, it was not until the following month that the Swans claimed a prescriptive easement. A breakdown in the relationship between the parties ensued.*fn7

The Swans' Variance Application Before the Zoning Board Meanwhile, as the Swans and the Lamannas continued to dispute easement and access issues for Lot 7.02, the Swans pursued plans to expand their laboratory operations. At first, the Swans contemplated building a new structure for the lab on Lot 7.02 further away from the Lamannas' property. The Swans ultimately decided to build a second story on their existing lab building instead. They did so in 2003 after obtaining various permits from the Township. They initially did not seek a use variance because they believed that marine-type uses were permitted by the Township on the site.

In October and December 2003, the Township issued the Swans building and construction permits to rebuild the residence on Lot 7.02 by tearing down the existing structure and building a larger house. However, the Township did not then inform the Swans that they needed to obtain a zoning permit. Construction of the new building was completed in the summer of 2004, and the Swans received a temporary certificate of occupancy. However, in May 2005, the Swans were notified by the Township that the construction was illegal and that they needed to obtain a variance.

Consequently, in December 2005, the Swans applied to the Zoning Board for use and bulk variances, as well as site plan approval, for the renovation and new construction. Specifically, they sought a use variance from the provisions of the Township's Sensitive Lands ("SL") district for the laboratory, and from the general provisions of the zoning code for the principal structure.

The Township did not have a zoning ordinance until 1963. Thereafter, Lot 7.02 was located in the SL zone. Permitted uses in the SL zone included, among other things, single-family residences; agriculture, horticulture and aquaculture farms; horseback riding stables; and kennels and veterinary hospitals. The Township's zoning ordinance specifically defined "aquaculture" as "the propagation, cultivation and collection of shellfish, fin fish, seaweed and other aquatic animals and plants." The maximum building height in the SL zone was thirty- five feet. In addition, the general provisions section of the zoning ordinance provided that only one principal structure and one principal use were permitted on a single lot.

In June 2006, the Township issued a notice of violation to the Swans that they were occupying a building without a certificate of occupancy. Meanwhile, the Swans' variance application went forward.

The Zoning Board held hearings on the variance application on six intermittent dates between February and September 2006. According to the testimony presented to the Board, the horseshoe crab population along the Delaware Bay was plentiful at that time. The crabs were typically collected*fn8 and brought into the lab, where they were placed in large bins, washed down, and then bled. The blood was then centrifuged, which drove the white blood cells to the bottom of the vial, where they were collected. The laboratory sent the blood cells to a laboratory in South Carolina, where it was converted into LAL by adding chemicals and freeze-drying the blood cells.

The Swans' lab operated a maximum of eighty days a year, usually from June to October, and employed up to six people. As of 2006, only six companies in the world refined horseshoe crab blood, none of which were located near Delaware Bay.

In addition, Mrs. Swan conducted research on the premises concerning horseshoe crab behavior. She completed a spawning survey and published a paper analyzing differences between horseshoe crabs in the Delaware Bay and horseshoe crabs in Raritan Bay and Chesapeake Bay.

Dr. Carl Shuster, an expert on the American horseshoe crab, testified on behalf of the Swans before the Zoning Board. Dr. Shuster stated that it was important that the Swans' laboratory continue its work with horseshoe crabs, in order to advance scientific understanding of the species, as well as to extract the blood. Dr. Shuster also noted that a large quantity of crabs was required to obtain a small amount of blood.

More broadly, Dr. Shuster maintained that the blood extraction could be fairly categorized as a form of aquaculture. Shuster conceded that the actual blood extraction was not site-specific. However, he asserted that it was more practical for the site to be near where the crabs were gathered because then the crabs would spend less time out of the water. Noting that the Swans' lab had been established and operating for a number of years, Dr. Shuster asserted that "it doesn't make sense . . . to [] relocate an operation that's on-going and succeeding in a place where it has existed."

In addition, the Swans' wetlands expert, Steven Ewing, testified before the Zoning Board that "it would be almost impossible to get the permits necessary to build a road on the Swan property from Route 47 to the residence or the business, because of the Federal and State Wetland Permits required[.]" Ewing maintained that the only feasible access to the Swans' property from Route 47 was by way of Highs Beach Road and Bay Avenue.

Lewis Conley, the professional planner who had submitted the site plan on the Swans' behalf, testified before the Board that the blood extraction was an "inherently beneficial use" under N.J.S.A. 40:55D-4 because the finished product has medical applications that potentially benefit Township residents. Conley noted there were only six such suppliers of horseshoe crab blood in the world.

Conley acknowledged that the Swans' laboratory conceivably could be located elsewhere in the Township or Cape May County. However, even if the lab were not regarded as an inherently beneficial use, Conley asserted that the site was "particularly suited" for its intended use and advanced the purposes of zoning by promoting the public health and conserving New Jersey's natural resources. According to Conley, granting the use variance would not substantially impair the Township's zoning plan.

The Lamannas appeared as objectors before the Zoning Board to oppose the Swans' variance request. The Lamannas' own planning expert, Shourds, testified that although there was a benefit to having the lab in its particular location, he believed that the Swans' application should be denied because the lab did not have to be at that particular location. Shourds contended that there were multiple other points in the Township and the County where there similarly was direct access to Delaware Bay. He also opined that the laboratory use on the site had intensified over the years, to the detriment of the Lamannas' property and the Township's zoning and master plans.

Coyle, a local resident referred to earlier, testified before the Zoning Board that the traffic from Highs Beach Road to defendants' property was generally "minimal" from the months of November to April. She estimated that only about four or five cars passed through per day when the laboratory was in operation. Coyle also observed a UPS or Federal Express truck on occasion. In her view, the traffic from the lab did not disrupt the peace and quiet of the neighborhood.

