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Jesse Rosenblum v. Zoning Board of Adjustment of the Borough of Closter and James V.


January 7, 2013


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9476-10.

Per curiam.


Argued February 8, 2012

Before Judges Fuentes, Graves and J.N. Harris.

Plaintiff Jesse Rosenblum appeals pro se from a June 8, 2011 Law Division judgment affirming a decision by defendant Zoning Board of Adjustment of the Borough of Closter (the Board). The Board granted several variances to defendant James Crimmins (Crimmins), including a use variance to store commercial vehicles and material for his landscape and construction business on an undersized lot in a residential zone. For the reasons that follow, we reverse.

In 1997, Crimmins purchased lot 5 in block 1203, commonly known as 49 John Street (the property), in a residentially zoned district in Closter. Crimmins testified that when he purchased the property it contained a single-family dwelling and an "area for the outdoor storage of contractor's equipment." Following the purchase, Crimmins continued to maintain the residence and to use the outdoor storage area in connection with his business.

The property is located in Zoning District No. 2, Residence Area B, and is bordered by John Street on the south and Westminster Avenue, a paper street, on the north. The surrounding neighborhood contains residential, commercial, and industrial zones. While the lots located on the northern side of John Street are in a residential zone, the lots on the southern side of the street across from the property are commercially zoned. Westminster Avenue, which runs parallel to John Street, separates the residential properties from an industrial zone located on the northern side of Westminster Avenue. As a result, several residential lots, including the property, are located between commercial and industrial zones.

According to Article VI of the Borough of Closter Land Development Ordinance § 200-9A, properties located in District No. 2, Residence Area B are limited to "any use permitted in Residence Area A," and "[s]ingle detached homes used for not more than two families per structure and a double house used as a two-family residence." Further, according to the limiting schedule, lots located in District No. 2, Residence Area B must be a minimum of 12,500 square feet, but the lot area of the property is only 9,068 square feet.

N.J.S.A. 40:55D-89 requires a periodic reexamination of a municipality's master plan and development regulations by the planning board. The most recent master plan of the Borough of Closter was adopted in 1981 (Master Plan), and subsequent reexaminations were adopted in 1996, 2002, and 2008. The 2008 Master Plan Reexamination, adopted March 4, 2009, considered the "condition of Closter's industrial areas, and their relationship with the adjoining residential areas," such as on John Street. The 2008 Reexamination recognized the "lack of buffers or transitional areas separating active industrial activities from abutting residential areas" and the "seeming lack of enforcement of current zoning regulations" and recommended a "more detailed study" to "secure a longer-term solution." In addition, it recommended that the Borough "[c]ontinue to prohibit (and strictly enforce) the overnight parking or storage of commercial vehicles on residential properties."

Crimmins' use of the residential property in connection with his business continued until the Borough issued a notice of violation stating that the use violated the zoning ordinance. Consequently, Crimmins submitted an application to the Board for a use variance pursuant to N.J.S.A. 40:55D-70(d) for "outdoor storage on the property."

In support of his variance application, Crimmins submitted a planning report prepared by Burgis Associates, Inc., which stated:

The continued use of the subject property in a manner consistent with the historical use that has occurred for an extended timeframe[,] and as recommended in the 2008 periodic reexamination report of the master plan[,] results in a seamless continuum of uses between the industrial style uses located east of the subject parcel and the uniformly single-family dwellings located to the west of the subject property.

Crimmins also included a site plan prepared by Stephen Eid, P.E. & L.S., of Eid Associates, Inc.

The application was heard by the Board at public meetings on May 19, 2010, and July 21, 2010. At the first meeting, Crimmins' attorney acknowledged that although the property had been used "for a contractor's yard with outdoor storage and a single-family home," Crimmins could not establish a "pre-existing nonconforming use" prior to "approximately 1940 when the [zoning] ordinances were put in place."

Crimmins testified he rents the single-family home located on the front part of the property to a tenant, and he uses the rear of the property to store "all types of heavy equipment" and materials for his business. He further testified he employs about ten or eleven people, and four or five of his employees go to the property at 7:30 a.m. to prepare and load the trucks and equipment before moving them to job sites. According to Crimmins, his use of the property does not create any odors, and the only noise occurs "when [they] start the trucks."

In addition, Crimmins testified his business owns lot 7, located in a commercial zone at 40 John Street across from the property. When questioned by the Board regarding the size and capacity of lot 7, Crimmins stated it is "much bigger" than the property and he could "put [all of his equipment] over there." He also testified that he could utilize the building on lot 7 for inside storage. According to Crimmins, the equipment is less visible on the property than it would be on the commercial lot across the street.

Engineer Stephen Eid prepared the original site plan for the property, as well as a revised site plan submitted to the Board prior to the public meeting on July 21, 2010. In addition, Steven Lydon, a licensed professional planner, testified on behalf of Crimmins. Lydon stated the property is unique because it is a "through lot," and the site is particularly suitable for the proposed use. Lydon testified there had been no changes to the zoning ordinances since 1981, despite suggestions in reexamination reports.

In his final remarks to the Board, Crimmins' attorney acknowledged, "This is a small lot. There's not a lot you can do on here to fit both activities on here." Nevertheless, the Board voted affirmatively to grant Crimmins' application with certain conditions by a vote of six to one.

