Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Stefansky v. Zoning Board of Adjustment of Township of Lakewood

Superior Court of New Jersey, Appellate Division

May 23, 2013

AARON STEFANSKY, Plaintiff-Appellant,
v.
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF LAKEWOOD and DAVID SEBBAG, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 5, 2013

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2975-11.

Edward F. Liston, Jr., argued the cause for appellant.

Russell P. Cherkos argued the cause for respondent Zoning Board of Adjustment of the Township of Lakewood (Dasti, Murphy, McGuckin, Ulaky, Cherkos & Connors, attorneys; Mr. Cherkos, of counsel and on the brief).

Michael B. York argued the cause for respondent David Sebbag (Novins, York & Jacobus, attorneys; Mr. York, on the brief).

Before Judges Lihotz and Kennedy.

PER CURIAM.

Plaintiff Aaron Stefansky appeals from the dismissal of his complaint in lieu of prerogative writs challenging the adoption of a resolution by defendant Zoning Board of Adjustment of the Township of Lakewood (the Board). Defendant David Sebbag filed an application for preliminary and final major site plan approval with variances to construct an addition to an existing assisted living facility. Plaintiff, who is the owner of two rental properties located within 200 feet of the proposed development, along with several members of the public, objected to the proposed development, primarily arguing the proposed use would generate significant traffic and had insufficient parking. At the conclusion of extensive public hearings, the Board approved Sebbag's application. The Law Division reviewed and rejected plaintiff's complaint alleging the Board's action was arbitrary, capricious, and unreasonable. Plaintiff renews these challenges before us on appeal. We affirm.

Sebbag owns two lots, 5 and 8, in the same Lakewood Township tax map block, situated on Madison Avenue, also known as U.S. Route 9. The property sits in a residential office park (ROP) district. Lot 8 is developed and contains the Lakewood Courtyard assisted living facility. Section 18-200 of Lakewood's Unified Development Ordinance (LUDO) defines an assisted living unit as:

A dwelling unit varying in square feet from two hundred (200) to five hundred (500) square feet that provides a residential living environment assisted by congregate meals, housekeeping and personal services, for persons fifty-five (55) years of age or older, who have temporary or periodic difficulties with one or more essential activities of daily living[.]

The LUDO conditionally permits assisted living facilities in all "non-residential zones." Lakewood Twp., N.J., Unified Dev. Ordinance § 18-1004. Despite its name, the ROP zone is a "non-residential zone."[1]

In 1996, Sebbag obtained a use variance to allow development of Lakewood Courtyard on the 77, 350 square foot (approximately 1.77 acres) Lot 8. Approvals were obtained to transform the existing hotel structure into a 140-unit assisted living facility with fifty-four parking spaces. Sebbag actually constructed ninety-one units, of which eighty included full-time nursing care.

Sebbag subsequently acquired Lot 5, adjacent to Lakewood Courtyard on Route 9. In September 2010, Sebbag filed an application with the Board, seeking permission to expand Lakewood Courtyard on to Lot 5 by developing forty dwelling units restricted to individuals at least sixty years of age and in need of assistance with the "normal activities of daily life." The application proposed to construct a residential building consisting of seven studios, twenty-eight one-bedroom apartments, four two-bedroom apartments, and one two-bedroom superintendent's apartment. The new facility would be connected to the existing facility by multiple corridors and hallways and the two facilities would share parking. The application sought preliminary and final site plan approval with use and bulk variances.

Plaintiff owns property on First Street, within 200 feet of the proposed development. He objected to Sebbag's application, contending "it [wa]s not an expansion but rather constitute[d] a new, nonconforming use in that it propose[d] to create [not an] assisted living facility but rather an age-restricted, multi-family house[]."

The Board held public hearings to review the application on four dates — April 4, May 16, June 6, and July 11, 2011. Three issues dominated the hearings: (1) whether the application sought to expand a "nonconforming use, " or to construct multi-family housing, a new, nonconforming use; (2) whether the development adversely impacted traffic flow, especially on First Street, which would now serve as the lone egress from the development; and (3) whether the proposed parking was sufficient to accommodate the proposed use.