Conversely, Angela Gloria, a friend of the Lamannas who often visited Lot 6, testified before the Board that she noticed an increase in traffic going to the Swans' property in the months of May through August since the mid-1990s, Gloria complained that there were times when she was staying on the property in June 2004 when an estimated five or six vehicles would pass the cottage every hour. She stated that the sound of that traffic disturbed her sense of privacy and quiet enjoyment.

Debra Posmontier, who rented the Lamannas' cottage for a week in the summer of 2002 and a week in the summer of 2005, testified that there was far more traffic going to defendants' lot the second time she rented. The traffic would allegedly come close to the steps of the cottage.

Lynn White, who had rented the Lamannas' cottage on fourteen occasions between 1996 and 2006, testified that her own tranquility was disrupted by the noise of trucks delivering and unloading the horseshoe crabs. The noise would also disrupt her bird watching. Her husband, Bill White, similarly testified that the traffic had increased over the ten years they had been renting.

The Board's Approval of the Variances

Having considered these competing presentations, the Zoning Board voted on September 14, 2006 to approve the Swans' application for a use variance to operate a commercial lab in the SL district. The Board also granted the Swans a use variance to permit two principal structures, i.e., the laboratory and the residence, on the same lot. Bulk variances were also granted.

On October 12, 2006, the Zoning Board adopted a formal written resolution granting the Swans' variance requests, but deferring action on their site plan application. Among other things, the Board found:

[A]pplicant has demonstrated that the continuation of the horseshoe crab lab is a unique operation, which as one of six in the world, extracts a raw product . . . which is then manufactured into the pharmaceutical LAL[,] which is unquestionably a product of the utmost medical importance, benefiting residents of Middle Township as well as the world's population at large through its contribution to long term medical and drug research. Given this, the Board finds that this one of a kind use . . . can qualify as an inherently beneficial use which presumptively serves the purpose of promoting the public good. The Board further notes that although applicant runs the laboratory as a commercial operation, Mrs. Swan further testified and exhibits were presented to demonstrate the extensive research, including academic publication, she performs in her field. [Emphasis added.]

The Board further determined that even if the laboratory were not considered an inherently beneficial use, the Swans had established "special reasons" for the use variance. For example, the variance would advance such zoning purposes as appropriate use or development of land, conservation of valuable natural resources, and sufficient space in appropriate locations for a variety of commercial uses. In addition, the Board found that even though the laboratory use was not specifically permitted under . . . the current ordinance which does encompass 'aquaculture farms,' the Board finds that the use being requested by applicant is very similar in nature [] and . . . that the site is particularly suited for the proposed use.

The Board heard testimony that crabs can still be released back into the Delaware Bay and finds that given this property's location at Highs Beach . . . this site would certainly be more particularly suited to this activity than any other locations in Middle Township. [Emphasis added.]

The Board also found that the Swans had satisfied the so-called "negative criteria" for a use variance under N.J.S.A. 40:55D-70d(1), because any increases in traffic had not disrupted the neighborhood to such an extensive degree as to pose a substantial detriment to the public good. The Board also found significant that none of the Swans' year-round neighbors had opposed the application. Rather, the only such year-round resident who appeared, Coyle, had offered testimony supporting the Swans' application.

The Board concluded that there would be no substantial detriment to the zone plan or zoning ordinance by granting the use variance because of (1) the uniqueness of the use, (2) the permitted use of aquaculture farms, and (3) the similarity between the dual residential and commercial use and the permitted use of farms with accessory buildings.

The Board specifically conditioned the variance on the Swans having a valid easement extending from Bay Avenue across the Lamannas' property line to their site. The variance was further conditioned on the Swans securing approval from all other governmental bodies and agencies having jurisdiction, including the New Jersey Department of Environmental Protection ("DEP").

The Trial Court Litigation

In November 2006, the Lamannas filed a complaint in lieu of prerogative writs in the Law Division against the Swans, seeking reversal of the Zoning Board's approval of the Swans' application to construct a new house and operate a commercial horseshoe crab laboratory. The Lamannas further sought declaratory relief barring the Swans from traveling over the driveway located on the Lamannas' property.

The Swans denied the complaint's allegations and brought a counterclaim seeking a permanent easement over the Lamannas' property.

In July 2007, the Swans filed a separate action in lieu of prerogative writs against the Township, seeking the issuance of a temporary certificate of occupancy to permit use of the laboratory, or for an order authorizing that use. In August 2007, the trial court denied that request, thereby leaving the occupancy issue subject to the outcome of the zoning appeal.

The Statutory Moratorium

In the meantime, in March 2008, the Legislature passed a moratorium on the taking of horseshoe crabs in the State until such time as recovery targets for the red knot shorebird were met and a shorebird management plan was adopted. N.J.S.A. 23:2B-21a. An exception was created within the statutory moratorium, whereby the DEP was authorized to issue a permit for the taking and possession of horseshoe crabs "for biomedical purposes, provided that the horseshoe crabs are released otherwise unharmed to the same waters from which they were collected." N.J.S.A. 23:2B-21b(2). The Swans have not applied for such a permit from the DEP and, instead, have evidently obtained horseshoe crabs from out-of-state sources.

The parties subsequently agreed that the easement dispute would be tried separately prior to the resolution of the zoning appeal. An eight-day bench trial on the easement issues was thus held in June and July 2008.

The Trial Court's Easement Decision

On November 20, 2009, the trial judge issued a written decision granting the Swans a "residential" prescriptive easement over the Lamannas' driveway. However, the judge denied the Swans a "commercial" prescriptive easement that would enable such access for the laboratory.

In concluding that the Swans had established a residential prescriptive easement, the trial judge stated, among other things:

The record in this matter consists of convincing eyewitness testimony and photographs which clearly establish that from 1951 and for a period of more than 30 years, a variety of motor vehicles have consistently traversed Bay Avenue, across the Lamanna property, to access at various times during the prescriptive easement period the shucking house/oyster culture operation, the shell storage piles, and the residence on the property. The use of Bay Avenue by a host of users was deliberate, intentional, completely open, and visible. It was not done in secret or hidden from the owners of the servient property. The use of Bay Avenue to reach Lot 7.02 occurred with the full awareness of the residents of the Highs Beach neighborhood. [Emphasis added.]

