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Metropolitan Plant Exchange, Inc., and Frank Vastano v. R & R Trees

December 17, 2012

METROPOLITAN PLANT EXCHANGE, INC., AND FRANK VASTANO, PLAINTIFFS-APPELLANTS,
v.
R & R TREES, L.L.C., AND FORT LEE ZONING BOARD OF ADJUSTMENT, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-11237-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 6, 2012

Before Judges Ashrafi and Hayden.

Plaintiffs Metropolitan Plant Exchange, Inc. (Metropolitan), and Frank Vastano, Metropolitan's sole shareholder, appeal from the October 26, 2011 Law Division order dismissing their complaint in lieu of prerogative writs, which challenged defendant Fort Lee Zoning Board of Adjustment's (the Board) grant of use and bulk variances to defendant R&R Trees, L.L.C. (R&R), to operate a seasonal Christmas tree lot. For the reasons that follow, we affirm.

The record reveals that R&R filed a variance application with the Board on September 9, 2010 seeking to use a portion of a non-conforming commercial use property for seasonal sales of Christmas trees and wreaths for approximately six weeks every year. The proposed site was situated in an R-2 residential zone on a lot containing the non-conforming use, a well-known hot dog eatery, which had a fenced outdoor picnic area used only from April through October. Sales would take place in the outdoor area, which was fifty feet wide and one hundred twenty feet deep. The applicant proposed no permanent site improvements but intended to install temporary overhead lighting, one sign and a sales booth. The site was located on a four-lane main thoroughfare, which hosted a variety of uses, including gas stations, office buildings and restaurants.

On September 28, 2010, the Board heard testimony from the applicant, and no member of the public appeared or objected. The Board then unanimously approved the variance application, subject to a number of conditions limiting the dates and hours of operation and the size of the signage. On October 12, 2010, the Board passed a written resolution, which incorporated by reference all exhibits, documents, and testimony submitted before the Board. In the resolution, the Board found that: the outdoor area is generally used only during the warmer months so its use during the Christmas season would not result in overuse of the property; the property is located on a main road which can accommodate any additional traffic; the proposed use is for six weeks and does not require any permanent improvements; the sale of trees and wreaths is not the type of activity that will create noise and disturbance even at peak hours of operation; and the site has sufficient parking to accommodate the traffic. The Board concluded that the applicant had presented sufficient proof to satisfy both the positive and negative criteria required for granting the variance.

Plaintiff filed an action in lieu of prerogative writs in Superior Court, Law Division, to set aside the Board's decision, alleging that R&R failed to meet its burden of proof and that the Board's approval was contrary to the Municipal Land Use Law (MLUL). N.J.S.A. 40:55D-1 to -136. Judge Joseph S. Conte reviewed the record from the Board hearing and observed that the Board found that the proposed use advanced two purposes of the MLUL, N.J.S.A. 40:55D-2(a) and (m). He determined that the applicant had met its heightened burden of proof:

On the positive criteria, R&R presented sufficient evidence that the general welfare is promoted, as the site is particularly suited for the proposed use. Although the plot is located in an R-2 residential zone, the surrounding area consists of mixed uses, including gas stations, office buildings, and restaurants. Permitting the use is an efficient use of land because the outdoor area is not used during the proposed 6 weeks of operation, and there will be no over use of the property.

For the negative criteria, R&R sufficiently established that there will be no substantial detriment to the public good and the use will not substantially impair the intent and purpose of the Zone Plan and Zoning Ordinance. The [Board] reasonably grounded its decision on the temporary six week duration of the proposed retail business and the fact that the aesthetics of the surrounding area will not be adversely affected. Considering no permanent improvements will be made to the property, the benefits to the property and surrounding area outweigh any detriment.

Consequently, Judge Conte found that the Board did not act arbitrarily, capriciously or unreasonably, and dismissed the complaint. This appeal followed.

On appeal, plaintiffs contend that the Board's approval of the variance was arbitrary and capricious because the record did not contain evidence supporting the requisite statutory criteria. We disagree.

In reviewing a zoning board's decision, we are bound by the same standard as the trial court. Grubbs v. Slothower, 389 N.J. Super. 377, 382 (App. Div. 2007). Decisions of zoning boards to grant or deny applications constitute quasi-judicial actions of municipal administrative agencies, Willoughby v. Planning Bd. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997), and they are presumed valid. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002). Zoning boards "must be allowed wide latitude in their delegated discretion" because of their special knowledge of local conditions. Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005).

A municipal board's fact-finding should control if supported by substantial evidence in the record, but a court of law is not bound by the board's determination on legal matters. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). Nevertheless, due to its thorough familiarity with local conditions and the community's characteristics, courts usually accord deference to a board's interpretation of its zoning ordinance. Grubbs, supra, 389 N.J. Super. at 382. For this reason, a board's decision is presumed to be valid and will only be set aside if it is arbitrary, capricious or unreasonable. Berkeley Square Ass'n, Inc. v. Zoning Bd. of Adjustment of Trenton, 410 N.J. Super. 255, 263 (App. Div. 2009), certif. denied, 202 N.J. 347 (2010). The burden to prove arbitrary and capricious ...


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