July 2, 2013
THE SALT & LIGHT COMPANY, INC., Plaintiff-Appellant,
TOWNSHIP OF WILLINGBORO ZONING BOARD OF ADJUSTMENT, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 14, 2013.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3090-10.
Patrick F. McAndrew argued the cause for appellant.
Matthew B. Wieliczko argued the cause for respondent (Zeller & Wieliczko, LLP, attorneys; Mr. Wieliczko, on the brief; Deena M. Greble, on the brief).
Before Judges Fisher and St. John.
Plaintiff the Salt & Light Company appeals from the August 29, 2012 order of the Law Division granting defendant's motion for reconsideration and denying plaintiff's motion for summary judgment.
I. The record discloses the following facts and procedural history.
In a neighborhood that was zoned for single-family homes, plaintiff wished to convert a residence to a three-family unit in order to provide transitional housing for the formerly homeless. The original residence, which was already being used for transitional housing, contained five bedrooms and one kitchen. The proposed conversion would contain three kitchens, but only four bedrooms. The exterior of the structure would remain intact with only minor variations. Plaintiff expected roughly the same number of inhabitants to occupy the dwelling after the conversion.
Plaintiff applied to the Willingboro Township Zoning Board of Adjustment (defendant) for a use variance, a site plan waiver, and a parking variance which would permit four parking spaces instead of six.
Defendant held a hearing and members of the community expressed that granting the application would negatively affect the neighborhood. Defendant denied the use variance. Plaintiff filed a complaint in lieu of prerogative writ.
The court reversed defendant's denial of the use variance and remanded for a determination regarding the parking variance and the site plan waiver.
On remand, defendant denied the application for the parking variance and the site plan waiver. In the meantime, we decided
Salt & Light Co., Inc., v. Willingboro Township Zoning Board of Adjustment , 423 N.J.Super. 282 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012) (Salt & Light), wherein the same parties litigated the conversion of a single-family residence into a two-family home. We upheld defendant's determination that the inherently beneficial use of providing transitional housing was outweighed by the detrimental effect of constructing a two-family home in an area zoned exclusively for single-family residences. Id . at 291. In light of our decision, defendant moved for reconsideration of the court's prior order reversing the denial of the use variance.
Plaintiff filed a cross-motion to uphold the granting of the use variance and to reverse defendant's denial of the site plan waiver and parking variance. Judge Ronald E. Bookbinder granted defendant's motion for reconsideration and reversed the prior order granting the use variance. The judge also denied plaintiff's motion for summary judgment and affirmed defendant's denial of the parking variance and the site waiver.
On appeal, plaintiff argues that the court erred by relying on Salt & Light because that case wrongly applied the four-step test enunciated in
Sica v. Bd. of Adjustment, 127 N.J. 152, 159 (1992).
We note first, the decision of a zoning board of adjustment is subject to limited judicial review.
Smart SMR v. Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998). Such a decision is "presumptively valid" in light of the "recognition that such boards possess special knowledge of local conditions and must be accorded wide latitude in the exercise of their discretion." Sica, supra, 127 N.J. at 166-67. "[C]ourts will defer to a [board] decision if it is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Smart, supra, 152 N.J. at 327. "A Court will not substitute its judgment for that of a board 'even when it is doubtful about the wisdom of the action.'"
Cell S. of N.J. v. Zoning Bd. of Adj., 172 N.J. 75, 81 (2002) (quoting
Cellular Tel. Co. v. Zoning Bd. of Adj. of the Borough of Harrington Park , 90 F.Supp.2d 557, 563 (D.N.J. 2000)). Because a board of adjustment's actions are presumed valid, the party "attacking such action [has] the burden of proving otherwise." Id . at 82 (quoting
N.Y. SMSA Ltd. P'ship v. Bd. of Adj. , 324 N.J.Super. 149, 163 (App. Div.), certif. denied, 162 N.J. 488 (1999)).
N.J.S.A. 40:55D-70 provides:
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without 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.
In order to determine whether a variance would result in a substantial detriment to the public good, Sica requires a four-part test: identifying the public interest at stake; determining the detrimental effect that will ensue from the grant of the variance; in certain cases, reducing the detrimental effect by imposing reasonable conditions on the use; and weighing the positive and negative criteria to determine if on balance the grant of the variance would cause a substantial detriment to the public good. Sica, supra, 127 N.J. at 165-66. In Salt & Light, we determined that the inherently beneficial use of providing housing for the homeless was outweighed by the substantial detriment of placing a multi-family home in a neighborhood that was zoned for single-family residences. Salt & Light, supra, 423 N.J.Super. at 292.
On appeal, plaintiff argues that defendant failed to meet its burden under Sica because the proposed tri-plex conversion is inherently beneficial, the exterior appearance of the home will be maintained, and the number of people housed will remain constant. Thus, according to plaintiff, there is no detriment sufficiently substantial to justify denying the variance. Plaintiff believes that Salt & Light was wrongly decided because it incorrectly applied the four-part analysis in Sica.
We disagree because Salt & Light was decided in keeping with Sica, as well as with N.J.S.A. 40:55D-70 which provides that a variance even for an inherently beneficial use must not be granted if it will substantially impair the intent and the purpose of the zoning plan. Here, conversion of a single-family property to a three-family residence would substantially impair the zoning plan which was intended for single-family homes. Plaintiff also appeals the denial of the site plan waiver and the parking variance, which issues are moot in light of our determination.
In reversing the grant of the use variance the judge properly relied on our reasoning in Salt & Light and we see no reason to disturb his conclusions. We affirm.