The judge also found that the use of an easement through the Lamannas' property was sufficiently continuous, even though at times it was sporadic:

[T]here is little question that the intensity of the use did vary at times. Specifically, the use of Bay Avenue to access the residence on Lot 7.02, on occasion was sporadic or intermittent, and even during some brief stretches of time, nonexistent. Nevertheless, the evidence presented sufficiently supports the conclusion that the use of Bay Avenue to access the residence was continuous for a period of at least 30 years. The record in this matter more than amply establishes continuous use of Bay Avenue with no significant gaps for the 30-year prescriptive period as far as residential use is concerned. [(Footnote omitted) (emphasis added).]

Furthermore, the judge found that, as a matter of law, the statutory thirty-year, not the sixty-year, prescriptive period should apply:

The 60-year prescriptive period [in N.J.S.A. 2A:14-30] applies to 'woodlands or uncultivated tracts.' The statute simply does not contemplate carving or splitting a property into 'developed' versus 'uncultivated' portions for statute of limitations purposes. . . .

The facts established in this matter . . . demonstrate that during a significant portion of the 20th Century to the present time, there have been numerous structures located, occupied and utilized on the bayside portion of the Lamanna property, including a horseshoe crab fertilizer plant, fishing pier and residential cottages. Likewise, several houses existed on the Lamanna property toward the Route 47 portion of the property including a larger home. . . . There is little question . . . that a road which traverses the Lamanna property along the border of the Swan property from Route 47 to the Delaware Bay, i.e., Gus's Beach Road, has existed for many decades. Highs Beach Road, another public road, runs along the opposite border of the Lamanna property from Route 47 to the bay where it intersects Bay Avenue. The fact that both of these properties may be generally described as rural does not render the 60-year prescriptive period applicable. The property clearly has been 'developed.' [Emphasis added.]

In ruling that the thirty-year required period of use was fulfilled, the judge permitted the Swans to "tack onto" the periods of the other prior owners of Lot 7, because the use by those owners was likewise open, continuous, visible, and adverse.

Nevertheless, the trial judge concluded that the Swans had not satisfied the requirements for a commercial prescriptive easement:

[T]he record is undisputed that commercial use of Lot 7.02, including commercial motor vehicles accessing Lot 7.02 via Bay Avenue, ceased altogether in the 1960s. There is no evidence in the record of any commercial or business activity on the property from about 1966 until Finn commenced his laboratory operation in 1989. That gap of more than 20 years with no commercial use negates the existence of [a] prescriptive easement for commercial purposes for the requisite statutory period. [Emphasis added.]

The judge rejected the Swans' alternative claim that they were entitled to a "mixed" commercial/residential prescriptive easement:

The court is persuaded that the Swans' mixed residential and commercial use is not more intense . . . . [T]o conclude that the existence of the commercial use for only the first 15 years of the prescriptive period establishes a mixed residential/commercial use for the required 30-year prescriptive period, completely eviscerates the statutory 30-year prescriptive period. . . . The commercial use ceased to be open, continuous, hostile or visible halfway through the prescriptive period. A purchaser of the servient estate after the cessation of the commercial activity would not have adequate notice that a prescriptive easement which includes commercial use might be asserted, such that the new servient owner could resist the acquisition of such right before the prescriptive period elapses. [Emphasis added.]

The Trial Court's Subsequent Variance Decision

The parties and the court then turned their attention to the variance issues. After entertaining oral argument, the same trial judge rendered a written decision on October 12, 2010, reversing the Board's grant of a use variance for the Swans' lab. The judge also nullified the Board's approval of two principal uses, commercial and residential, on the Swans' lot.

In her written decision on the variances, the judge first determined that the Swans' laboratory was not an inherently beneficial use. She found the Zoning Board's contrary conclusion to be "highly problematic," because it seemingly "opens the flood gates" to any manufacturing or development of a medical substance or product being considered an inherently beneficial use. Furthermore, the judge ruled that the use would not provide a beneficial service to the public at large, because the extracted crab blood was shipped to a company in South Carolina, which actually manufactures the LAL.

The judge also noted that Mrs. Swan's horseshoe crab research was not dependent on the operation of the laboratory on site. Moreover, the judge held that the record before the Zoning Board did not establish that the horseshoe crabs could be found, collected, and released only from the Swans' property. In fact, because of the recent statutory restriction, the crabs had to be brought in from other states.

The judge further concluded that the Swans had not shown "special reasons" for a use variance and, more specifically, had not established that the site was "particularly suitable" for the proposed use. On this point, the judge held that the Board's conclusion that the site was particularly suitable for the laboratory was incorrect:

[D]ue to regulatory restrictions, the crabs must be trucked in from other locations to the Swan property. Benjie Swan can no longer obtain the crabs from the Delaware Bay off her property. . . . There is little question that the Delaware Bay is an area of high horseshoe crab concentration, nevertheless, there is absolutely nothing which requires the crabs to be released into the Delaware Bay at the Swans' property.

Furthermore, as to the research which Benji[e] Swan conducts, location of the laboratory at some other site would not in any way hamper the type of research she conducts. There is nothing to stop her from counting horseshoe crabs in the Highs Beach area from her property even if the lab were not located there. Additionally, nothing would preclude her from compiling the surveys which are mailed to her by other persons participating in the horseshoe crab surveys if her laboratory was located elsewhere.

There is nothing in the record to suggest that the Swans' property is a more suitable location for the laboratory than any other location in the Township where commercial operations are permitted. [Emphasis added.]