Sebbag presented expert testimony from Brian Flannery, a licensed professional engineer and professional planner, and Scott Kennel, a traffic consultant. Flannery addressed those facts satisfying the requests for use and bulk variances. His testimony considered whether the proposed development should be treated as an expansion of a conditionally permitted use, or merely a use variance for a non-permitted use. Further, he reviewed why the proposed facility constituted an assisted living facility rather than age-restricted, multi-family housing, but explained the application satisfied all necessary criteria to obtain approval using either characterization. When asked to identify the primary relief sought, Flannery reaffirmed the application sought an expansion of an existing, nonconforming use, which was conditionally permitted, and noted a variance was needed because not all conditions were met.

As to use, Flannery cited the findings of the Township engineer, which supported the Board's November 1996 approval of Lakewood Courtyard on Lot 8. Flannery noted the Board found "a special reason exists . . . to permit the project. The project shall be an enhancement to the area and an addition of such facility is needed in the area. The project shall not be detrimental to the zone or zone plan." Flannery asserted these facts equally applied to the proposed development on Lot 5, which was an extension of Lakewood Courtyard and, in his opinion, an inherently beneficial use. Flannery concluded the proposed use represented "the least possible impact development scenario for this particular piece of property[, ]" and provided an aesthetically pleasing building while eliminating a vacant restaurant.

Flannery maintained the development satisfied each of the requirements of the LUDO's definition of "assisted living unit." The proposed facility's residents, like those in Lakewood Courtyard, would "have temporary or periodic difficulties with one or more essential activities of daily living, such as feeding, bathing, dressing, or mobility[.]" Therefore, the proposed units, like the existing ones, would include congregate meals, housekeeping, and other personal services such as transportation and recreation, all of which would be included as part of the rental. Further, the proposed units would have "emergent nursing care, " entailing onsite medical personnel to provide care on an as-needed basis, and in the event constant care was required, the resident could be relocated to the existing facility at Lakewood Courtyard.

Flannery testified as to facts supporting necessary use and bulk variances pursuant to N.J.S.A. 40:55D-70d, "depending on how you define this particular case." He discussed approval as an assisting living facility, then in the alternative, as age-restricted housing. Flannery stated the necessary variances depended upon whether the proposed facility constituted an assisted living facility or rather age-restricted, multi-family housing, and whether the Board approved the application as an expansion of a nonconforming use, a conditionally permitted use, or a use variance for a non-permitted use.

As to use, Flannery believed a variance pursuant to N.J.S.A. 40:55D-70d(3) was necessary because the application was "now asking for an expansion on [the] piece of property" in a zone that allows an assisted living facility as a conditional use. Flannery advised the application did not seek a use variance, under N.J.S.A. 40:55D-70d(1), but relief from certain conditions for a permitted conditional use or, perhaps, "an expansion of a nonconforming use" under N.J.S.A. 40:55D-70d(2).

Flannery opined the application presented an appropriate use for the property, which will "promote the public health, safety, morals and general welfare[, ]" and which "enhances the area by removing that restaurant[, ]" does not impair the zoning plan for the area, and "meet[s] the needs of a specific group of New Jersey citizens[.]" Flannery also found this location was particularly well-suited for this use because of its proximity to and compatibility with the existing facility, its location in a central area of the town, an aging Lakewood population, and its proximity and ease of access to the residents' houses of worship and families.

Addressing the LUDO's six conditions for conditional use as an assisted living facility, Flannery noted the development of Lot 5 extended the use on Lot 8 and the combined acreage met the two-acre requirement of the LUDO. The minimum lot width of 150 feet was also satisfied. A variance was necessary from compliance with fifty feet minimum setback from property lines because of a canopy overhang constructed in 1996 at the front loading area.

Flannery also addressed required parking. Although the LUDO required 0.75 parking spaces per bed, this was superseded by the Residential Site Improvement Standards (RSIS).[2] The RSIS mandated 0.5 spaces per bed, a condition met by the application. The fifth condition, requiring ten feet between the parking area and the property line, was also satisfied. Finally, the sixth condition required an opaque, artificial barrier between the parking area and the property line. The proposed development included this buffer, but would not be accompanied by five feet of separation, and therefore required a variance.

Flannery also explained a density variance, per N.J.S.A. 40:55D-70d(5), would not be needed for an assisted living facility, which had no density limitations. However, if the Board agreed with plaintiff that the development must satisfy the LUDO requirements for multi-family housing, then the variance was needed because the maximum permitted density in the ROP zone was fifteen units per acre, whereas the proposed use was 130 units over 2.26 acres.

A height variance was also needed to permit "a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure." N.J.S.A. 40:55D-70d(6). The proposed facility would be forty-four feet tall. Buildings in the ROP zone are limited to thirty-five feet, except multi-family buildings, which may be sixty-five feet high.

