October 21, 2013
CARECYCLE, INC., Plaintiff-Appellant,
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF NORTH BRUNSWICK, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5788-11.
Vastola, Fackelman & Sullivan, attorneys for appellant (John J. Sullivan, Jr., on the brief).
Hoagland, Longo, Moran, Dunst & Doukas, L.L.P., attorneys for respondent (Karl P. Kemm, of counsel and on the brief).
Before Judges Fisher and Espinosa.
Plaintiff Carecycle, Inc. appeals the dismissal of its complaint in lieu of prerogative writs. The controversy originated with the North Brunswick Zoning Board of Adjustment, which, after a public hearing, denied Carecycle's claim that it was entitled to a certificate of nonconformity so that it might continue locating clothing recycling bins at the Renaissance Square Mall.
After the Board upheld the zoning officer's denial of the certificate by way of a written resolution, Carecycle filed its complaint in lieu of prerogative writs. Judge James P. Hurley considered the parties' written submissions, heard the argument of counsel, and dismissed Carecycle's complaint for reasons set forth in an oral decision later supplemented by a written opinion.
The judge noted that, pursuant to recent legislative enactments regarding clothing bins,  North Brunswick had adopted an ordinance governing the placement and use of charitable clothing bins. Its ordinance provides that "[c]haritable clothing bins may only be placed, used or employed in the C-2 General Commercial District" and "may not be placed, used or employed in any other zone districts within" North Brunswick. The Renaissance Square Mall is located in the PUD-II zone, not the C-2 zone.
Judge Hurley accurately explained the thrust of Carecycle's argument in the following way:
The plaintiff here contends that the use of charitable donation bins are a permitted accessory use in the PUD-II zone because accessory uses permitted in the C-2 zone are permitted accessory uses in the PUD-II zone but the section of [the ordinance] relied upon by the plaintiff allows the bins as accessory uses but only in the C-2 zone [The ordinance] clearly provides that "[c]haritable clothing bins may only be placed used or employed in the C-2 [G]eneral Commercial District Charitable clothing bins may not be placed used or employed in any other zone districts within the Township of North Brunswick." Shopping centers are a permitted use in the PUD-II zone and are also a permitted use in the C-2 zone Plaintiff therefore concludes that because charitable donation bins are a permitted accessory use in the C-2 zone that they are a permitted accessory use in the PUD-II zone as accessory to a shopping center use
In his oral and written opinion Judge Hurley recognized that the fallacy in this circular argument is that Carecycle "fails to recognize that permitting the use as an accessory use in the C-2 zone is subject to the restriction that they may only be placed in the C-2 zone" For this and other reasons the judge found that Carecycle's contentions lacked merit and that Carecycle had otherwise failed to sustain its burden in this prerogative writ matter
We affirm substantially for the reasons set forth in Judge Hurley's thorough and well-reasoned decision