Having reversed the Board's finding that the "positive criteria" for a subsection d(1) variance had been established, the judge did not address the so-called "negative criteria" under the statute. See N.J.S.A. 40:55D-70d.

The Present Appeal and Cross-Appeal

On their appeal, the Lamannas seek reversal of the trial court's decision granting a prescriptive easement for access to the Swans' property through the driveway on Lot 6. In all other respects, the Lamannas urge that we uphold the trial judge's rulings.

Conversely, the Swans cross-appeal the trial court's denial of a prescriptive easement for commercial purposes. They also cross-appeal the court's reversal of the variance relief they had obtained from the Zoning Board and urge that the Board's decision be given deference and reinstated.

II.

The trial court's easement determinations were soundly based upon a reasonable assessment of the evidence presented at the eight-day trial. They were also legally correct, albeit for slightly different reasons in one respect than those expressed in the trial judge's opinion.

A.

An easement is a "non-possessory incorporeal interest in another's possessory estate in land, entitling the holder of the easement [dominant owner] to make some use of the other's property [servient owner]." Leach v. Anderl, 218 N.J. Super. 18, 24 (App. Div. 1987). To create an easement by prescription, as with adverse possession, the use must be adverse or hostile, visible, open and notorious, and continuous. Yellen v. Kassin, 416 N.J. Super. 113, 119-20 (App. Div. 2010); see also Plaza v. Flak, 7 N.J. 215, 222-23 (1951) (concluding that the plaintiff had established a prescriptive easement to use an alleyway that separated the parties' properties). The requisite adverse time period in New Jersey is generally thirty years; however, the period is sixty years for woodlands or uncultivated tracts. N.J.S.A. 2A:14-30. The proponent of the easement has the burden of establishing the elements by a preponderance of the evidence. Yellen, supra, 416 N.J. Super. at 120.

Generally, whether an easement exists is a mixed question of law and fact. Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J. 591, 604 (1964). On appeal, the record is examined to determine whether the facts concerning the easement issues as found by the trial court are supported by substantial credible evidence. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). However, we review de novo whether the trial court properly applied the law to the facts, or properly interpreted the law itself. Yellen, supra, 416 N.J. Super. at 119. With these review standards in mind, we turn to the trial court's determination that the Swans were entitled to a prescriptive easement for the use of the driveway because they established (1) open and notorious use; (2) adversity or hostility; and (3) continuity over the required period of years.

B.

"Open" use, in the context of easement law, "generally means that the use is not secret." Id. at 121. The related term "notorious" generally means actual knowledge on the part of the property owner or that the use is widely known. Ibid.

The Lamannas do not claim that the use of the driveway by the Swans and their predecessors in title was not open, but rather contend that the use was not notorious. Generally, the use in question "must be so notorious that an ordinarily prudent person would be put on notice that the land is in actual possession of another." Patton v. N. Jersey Dist. Water Supply Comm'n, 93 N.J. 180, 186 (1983). The trial judge reasonably found that element satisfied here.

The use of the driveway on Lot 6 to access Bay Avenue was the primary, if not the only, means of egress and ingress to Lot 7.02 for a number of years. Moreover, various residents, employees and commercial vehicles used the driveway to reach Lot 7.02 from at least 1950 onward, as attested to by visitors to the area and nearby residents. Where the use of the land is readily visible, the owner is presumed to have knowledge of that adverse use. Cf. Mannillo v. Gorski, 54 N.J. 378, 388 (1969) (applying these principles in the analogous context of adverse possession).

The persistent use of the road between the end of Bay Avenue and the beginning of the boundary line for Lot 7.02 created a presumption that an ordinarily prudent person would have had knowledge of it. The Lamannas' trial proofs did not overcome that presumption. We agree with the trial judge that "[t]he use of [the driveway] by a host of users was intentional, completely open, and visible." We also concur that "[t]he use of Bay Avenue to reach Lot 7.02 occurred with the full awareness of the residents of the Highs Beach neighborhood."

C.

We further agree that the trial proofs established the necessary elements of hostility and adversity. The adjective "hostile," in the context of easement law, refers to an intent to claim against the owner of the property "in such circumstances of notoriety that the owner will be . . . alerted to resist the acquisition of the right by the claimant." A.J. & J.O. Pilar, Inc. v. Lister Corp., 22 N.J. 75, 81 (1956).

The adverse use need not be established by intentional hostility. Leach, supra, 218 N.J. Super. at 28. However, when the use is permissive, it is by definition not adverse, but rather entails a revocable license. Mandia v. Applegate, 310 N.J. Super. 435, 444 (App. Div. 1998). The determination of whether the possession was sufficiently hostile and notorious "depends upon the situation and condition of the property and the uses to which the true owner designedly or permissively subjects it." Plaza, supra, 7 N.J. at 222.

The Lamannas contend that the use of their driveway by others was not hostile and adverse. Rather, they maintain that the use was permissive, as Lot 6 was vacant from the early 1970s until they bought it in 1984. The Lamannas further argue that because the driveway was used by the residents of both adjacent lots, the use was not hostile.

The Lamannas rely in this regard upon Yellen, supra, 416 N.J. Super. at 122, where we held that the evidence did not establish that the use of a driveway in dispute was hostile. The plaintiffs in Yellen did not use the driveway in a manner that suggested that they had a claim of right to do so. Ibid. However, in Yellen there was also an agreement between the plaintiffs and the defendants' predecessor in title to use the driveway. Id. at 117. No such agreement is present here for the relevant prescriptive period.

"[T]he presumption of permissive use may be rebutted where [among other things] the evidence tends to show that the disputed roadway comprised the sole means of access to plaintiff's land[.]" Presley v. Griggs, 362 S.E.2d 830, 831-34 (N.C. Ct. App. 1987). The record here reasonably supports the conclusion that use of the Lamannas' driveway was the primary means of accessing Lot 7.02 and that the driveway was the sole means of accessing Bay Avenue. Similarly, a potential alternative means of access, Gus's Beach Road, was described as narrow, often overgrown with vegetation, and prone to flooding.