Flannery also noted the design regulations for the ROP zone permitted a maximum building coverage of twenty-five percent, but the development proposed forty percent because of the necessary indoor space to accommodate the services provided to residents.[3]

Elaborating on the question of the sufficiency of parking spaces at the proposed facility, a concern of several objectors, Flannery maintained if the development must meet RSIS mandates for age-restricted, multi-family housing, requiring 0.8 parking spaces per unit, seventy-three or seventy-four total parking spaces were necessary. Flannery believed the development's proposed fifteen additional parking spots, when added to the existing but under-utilized parking spaces at Lakewood Courtyard, met this requirement.

The most significant concern expressed by adjacent property owners was increased traffic. Flannery generally deferred to Kennel on these matters, but explained the New Jersey Department of Transportation (DOT) would not allow an exit onto Route 9 from the proposed development, [4] despite the existence of an exit at the original facility. Consequently, the lone exit for the site would be on First Street, which had very poor traffic conditions during an approximately forty-five minute period when a nearby Yeshiva released its students at 2:00 p.m. Flannery opined the proposal offered a significant decrease in possible traffic compared to what could occur were the existing fast-food restaurant to continue operations on Lot 5. Overall, he suggested the proposed development presented a better option than the permitted use of a restaurant.

Kennel had undertaken a traffic study and explained initially that improvements to Route 9 - in particular, repainting to create two lanes of traffic in each direction – would lessen and reduce delays for vehicles turning onto Route 9 from First Street. Acknowledging the mid-afternoon congestion on First Street, Kennel stated the peak traffic activity generated by the development would not occur until after the discharge of students from the nearby Yeshiva. He opined the proposed plan offered safer access and safer conditions along the Route 9 corridor, as required by State Highway Access Code standards.

Kennel used the Transportation Institute Trip Generation Manual to compute the traffic impact of the proposed development. His study found "the proposed use has a traffic generation [rate] of approximately ten percent of what could be generated with [L]ot [5] reoccupied as a fast food restaurant. So this use is significantly less, from a traffic generation standpoint and impacts on the area roadways." He concluded "the proposed plan as it relates to access improves the safety of ingress and egress to the site[, ]" "generates significantly less traffic than the preexisting use, " and "the parking supply is more than adequate to serve the 131 living units proposed on the development."

Kennel also confirmed Flannery's observations regarding facility parking. On average, between ten and fifteen vehicles used the existing parking spots located at Lakewood Courtyard. Even during holiday events, no more than twenty vehicles were observed in the lot. Acknowledging Lakewood Courtyard was not at full capacity, Kennel found the proposed facility's sixty-six total parking spaces would be "more than adequate" to support the proposed use and accommodate all vehicles, even if the existing facility were at full capacity.

Plaintiff objected to the development, insisting the application proposed construction of an age-restricted apartment building, not assisted living units. Also, he felt the size of the units suggested the need for more parking and believed the shortage would encourage inappropriate use of his parking lot. Plaintiff also argued the development would increase traffic congestion on First Street, a concern also expressed by other citizens in attendance at the hearing. He supported his claims with photographs of the early afternoon traffic on First Street.

Next, Thomas A. Thomas, professional planner, testified that the proposed development was not simply the expansion of an existing, conditional use, but, rather, constituted a non-permitted use – age restricted housing. He based this conclusion upon the lack of licensing, the size of the individual units, and the small size of the total development, Thomas asserted the application sought construction of a new, separate use for age-restricted housing. Thomas asserted seventy-four parking spaces were required for such a development. He also argued there was no evidence justifying a use variance, and maintained the proposal would harm the public good, violate the intent and purpose of the zone plan and ordinance, and cause additional traffic problems. Thomas also challenged Sebbag's claim of hardship offered to justify the requested height variance.

Even though Thomas conceded expansion of the existing assisted living facility at the particular location would justify granting a use variance, he opined the proposed use was not assisted living. To support this position, he explained the size of proposed units exceeded the square footage requirement defined in the LUPO for assisted living units, and the number of units proposed was smaller than expected for an assisted living facility, when compared with existing assisted living facilities.