On August 18, 2010, the Board adopted a formal resolution, which granted "a use variance for the continuation of an existing non-conforming contractor's yard." In addition, the resolution contained the following approvals:

[S]ite plan approval with checklist waivers for Section 173-45(B)(12-16), (20), and (23); a d(1) use variance for continuation of an outdoor storage yard for contractor's equipment, pursuant to Section 200-9(A); a d(1) use variance for residential and commercial use on the same lot, pursuant to Section 200-9; a variance for a fence in the front yard of six feet in height with more than 50% proposed solid, where less than 50% solid and not more than 4 feet height is allowed, pursuant to Section 103-1(c); a waiver from Section 173-48(D)(2) to allow for a gravel parking area where parking areas are required to be surfaced with asphalt; a variance for a 5.9 foot side yard on the easterly side where 15 feet is required; a variance for a 9,068 lot area where 12,500 is required; a variance for 60 foot lot width where 100 feet is required; a variance for a 14.8 foot front yard where 19.1 is required; a variance for 79.53% impervious coverage where not more than 30% is allowed; and a variance for a 1 foot parking setback in the rear, a zero foot parking setback in the east, and less than a 5 foot parking setback on the west, where a minimum of 5 feet is allowed.

In its resolution, the Board found that the property was particularly appropriate for dual uses because the "depth of the site" allowed the residential structure in the front to remain segregated from the contractor storage yard in the rear, and that "the one way nature of John Street combined with the use of William Street facilitates traffic flow for the business without significant interference with the residential properties to the West." The Board also found there would be "no substantial detriment to the public good [nor] substantial impairment to the intent and purpose of the zone plan and zoning ordinance" because "the subject site is consistent with the character of the immediate neighborhood." The resolution further stated that the proposal would "advance the goals of the Master Plan by reconciling a non-conforming use, while achieving the Plan's stated desire to maintain small business such as this, within the Borough." The notice of approval was published on August 26, 2010.

On September 27, 2010, plaintiff filed a complaint in lieu of prerogative writs naming the Board and Crimmins as defendants. Plaintiff alleged the Board's decision to grant a use variance violated the Borough's Master Plan and zoning ordinance and was "offensive to the public welfare."

Following a bench trial on April 29, 2011, the trial court rendered a written decision and entered a judgment on June 8, 2011, affirming the Board's resolution. In its decision, the court stated "the benefits of [the] application far outweigh the detriments, and the intent and purpose of the Borough's Master Plan and Zoning Ordinances are met."

On appeal, plaintiff primarily argues that Crimmins' "sole need for two mixed uses on the property is to satisfy a pecuniary interest." Plaintiff also contends Crimmins failed to satisfy the positive and negative criteria for a use variance.

When reviewing a decision by a trial court that has reviewed a decision by a municipal agency, we are bound by the same standards as the trial court. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). The scope of our review is limited. "[A] decision of a zoning board may be set aside only when it is 'arbitrary, capricious, or unreasonable.'" Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)).

Variance applications are "entrusted to the sound discretion of the municipal zoning board" because local citizens are "familiar with a community's characteristics and interests [and] are best equipped to assess the merits" of the application. Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App. Div. 2001). Nevertheless, due to the legislative preference for municipal land use planning by ordinance rather than variance, use variances may be granted only in exceptional circumstances. Nuckel v. Borough of Little Ferry Planning Bd., 208 N.J. 95, 101-02 (2011); see also Medici, supra, 107 N.J. at 5 (New Jersey public policy encourages "municipalities to make zoning decisions by ordinance rather than variance.").

To obtain a use variance, which permits a use of land that is otherwise prohibited by the zoning ordinance, the applicant must demonstrate "special reasons" for the variance. N.J.S.A. 40:55D-70(d)(1). This requirement is known as the "positive criteria." New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 6 (1999). Special reasons may be found in three circumstances:

(1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility, see Sica, supra, 127 N.J. at 159-60; (2) where the property owner would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone, see Medici, supra, 107 N.J. at 17 n.9; and (3) where the use would serve the general welfare because "the proposed site is particularly suitable for the proposed use." [Smart SMR v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998)] (quoting Medici, supra, 107 N.J. at 4, 109). [Nuckel, supra, 208 N.J. at 102 (quoting Saddle Brook Realty, L.L.C. v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 76, (App. Div. 2006).]

In addition, an applicant must satisfy the "negative criteria" of N.J.S.A. 40:55D-70(d), by "showing that such variance or other relief 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." Moreover, an applicant must demonstrate by "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. Accordingly, an applicant "must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Ibid.

With regard to the positive criteria, the Board found that the property is particularly well suited for the proposed use because it is located in a transition zone, "which contains multiple properties with similar characteristics." However, the Board did not find that the property is a more suitable location for storing construction equipment and landscaping material than the commercial lot at 40 John Street that Crimmins also owns. In addition, there is no evidence in the record to support a finding that the proposed use would promote the general welfare, or that the property is particularly suitable for the proposed use. See Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 210 (App. Div. 1999) (noting that "peculiar suitability special reasons exist where, generally, the use is one that would fill a need in the general community, where there is no other viable location, and where the property itself is particularly well fitted for the use either in terms of its location, topography or shape").

The Board also found that the negative criteria were established because the proposed use "is consistent with the Master Plan reexaminations," and there will be no "substantial impairment to the intent and purpose of the zoning plan and zoning ordinance." It is clear, however, that the proposed use conflicts with the Borough's Master Plan, its zoning ordinance, and the 2008 Reexamination, which recommended that the Borough continue "to prohibit (and strictly enforce) the overnight parking or storage of commercial vehicles on residential properties."

Based on our review of the record and the applicable law, we conclude that the Board's decision cannot be sustained because Crimmins failed to satisfy the affirmative and negative criteria embodied in N.J.S.A. 40:55D-70(d). Accordingly, the judgment of the Law Division, which affirmed the Board's decision, is reversed.


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