Permission to use the driveway during the relevant time period was not requested or granted until 1989, after the prescriptive easement had, according to the trial court's analysis, already vested. Permission for use after the prescriptive period has been satisfied and the easement has vested does not extinguish the easement. See, e.g., Arrechea Family Trust v. Adams, 960 So. 2d 501, 506 (Miss. Ct. App. 2006) (applying this principle in upholding an easement despite permission being granted after the prescriptive time period had already been satisfied), cert. denied en banc, 959 So. 2d 1051 (Miss. 2007).

The Lamannas further argue that use of the driveway was not sufficient to establish hostility because the Swans did not, by their actions, "communicate" ownership and control over the driveway. The law requires no such communication to establish the elements of adversity and hostility. The actions of the respective landowners and visitors with respect to the use of the driveway are sufficient to satisfy the law.

D.

We also sustain the trial judge's related determination that the applicable prescriptive period here was thirty, not sixty, years. The relevant statute, N.J.S.A. 2A:14-30, provides:

Thirty years' actual possession of any real estate excepting woodlands or uncultivated tracts, and 60 years' actual possession of woodlands or uncultivated tracts, uninterruptedly continued by occupancy, descent, conveyance or otherwise, shall, in whatever way or manner such possession might have commenced or have been continued, vest a full and complete right and title in every actual possessor or occupier of such real estate, woodlands or uncultivated tracts, and shall be a good and sufficient bar to all claims that may be made or actions commenced by any person whatsoever for the recovery of any such real estate, woodlands or uncultivated tracts. [Emphasis added.]

The Lamannas argue that the trial judge erred in applying the thirty-year period because Lot 6 was allegedly "uncultivated," which should have triggered the longer sixty-year period. We disagree.

To support their argument, the Lamannas cite to J & M Land Co. v. First Union National Bank, 326 N.J. Super. 591, 597 (App. Div. 1999), aff'd in part, rev'd in part on other grounds, 166 N.J. 493 (2001), a case in which we applied the sixty-year statutory period to an adverse possession claim because the property at issue was an uncultivated tract. As described in our opinion, the property in J & M Land Co. was "open marshland that has never been cultivated and apparently is not suitable for any form of cultivation or development. In fact, there was testimony that the property is covered by water at high tide." Ibid.

The same cannot be said for Lot 6. Unlike the marshlands in J & M Land Co., Lot 6 has been suitable (and used) for development, as evidenced by the construction and occupancy of houses on its easterly and westerly ends. There were cottages on the bay side from 1946 to 1962. The Lamannas' cottage has stood on the bay side since 1987. A house and other structures have stood on the easterly end of the tract at least since the mid to late 1940s. There was no evidence presented that Lot 6 was covered by water from the bay. The wetlands on the tract are relatively isolated. Overall, the fact that Lot 6 has wetlands and is mostly wooded does not mean the entire tract is unsuitable for development, particularly the portion containing the driveway utilized by the Lamannas and others for access to Lot 7.02.

We likewise find distinguishable Spiegle v. Borough of Beach Haven, 116 N.J. Super. 148 (App. Div. 1971), another case cited by the Lamannas in advocating for the sixty-year period. In Spiegle, we observed that the sixty-year prescriptive period would apply to beachfront property that had been "in a general state of nature and left unimproved by its owner," and, apart from sporadic bathing and fishing activities, had been "relatively uninhabited and undeveloped" for much of the relevant time frame. Id. at 158-59. By contrast, Lot 6 has not been left in a natural state but instead has been improved with cottages and other structures.

In sum, the trial court did not err in concluding that the thirty-year statutory period governed this case. The record convincingly supports her determinations that the property "clearly has been developed," with numerous structures on the bay side portion of Lot 6 "during a significant portion of the 20th century to the present time" and that the disputed driveway "has existed for many decades."

E.

We next turn to the trial judge's analysis of whether the use of the driveway was sufficiently "continuous and uninterrupted" to support a finding of a prescriptive easement. As we have already noted, the judge divided her assessment, concluding that the Swans had demonstrated such continuous adverse use with respect to travel on the driveway for residential purposes, but had not proven it with respect to commercial purposes. Although we do not adopt the judge's residential/commercial distinction as a matter of law, we reach the same conclusions based upon considerations of the relative intensities of the uses.

As a leading treatise recognizes, a use is continuous if it is neither abandoned by the adverse user nor interrupted by acts of the owner. 4 Powell on Real Property § 34.10[3][a] at 34-102 (Wolf rev. 2000). "The terms continuous and uninterrupted are not synonymous; the first concerns the behavior of the alleged adverse possessor, the second concerns the behavior of servient owner." Ibid. To be continuous, it is essential that there be no break in the "attitude" of the adverse possessor, which could be evidenced by seeking the servient owner's consent, by abandoning the use following the owner's demand, or by paying the owner for the privilege of continuing the use. Id. at 34-103 to -104; see also Yellen, supra, 416 N.J. Super. at 122.

"The requirement of continuity has been construed reasonably. It does not demand that the use be made every instant of each day and night, but it is necessary to have the use made often enough to constitute notice of the claim to the potential servient owner." Powell on Real Property, supra, § 34.10[3][a] at 34-102 to -103 (footnote omitted). "'Seasonal uses, intermittent uses, and changing uses all may meet the continuity requirement so long as they are open and notorious.'" Yellen, supra, 416 N.J. Super. at 122 (quoting Restatement (Third) of Property: Servitudes § 2.17 comment i (2000)); see also Slater v. Ward, 460 N.Y.S.2d 150, 151-52 (N.Y. App. Div. 1983) (holding that "[s]easonal use does not negate the ripening of a prescriptive right").