When asked whether he agreed with Flannery's opinion that the proposal would not result in any substantial detriment to the land use plan and zoning ordinance, Thomas replied: "The only point that I would point out again has to do with the parking issue, whether it's assisted living or whether it's apartments. If it's apartments, then obviously there may be [a] deficiency in parking, and I think that's basically correct." Regarding proposed parking availability, Thomas argued the application did not satisfy that necessary for age-restricted, multi-family housing. On cross-examination, however, he acknowledged Kennel correctly noted Lakewood Courtyard underutilized its existing parking spaces and conceded the proposed parking would be sufficient if the development was characterized as an assisted living facility.

Thomas also agreed with Kennel's comparison of the estimated trips likely to be generated by the proposed facility versus a use similar to the preexisting drive-through restaurant, but noted the traffic from the restaurant would largely flow to Route 9 rather than First Street. Finally, he agreed N.J.A.C. 5:21-4.14 permitted approval of an application if an applicant demonstrates standards that although not exactly conforming to the RSIS, nevertheless better reflect local conditions. He maintained the application failed in this regard.

The Board unanimously voted to approve the application for preliminary and final major site plan approvals and the requested variances. The resolution memorializing the Board's decision extensively detailed the testimony presented to the Board, along with the Board's findings of fact and conclusions of law, approving the development both as an expansion of an existing conditional use and, in the alternative, as qualifying for a use variance as a non-permitted use. The memorializing resolution provided:

47. The Board finds from the testimony that the application constitutes a request to expand an existing facility. The facility may be located on a different property; however, the proposed completed structure and use complex to be created pursuant to this application will constitute one facility with a continuation of the uses and an expansion of the uses previously located in the older facility.
48. The Board finds that the parking will be sufficient for the site based upon the testimony of the applicant's planner and traffic consultant. The Board finds the testimony of those individuals to be credible and highly respects the professional credentials which they offer.
49. The Board finds that, in the alternative, in the event that a [c]ourt of law should determine that this proposal does not constitute an expansion of an existing assisted living facility[, ] that the applicant has demonstrated the existence of special reasons as permitted pursuant to the land use law. Those special reasons include the need for the facility in the area and the fact that this property is particularly suited due to its location in downtown Lakewood and immediately adjacent to the existing assisted living facility. The Board further finds based upon the testimony of the applicant's professionals that there will be no substantial detriment to the intent and purpose of the land use plan and zoning ordinance.
50. The application is approved subject to the applicant complying with all terms and provisions of the Board Engineer's review letter and all representations contained on the record, including those requiring modification of the originally submitted plans.
51. The application is further approved subject to the applicant paying all taxes, application and escrow fees associated with the property and with the project and obtaining such outside agency approvals as are required by law.

Plaintiff's complaint, filed with the Law Division, sought to reverse the Board's approval, maintaining it was arbitrary, capricious, and unreasonable because: it improperly treated the application as one for an expansion of a nonconforming use; Sebbag failed to satisfy the positive and negative criteria; and the resolution, with regard to the setback and height variances, failed to set forth appropriate findings of fact and conclusions of law, as required by N.J.S.A. 40:55D-10.

In a written opinion, the judge agreed with plaintiff, finding the Board acted unreasonably in approving Sebbag's application as an expansion of the existing nonconforming use of Lakewood Courtyard because the existing use and proposed use were meaningfully different. Instead, the judge concluded the development constituted age-restricted apartments, and not assisted living units. Applying the more restrictive standards applicable for the issuance of a use variance for a new use, the judge rejected plaintiff's argument that the Board's findings failed to support its conclusion. The judge found special reasons to support the requested use, including the "apparent compatibility and integration" with Lakewood Courtyard and that potential residents would not need to relocate if in need of full-time medical services, but instead could remain within the complex.

With respect to the negative criteria, the judge rejected the challenge to the Board's acceptance of the expert's testimony regarding traffic and parking. Finally, he found the evidence supported grant of the bulk variances.

On appeal, plaintiff argues the trial judge erred in concluding the Board's findings support its conclusion to grant a use variance. Plaintiff contends Sebbag failed to satisfy the negative criteria, making the Board's approval of the development arbitrary and capricious.

Judicial review of a zoning board's decision is limited. Ocean Cnty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J.Super. 514, 521 (App. Div.), certif. denied, 175 N.J. 75 (2002). Because of their peculiar knowledge of local conditions, zoning boards must be allowed wide latitude in the exercise of delegated discretion, including the authority to grant or deny applications for a variance. Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005) (citing Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965)). Generally, a board's determination is deemed "'presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable.'" Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998) (quoting Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 166-67 (1992)).

