On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4807-09 and Ocean County, Docket No. L-4532-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and St. John.
These two matters, calendared back-to-back, are consolidated for purposes of our opinion. In A-6057-09, defendant, the Zoning Board of Adjustment of the Township of Middletown (the Board), appeals from a Law Division order reversing the Board's denial of plaintiff's application for use and bulk variances to construct and operate a domestic violence shelter. Plaintiff, 180 Turning Lives Around, Inc., cross-appeals from that portion of the Law Division order remanding the matter to the Board for consideration of whether conditions on site plan approval were appropriate. The appeal was stayed pending the Board's remand. On remand, the Board imposed sixteen conditions on plaintiff's site plan approval. Plaintiff appealed to the Law Division arguing one condition was arbitrary, capricious and unreasonable. The Law Division agreed and excised the offending condition. In A-4907-10, cross-appeals were filed by the Board and plaintiff. The Board challenged the removal of the condition and plaintiff challenged the court's determination that the development was a non-residential use.
We have reviewed the arguments presented in these matters in light of the record and applicable law. We affirm.
Plaintiff is a non-profit charitable organization, which "provides services to domestic violence and sexual assault victims." Plaintiff purchased the subject property, Block 605, Lot 59 in Middletown Township, to construct and operate a temporary domestic violence shelter for twelve victims and their families, which was described as "a safe place" for victims to reside until they "obtain a restraining order, get their court case heard, [or] obtain whatever other assistance they need[.]"
The property is approximately 85,000 square feet and located in a B-2 general business zone, having a 267 foot frontage on Magnolia Lane. Magnolia Lane connects to Route 35 North. A stream runs north to south along the eastern edge of the property. Topography, such as wetlands and unique slopes, dictate the placement of the structure on the property.
The property's neighboring developments are both commercial and residential. Across Magnolia Lane to the west, single family homes have been developed, to the north there are undeveloped lots zoned for business use (a B-2 zone), to the east is the rear of a Sears department store, and to the south is an undeveloped residential lot, zoned R-22, which is encumbered by a twenty to twenty-five foot utility easement. That undeveloped property's southern neighbor is a dog kennel.
On March 20, 2008, plaintiff filed an application with the Board, seeking major site plan approval, use and bulk variances, and design waivers for a proposed development, which included a 21/2 story, 13,457 square foot temporary shelter for domestic violence victims. The facility included twelve family-size bedrooms capable of housing a maximum of forty-two residents on one floor, and a basement "utilitarian level," comprised of living space, administrative offices, meeting areas, a dining room, a four cooking-module kitchen, an art room, laundry and bathroom facilities, and a computer room. The site plan proposed two access drive aisles: one for deliveries on the north side of the property and the other along the property's south edge, leading to a nineteen-space parking lot located in the rear of the building and another lot of six visitor parking spaces.
The development proposed is a nonconforming use in a B-2 zone. However, as proposed, the structure conformed to all bulk requirements except for a fifty-foot buffer requirement along the border of the southern residential zone. Plaintiff proposed an unobstructed twenty-nine-foot buffer, noting the encroachments to the fifty-foot buffer were its only right of way access aisle and a small portion of a parking area.
The Board held public hearings on plaintiff's application on August 25, 2008; September 22, 2008; November 24, 2008; January 26, 2009; April 27, 2009; June 1, 2009; and June 15, 2009. Plaintiff's witnesses included Anna Diaz-White, its executive director; Ned Gaunt, the project architect; James Kennedy, PE, a State licensed engineer; Jay Troutman, PE, a State licensed traffic engineer; and Peter G. Steck, PP, plaintiff's planner.
Steck asserted the proposed use was designated as an inherently beneficial use under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and suggested the designation of the property in the B-2 zone was "unusual" because "you can't see it from the highway." Similarly, Gaunt noted the proposed shelter incorporated residential design elements to give the structure "more of a residential character," including breaking the building into smaller components with roof lines, trim work, asphalt roof shingles, and landscaping elements. Troutman opined "this proposed use would not generate [a] significant increase in traffic to the area" and believed the projected traffic patterns were "compatible with the existing patterns and the existing infrastructure . . . in the area[.]"
Concerned Citizens for a Safe Middletown, (CCFSM) opposed plaintiff's development. CCFSM offered testimony from John Chadwick, PP, a professional planner. Chadwick opined the proposed use did "not rise to being an inherently beneficial use," characterizing the proposed use as "a transient residential facility." He believed the size, density, and contrast to the neighboring residential single family homes militated against granting a use variance, as the proposed development was "out of character with the neighborhood"; but, on cross-examination, conceded the development was a residential use.
During the public comment portion of the proceedings, attendees addressed the Board. Comments raised concerns regarding safety, traffic congestion, noise, diminished property values, and general aesthetics.
At the conclusion of the comment period during the June 15, 2009 hearing, the Board began its deliberations. The audio recording stops many times throughout the discussion, resulting in gaps in the transcript. The Board focused on the insufficiency of evidence regarding whether plaintiff satisfied the statutory "positive" and "negative criteria" to be entitled to a variance. See, e.g., Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 384 (1990); Medici v. BPR Co., 107 N.J. 1, 4 (1987); House of Fire Christian Church v. Zoning Bd. of Adj. of Clifton, 379 N.J. Super. 526, 534 (App. Div. 2005). Concluding "the use [wa]s inherently beneficial[,]" satisfying the positive criteria, the Board unanimously denied plaintiff's variance application, explaining plaintiff failed to prove the use would not be a substantial detriment to the public good or impair the intent and purposes of the zone plan. Keying on the size of the building and the intensity of the proposed use, the Board stated domestic violence shelters in a residential zone should not exceed a total of fifteen residents, whereas the development sought to serve twelve families. Also, the development as proposed presented a use "akin to a hotel or motel," was accompanied by traffic and security concerns, and may effectively cause rezoning of the remaining vacant lots in the B-2 Zone.*fn1 Because "the proposed use's intensity and size is a substantial detriment to the Zone Plan and Zoning Ordinances[,]" and the fact that a smaller building would remove plaintiff's need for bulk variances, plaintiff failed to satisfy the negative criteria or prove hardship. The Board's resolution memorializing its determination was adopted on August 24, 2009.
Plaintiff filed a complaint in lieu of prerogative writs. The trial judge concluded the proposed use as a domestic violence shelter was "in the upper category of beneficial uses[,]" requiring the Board to "identify the detrimental effect that will ensue from the grant of the variance and may reduce the detrimental effects by imposing reasonable conditions on the use." Determining the Board failed to properly "weigh the positive and negative criteria and determine whether[,] on balance[,] the grant of the variance would cause a substantial detriment to the public good," the court reversed the Board's denial, granted the variance, and remanded the matter to the Board to identify those reasonable conditions -- by way of the variance -- that should be imposed on the development to allow the approved use.
The judge memorialized her opinion in an August 2, 2010 order. The Board appeals, contesting the Law Division's reversal of its determination. Plaintiff filed a cross-appeal challenging the need for a remand.
Notwithstanding the cross-appeals, the remand proceeded before the Board. Plaintiff revised its proposal. In response to safety concerns, it added a fence on the east and south perimeters of the property. Also, plaintiff reduced the south-side access aisle from twenty-four feet to twenty feet, and increased the landscape buffer. However, plaintiff refused to reduce the width of the building by twenty-one feet, to implement the fifty-foot buffer.
The Board held a hearing on September 27, 2010,*fn2 and set forth its findings and conclusions in a later adopted resolution. Plaintiff's site plan was found "deficient," as no credible testimony justified plaintiff's position that it could not reduce the size of the ...