Applying these principles to the trial proofs, the judge found that the use was sufficiently continuous for the requisite thirty-year period. These findings are adequately supported by substantial credible evidence in the record and warrant our deference. See Rova Farms, supra, 65 N.J. at 484.

We note, for example, that the shucking house was in operation from 1951 through 1962. Furthermore, Cubbler testified that Lot 7 was generally occupied from 1961 onwards. In addition, Webb testified that he saw cars coming to and from Lot 7 during the summer from 1964 until the late 1970s. Ablett recalled traffic going to and from Lot 7 from 1966 through the 1970s, and Mathis saw cars and activity on the property from 1969 to the early 1980s. The site was rented from at least the mid-1970s until the Swans purchased the property in 1992. Given such proofs, we agree with the trial judge that any gaps, seasonal or otherwise, were not significant enough to warrant a conclusion that the use was not continuous.

We have a slight, but legally inconsequential, disagreement with the trial judge's ruling that the thirty-year presumptive period began in 1951. Specifically, we regard the actions of Julia Luciano, i.e., blocking the driveway with a chain in 1955, as a sufficient interruption in the use to halt the prescriptive period. Nevertheless, the removal of the chain later that year, in compliance with a municipal court order, reactivated the prescriptive period. The trial proofs show that the use of the driveway thereafter remained continuous without similar exclusionary action by the owners until 1989, when the Lamannas installed a gate. This 1955-1989 time frame, spanning some thirty-four years, amply meets the thirty-year temporal requirement of N.J.S.A. 2A:14-30.

We concur with the judge that the June 1950 lease between the Lucianos and Jeffries for a portion of Lot 6, (the so-called "shell lot") does not negate the Swans' prescriptive easement claim. Cf. Mandia, supra, 310 N.J. Super. at 444 (noting that a permitted use with the owner's consent can negate the element of hostility for a claim of adverse possession). We recognize that the 1950 lease, which had a stated term of five years through 1955, granted Jeffries "free and unobstructed access to the [leased] premises from the public roads adjacent to the lands of the [l]essors." The Lamannas contend this provision within the lease enabled Jeffries to have road access for his shucking operations. However, the Lucianos' hostile act of erecting a barrier in 1955 is inconsistent with the Lamannas' theory that the lease or any permissive arrangement continued past 1955. Additionally, there is no documentation in the record that this lease was renewed after 1955. The lease is thus of no consequence, and it does not affect the ensuing 1955-1989 prescriptive period.

F.

The trial judge justifiably allowed the Swans to "tack onto" periods of adverse use by their predecessors in title. Such tacking is authorized, provided that all of the elements for a prescriptive right are continuously established and there is no showing that a predecessor in title "did not intend to convey the disputed parcel" containing the alleged easement. See Stump v. Whibco, 314 N.J. Super. 560, 568 (App. Div. 1998) (quoting Powell on Real Property, § 1014[2] at 91-61 (Dannenberg rev. 1990)).

We reject the Lamannas' contention that the land comprising the claimed easement must either have been mentioned in the deed of conveyance or there must have been other evidence of an intent to transfer possession in order for tacking to apply. As the Powell treatise notes, although "[t]here is some authority that . . . the claimant must show that [the] benefit was intended to pass to him or her[,] [t]he better view is that the succession in possession of the claiming dominant tenant suffices, without more." Powell on Real Property, supra, § 34.10[4][c] at 34-1109 to -112 (footnotes omitted) (Wolf rev. 2000). Although some of the reported cases involve specific mention of the easement in question by the transferor, such explicit reference is not essential for tacking to occur and for the successive owner to enjoy the continued benefits of the easement. We further reject the Lamannas' claim that the leasing of Lot 7 by Schleusener and his company vitiated tacking; the record amply establishes that the right to use the driveway was an implied aspect of the leasing arrangement. See also Murray v. Fuller, 186 P.2d 157, 160-61 (Cal. Ct. App. 1947) (similarly allowing a tenant's use of an easement to inure to the lessors' benefits).

G.

We are likewise unpersuaded by the Lamannas' claim that their purchase of Lot 6 in 1984 extinguished the easement because they were allegedly unaware of its existence at that time. As we have already noted, the trial judge's finding that the use was open, notorious, and hostile is well-supported by the record. The use was surely not hidden.*fn9 The Lamannas, as purchasers of Lot 6, took possession subject to that well-established open usage. Moreover, as a matter of law, adverse possession for the requisite statutory time period establishes full title in the possessor. J & M Land Co., supra, 166 N.J. at 500. The Lamannas cite no New Jersey case law or statutory provision that requires knowledge of the easement by the purchaser of the servient estate, or that states that a perfected prescriptive easement may be extinguished by a subsequent conveyance of the servient estate.

H.

We part company, however, with the trial judge's categorical distinction between residential and commercial uses in deciding the degree to which a prescriptive easement has been created. The court's analysis instead should have examined the intensity of the use, rather than whether the use is classified as residential or commercial.

Conceptually, a commercial use in certain contexts may be less burdensome on the servient property-owner than a residential use. For example, a hypothetical residential neighbor having a large household, with multiple drivers of multiple vehicles making numerous trips daily over a roadway, may pose more of an intrusion than a small business with only a handful of employees who use the roadway only on weekdays for commuting to and from the property. The proper focus instead should be on the burden actually imposed upon the servient tenant, including whether the present use is substantially or materially more burdensome than the prior prescriptive uses. See Restatement of Property § 478 (1944); see also Bray v. Grindle, 802 A.2d 1004, 1008-09 (Me. 2002) (applying these Restatement concepts).