Insofar as a zoning decision involves individualized factfinding, a reviewing court considers whether the decision is supported by sufficient, credible evidence in the record. Powerhouse Arts Dist. Neighborhood Ass'n v. City Council of Jersey City, 413 N.J.Super. 322, 332 (App. Div. 2010), certif. denied, 205 N.J. 79 (2011). Further, when a board has accepted or rejected the testimony of witnesses, assessing credibility, such a decision is conclusive on appeal, if reasonably made. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J.Super. 389, 434, (App. Div. 2009) (citations omitted). The court must not substitute its judgment for that of the board. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J.Super. 552, 561 (App. Div. 2004) (citations omitted).

This court applies the same standard of review as the trial court. N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J.Super. 319, 331 (App. Div. 2004) (citing Charlie Brown of Chatham, Inc. v. Bd. of Adjustment for Chatham, 202 N.J.Super. 312, 321 (App. Div. 1985)). Consequently, a challenger must demonstrate the decision was unsupported by sufficient or substantial evidence in the record or that legal error occurred. Powerhouse Arts, supra, 413 N.J.Super. at 332 (citations omitted); N.Y. SMSA L.P. v. Bd. of Adjustment of Bernards, 324 N.J.Super. 149, 163-64 (App. Div.), certif. denied, 162 N.J. 488 (1999).

On appeal, plaintiff first challenges the Board's approval of Sebbag's development and grant of a variance allowing an expansion of a pre-existing, nonconforming use. Although Sebbag's proposal requested an expansion of a pre-existing, nonconforming use or a variance for a conditional use within the ROP zone because the development could not satisfy all of the conditions, he alternatively presented a request for approval of a traditional use variance. Because we conclude, as did the trial judge, that the Board's approval of the use variance is supported by sufficient, credible evidence satisfying the statutory criteria, we need not address this issue, confining our opinion to plaintiff's second challenge, which centers on the grant of a variance allowing a new use, pursuant to N.J.S.A. 40:55D-70d(1).

In approving Sebbag's application, the Board found "the applicant has demonstrated the existence of special reasons as permitted pursuant to the land use law . . . [and] further . . . that there will be no substantial detriment to the intent and purpose of the land use plan and zoning ordinance." Plaintiff argues "the Board's decision . . . must be deemed arbitrary, capricious and unreasonable, and reversed" because the application did "not satisfy the statutory criteria for a use variance pursuant to N.J.S.A. 40:55D-70[d](1)." We disagree.

It is well-settled that, in order to obtain a variance pursuant to N.J.S.A. 40:55D-70d, an applicant must demonstrate both the "positive" and "negative" criteria as outlined in the statute.[5] Sica, supra, 127 N.J. at 164. See also Salt & Light Co. v. Willingboro Twp. Zoning Bd. of Adjustment, 423 N.J.Super. 282, 287 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012); Kane Props., L.L.C. v. City of Hoboken, 423 N.J.Super. 49, 62 (App. Div. 2011), certif. granted, 209 N.J. 597 (2012).

Demonstration of the positive criteria requires a party seeking a variance to prove the "special reasons" for granting the variance. Sica, supra, 127 N.J. at 156. "Generally, to satisfy the positive criteria, an applicant must prove that 'the use promotes the general welfare because the proposed site is particularly suitable for the proposed use.'" Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment of Leonia, 360 N.J.Super. 373, 384 (App. Div. 2003) (quoting Medici v. BPR Co., 107 N.J. 1, 4 (1987)). Satisfaction of "the negative criteria require[s] proof that the variance will not cause 'substantial detriment' or 'impair the intent and the purpose of the zone plan.'" Ibid. (quoting N.J.S.A. 40:55D-70d).

Special reasons considered by a board must promote the general purposes of zoning law. Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 386 (1990); Medici, supra, 107 N.J. at 10, 18. Special reasons for a new use generally fall into one of three categories: (1) undue hardship because the property cannot reasonably be adapted to a conforming use; (2) inherently beneficial uses, which fulfill a significant or necessary public purpose and therefore promote the general welfare; and (3) uses which are particularly suited for the site. Stop & Shop Supermarket Co. v. Bd. of Adjustment of Springfield, 162 N.J. 418, 430-31 (2000) (citations omitted). Here, the Board and the trial judge focused on the third category, concluding the proposed use promoted the general welfare because the site was particularly suited for the proposed development. Medici, supra, 107 N.J. at 4.