Although the trial judge's legal reasoning was predicated on a flawed commercial/residential distinction, the judge did make several findings about the intensity of the driveway's use over time that bear upon the proper scope of the easement. The judge specifically recognized in her opinion that "[t]he intensity of the commercial use generated by [the Swans'] lot, including traffic on Bay Avenue, is no greater than the traffic generated during the period of time when the shucking plant/oyster culture operation was functioning." Even so, the shucking operations ceased in or around 1962 or 1963 after the previously-mentioned storms. As the judge correctly noted, "the record is undisputed that commercial use of Lot 7.02, including commercial motor vehicles accessing Lot 7.02 via Bay Avenue, ceased altogether in the 1960s."

In addition, "[t]here is no evidence in the record of any commercial or business activity on the property from about 1966 until Finn commenced his laboratory operation in 1989." During that interval of over twenty years, the activity on Lot 7.02 and the related use of the driveway, was essentially limited to the cottagers, occasional fishermen, and illicit drug buyers and sellers. Although these uses were sufficient to meet the requirements for continuous use of the easement, the intensity of such activities was manifestly less than when the shucking operation was in full force, with its ten to twelve year-round employees, trucks, and trailers. Indeed, the majority of the 1955-1989 prescriptive period involved substantially less-intensive uses. Given these circumstances, it was appropriate for the trial court to grant only an easement for a lesser-intensity use. See Tide-Water Pipe Co., supra, 42 N.J. at 604 (noting that "there is, arising out of every easement, an implied right to do what is reasonably necessary for its complete enjoyment, that right to be exercised, however, in such reasonable manner as to avoid unnecessary increases in the burden upon the landowner") (citation omitted) (emphasis added); see also Boss v. Rockland Elec. Co., 95 N.J. 33, 38 (1983) (quoting and applying this proposition).

I.

We therefore sustain the judge's granting of a prescriptive easement for the Swans and their family members and guests to use the driveway, as well as the judge's denial of a more expansive easement to accommodate ingress and egress for the Swans' more-intensive laboratory operations. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) (noting that judgments will be affirmed on appeal where warranted under the law, regardless of the correctness of the precise reasons expressed in the trial court's decision). The trial court shall accordingly amend the final order to eliminate the references to "residential" and "commercial" and instead substitute appropriate language in the order based upon the comparative intensities of use, consistent with our foregoing analysis.

As a starting point, we suggest that the revised order be phrased "the easement is granted for use of [land description of the right of way] located on Block 148, Lot 6 for purposes of access to Block 148, Lot 7.02 in accordance with the approximate level of intensity of use of Lot 7.02 through the prescriptive period." If the parties or the court believe that more specific language describing the intensity of use is warranted, the court may expand or modify this suggested phraseology accordingly.

J.

We have considered the balance of the Lamannas' arguments concerning the easement issues, including their claim that the judge abused her discretion in declining to reopen the record, post-trial, to allow for additional testimony by an electrician who had worked on Lot 7 in the 1970s. We conclude those remaining contentions as to the easement ruling lack sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(1)(E).

III.

We turn to the trial court's separate decision nullifying the Zoning Board's grant of a use variance to the Swans allowing them to operate the laboratory in a residential zone. We further consider the court's reversal of the Board's decision allowing the Swans to operate the lab on a site that also contains another principal use, namely the Swans' residence.

Because these determinations by the trial court entail questions of law and are based upon the same hearing record from the Zoning Board that the judge examined, we owe no particular deference to the trial court and independently review the record de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In undertaking our review, we must remain mindful that "public [land use] bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005) (citing Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965)) (upholding the grant of a bulk variance). When reviewing decisions by such bodies, courts consider whether the decision was "arbitrary, capricious, or in manifest abuse of its discretionary authority[.]" Ibid.; accord Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998). The degree of such deference to local decision-making is tempered, however, in a context where the land use body has, as here, granted a use variance application rather than denied it. Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75 (App. Div. 2006).

To obtain a use variance under N.J.S.A. 40:55D-70d, the applicant must satisfy both the so-called "positive" criteria, by establishing special reasons for the variance, and the "negative" criteria, by showing that the variance can be granted without substantial detriment to the public good and that it will not impair the intent and purpose of the master plan and zoning ordinance. Kinderkamack Rd. Assocs., LLC v. Mayor of Oradell, 421 N.J. Super. 8, 12 (App. Div. 2011). "Special reasons" have been broadly defined as matters that promote the general welfare by promoting the purposes of land use regulation, as set forth in N.J.S.A. 40:55D-2. Medici v. BPR Co., 107 N.J. 1, 18 (1987). Such special reasons can be established by an applicant showing any one of three possibilities: (1) the use is inherently beneficial, (2) the use serves the general public because the site is particularly suitable for the proposed use, or (3) there will be undue hardship to the owner if the variance is denied. Saddle Brook Realty, supra, 388 N.J. Super. at 76. Here, the Swans do not claim undue hardship, so only the first two concepts pertain.

A.

The Swans initially argue that their horseshoe crab laboratory is inherently beneficial. The Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to -163, defines an "inherently beneficial use" as "a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare." N.J.S.A. 40:55D-4. If the use is held to be inherently beneficial, it presumptively satisfies the positive criteria. Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 394 (1990). The determination of whether a particular use is inherently beneficial is a question of law. Rolfe v. Borough of Emerson, 141 N.J. Super. 341, 345 (Law Div. 1976); Cox & Koenig, New Jersey Zoning and Land Use Administration, § 7-5.1 (2012).

The Zoning Board found that the Swans' horseshoe crab blood extraction facility is such an inherently beneficial use. In making that finding, the Board noted, among other things, that the Swans' laboratory is one of only six such laboratories in the world and that the blood extracted from the crabs will serve the public at large. The trial judge rejected the Board's analysis, observing that the medical value of the extracted blood to the public at large does not necessarily make the use "inherently beneficial" for zoning purposes. The judge expressed concern that this rationale was too expansive and could extend to "unacceptable lengths," resulting in the manufacturing of medical products being routinely deemed "inherently beneficial."