To demonstrate the property is particularly suited for the proposed use, an applicant must show a need for the use at that particular location. See New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999). Peculiar suitability may exist where "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." Funeral Home Mgmt., Inc. v. Basralian, 319 N.J.Super. 200, 210 (App. Div. 1999).

Once an applicant satisfies the positive criteria, demonstrating special reasons for the proposed development at the specific site, he or she must additionally satisfy the statute's negative criteria prong, "showing that such variance or other relief can be granted without substantial detriment to the public good" and the development "will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70d. All use variance applicants must satisfy this prong. Kinderkamack Rd. Assocs., LLC v. Mayor and Council of Oradell, 421 N.J.Super. 8, 13 (App. Div. 2011) (citing Medici, supra, 107 N.J. at 22 n.12).

The first inquiry requires examination of the effect of a variance on surrounding properties; if the harm is not substantial, the variance may be granted. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 83-84 (2002) (citations omitted); Medici, supra, 107 N.J. at 22 n.12. With respect to this prong,

[t]he key word here is "substantially." It comes from the statute itself. . . . But the statutory rationale of the function of the board of adjustment is that its determinations that there are special reasons for a grant of variance and no substantial detriment to the public good or impairment of the zone plan, etc., in such grant represent a discretionary weighing function by the board wherein the zoning benefits from the variance are balanced against the zoning harms. If on adequate proofs the board without arbitrariness concludes that the harms, if any, are not substantial, and impliedly determines that the benefits preponderate, the variance stands.
[Medici, supra, 107 N.J. at 22-23 n.12 (quoting Yahnel v. Bd. of Adjustment of Jamesburg, 79 N.J.Super. 509, 519 (App. Div.), certif. denied, 41 N.J. 116 (1963)).]

The second inquiry requires "clear and specific findings by the board of adjustment that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Id. at 21. The applicant's proofs and a board's specific findings "must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Ibid. "The nature of the proofs offered to achieve reconciliation of the proposed variance with the zoning ordinance will depend on the circumstances of each case." Id. at 21 n.11.

Plaintiff's arguments do not attack the trial court's conclusion that the Board reasonably found Sebbag's evidence fulfilled the positive criteria, as the proposed use served the general welfare. See Jayber, Inc. v. Mun. Council of W. Orange, 238 N.J.Super. 165, 174-75 (App. Div.) ("We are of the view that the use proposed here both advances the senior citizen housing purpose of N.J.S.A. 40:55D-2(l) and is also, beyond debate, an inherently beneficial use in that it promotes the general welfare."), certif. denied, 122 N.J. 142 (1990). The evidence supports the finding that special reasons exist warranting the grant of a use variance, which included (1) the need for the proposed specialized facility in the area to address an anticipated expanding aging population; (2) the fact that the property was particularly suited for the purpose because it was adjacent to Lakewood Courtyard, offering compatibility and integration with the assisted living facility; and (3) the site was central to access stores, houses of worship, and medical and other service providers in downtown Lakewood.

We conclude the Board's findings were supported by sufficient, credible evidence satisfying the positive criteria. See New Brunswick Cellular, supra, 160 N.J. at 14; Funeral Home Mgmt., Inc., supra, 319 N.J.Super. at 210.

Turning to plaintiff's arguments that the record did not support the Board's findings pertaining to the negative criteria, we note the Board carefully considered the claim that the proposed development would increase traffic congestion on First Street and had insufficient parking. The Board accepted as credible the traffic and parking analyses offered by Sebbag's experts, Flannery and Kennel. Plaintiff's expert Thomas could not dispute that Lakewood Courtyard had an abundance of unused parking spaces, making the combined sixty-five existing and proposed additional parking spots more than sufficient for the intended use.

Similarly, Kennel's unrefuted traffic study, with which Thomas concurred, showed minimal increase in mid-afternoon traffic congestion at the conclusion of the Yeshiva's day. Also unrefuted was Kennel's opinion that the use presented far less traffic than experienced during operation of the former fast-food restaurant. Weighing all evidence, the Board concluded Sebbag's experts were credible and, although generating some additional traffic, the impact of the proposed use was not substantial.

Following our review, we conclude plaintiff has identified no errors in the factual findings relied upon by the Board. See Bd. of Educ. of Clifton, supra, 409 N.J.Super. At 434. Plaintiff's generalized challenge to the evidence is unpersuasive. Accordingly, we will not disturb the Board's fully supported findings that the proposed use presented minimal impact on the neighborhood and was compatible with the zoning plan and ordinance.

Affirmed.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.