We concur with the trial judge on this point. Although we appreciate the useful medical applications of the extracted crab blood, those applications do not constitute an "inherently beneficial" activity justifying a per se deviation from the zoning ordinance's use restrictions. Nor do those medical applications categorically satisfy the "positive criteria" under N.J.S.A. 40:55D-70d. The same could be said for a pharmaceutical company that manufactures prescription drugs. Apart from "institution[s] [] in furtherance of the public welfare," Bonsall v. Twp. of Mendham, 116 N.J. Super. 337, 344 (App. Div.), certif. denied, 59 N.J. 529 (1971), our courts have been hesitant to deem a commercial use, at least one engaged in manufacturing a product, an inherently beneficial use for zoning purposes. See, e.g., Burbridge, supra, 117 N.J. at 394-95 (holding that an auto parts recycling business does not "inherently serve the public good" where that business was not "particularly suited" to the location).

Unlike such inherently beneficial uses as hospitals, schools, or child care centers, the Swans' lab does not provide a particular localized benefit to the surrounding community. The lab's benefits, while undeniable, are instead widespread and have little nexus to the situs on Lot 7.02. We thus affirm the trial court's rejection of the Swans' claim of "inherently beneficial" status under the MLUL.

B.

As a separate and independent basis for relief, the Zoning Board also determined that the Swans had established "special reasons" for a use variance. In particular, the Board analogized the Swans' laboratory to an aquaculture farm, which is defined in the Township's zoning ordinance as a permitted use in the zone. The Board also determined that the blood extraction operation was particularly suitable for their property. The trial judge rejected these particular assessments by the Board, but we do not.

In striking down the Zoning Board's findings of special reasons, the trial judge noted that the Swans had not established particular suitability because there were other sites in the Township equally suitable. However, an applicant seeking a use variance need not show "unique" suitability, but rather "particular" suitability. Medici, supra, 107 N.J. at 9 n. 4.

Although it is true that, because of the statutory moratorium, the Swans had to begin using crabs harvested from other locales, the Board nonetheless had a reasonable basis to conclude that the site -- given its proximity to the bay and its seashore character -- was well suited for the laboratory activity and the return of the crabs to the bay after their blood was extracted. The Board also noted that the Swans' use was less intense than several others that are permitted in the zone. These considered assessments by the Board warrant more judicial deference than the trial judge accorded to them. See Jock, supra, 184 N.J. at 597. We therefore reverse the trial court's decision setting aside the Board's finding that the positive criteria were met.

C.

Because the trial judge nullified the Board's decision as to the positive criteria, she found it unnecessary to reach the "negative criteria" under the statute. We now have occasion to consider those negative criteria. Given that the judge has since retired and that this case involves an extensive record, we choose to exercise our original jurisdiction, pursuant to Rule 2:10-5, and directly review the Board's conclusions concerning the negative criteria. Having done so, we are persuaded that the Board has expressed ample grounds for concluding that the grant of a use variance to the Swans is "not inconsistent with the intent and purpose of the master plan and the zoning ordinance." Medici, supra, 107 N.J. at 21.

The Swans' lab is in a remote, sparsely-populated, rural area of the Township. As a condition of the use variance, the Swans were required to establish their right to an easement to Bay Avenue and to secure all required governmental approvals. In addition, the use has already been an active one for many years. The Board's conclusion that any increase in local traffic as a result of the use was "nominal" is supported by the record.

Although the activity is not identical, the collection of horseshoe crabs is similar to an aquaculture farm, which is a permitted use in the zone. The Township Ordinance's definition of "aquaculture" includes the collection of "other aquatic animals." Horseshoe crabs are indisputably aquatic animals. See generally Carl N. Shuster, Robert B. Barlow, & H. Jane Brockman, The American Horseshoe Crab 275 (2003). The Swans do not argue that the use is explicitly permitted as aquaculture, presumably because their laboratory is not a "farm." Nonetheless, the aquatic nature of horseshoe crabs further supports the Board's determination that granting the variance will not be a substantial detriment to the Township's zoning plan and ordinance.

In sum, we sustain the Board's assessment that the negative criteria for a variance were met by the enhanced quality of proof called for under Medici.

D.

Finally, we briefly consider whether the Board improperly issued an approval for the operation of two principal uses, i.e., commercial and residential, on the Swans' property. Generally speaking, applications for a variance for more than one principal use on a lot are to be treated as applications for a use variance. See Sun Co. v. Zoning Bd. of Adjustment, 286 N.J. Super. 440, 444-48 (App. Div.), certif. denied, 144 N.J. 376 (1996) (treating a request for the two principal uses of a gas station and a convenience store on the same lot as necessitating a variance).

Although the Board's resolution does not spell out why it granted the Swans permission to continue to operate the laboratory on-site while also maintaining a residence there, the same reasons that justify the use variance for the lab itself also weigh in favor of continuing or reinstating the mixed laboratory/residential use on the premises. The record does not suggest that the simultaneous presence of the Swans' residence on-site significantly intensifies the nature of the activity on the premises. The Board was well aware when it approved the Swans' application for the laboratory that they were also residing there. Consequently, we reject the Lamannas' argument, and decline to set aside the variance on this separate basis.

IV.

For the reasons we have expressed, (1) the trial court's November 20, 2009 order granting the Swans a limited prescriptive easement is affirmed, subject to a change of wording in the final order to encompass "intensity-of-use" factors, and (2) the trial court's October 12, 2010 order nullifying the Zoning Board's issuance of variances to the Swans is reversed.

To avoid undue immediate disruption of the status quo and to obviate the need for emergent relief, our decision is stayed for thirty days. If a petition for certification is timely filed, that interim stay shall automatically remain in effect, unless and until the Supreme Court otherwise directs.

Affirmed in part and reversed in part. The trial court shall issue an amended final order, consistent with the terms of this decision, within forty-five days. We do not retain jurisdiction.


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