December 31, 2013
HOUSE OF FIRE CHRISTIAN CHURCH, Plaintiff-Respondent,
ZONING BOARD OF ADJUSTMENT OF THE CITY OF CLIFTON and THE CITY OF CLIFTON, Defendants-Respondents, and LIVIA PEPPER, Intervenor-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-6003-02.
Carlet, Garrison, Klein & Zaretsky, L.L.P., attorneys for appellant Livia Pepper (Frank A. Carlet, on the brief).
Finazzo, Cossolini, O'Leary, Meola & Hager, LLC, attorneys for respondent House of Fire Christian Church (Robert J. Pansulla, on the brief).
Before Harris, Kennedy, and Guadagno Judges.
Intervenor Livia Pepper appeals from the Law Division's July 6, 2011 order that reversed the Clifton Board of Adjustment's denial of plaintiff House of Fire Christian Church's land use application for a house of worship in a residential zoning district. We affirm.
The Church owns real property on Grove Street in Clifton, which it acquired in 2001. The land is located in Clifton's R-A1 Single Family Residential Zone, which permits a house of worship as a conditional use. See House of Fire Christian Church v. Zoning Bd. of Adj. of Clifton (House of Fire I), 379 N.J.Super. 526, 531 (App. Div. 2005).
The Church sought to demolish the existing single-family residence on the property and construct a new church facility in its place. To accomplish this goal, the Church needed municipal and county site plan approval, and at least two conditional use variances for:
(1) minimum lot size (the zone requires a minimum of 20, 000 square feet, but the Church's lot is only 17, 325 square feet);
(2) minimum lot width (the zone requires a minimum lot width of 100 feet, but the Church's lot is only seventy feet wide).
"[T]he Church chose to bifurcate the application process by first applying for conditional use variances from the Board of Adjustment. Once the variances were granted, the Church planned to seek site plan approval from the Planning Board." House of Fire I, supra, 379 N.J.Super. at 540. We determined that "this bifurcation caused considerable confusion, " which was an important reason that we affirmed the Law Division's 2003 remand to consolidate the application for conditional use variances and site plan approval. Ibid. Our goal was to ensure that "all of the related issues pertaining to plaintiff's application will be addressed and resolved by the Board [of Adjustment] at the same time." Id. at 540-541.
After we ordered the remand, the Church returned to the Board of Adjustment for four hearings that were conducted between May and November 2008. On November 19, 2008, the Board of Adjustment adopted a resolution —— relying upon Sica v. Board of Adjustment of Township of Wall, 127 N.J. 152 (1992) (setting forth standards to analyze N.J.S.A. 40:55D-70(d)(1) use variance applications of inherently beneficial uses) —— that denied the Church's application. The Board of Adjustment's rationale was that the Church
did not sustain the burden of proof; that the negative criteria is not satisfied to support the grant of the conditional use variance[s]; that if the variance[s] were to be granted, the location of the church in the middle of one-family dwellings would change the entire character of the neighborhood; that building orientation, ingress and egress, traffic congestion, traffic flow, inadequate parking lot will create detriments to the neighborhood and will not be in accord with the intent and purpose of the master plan and the zone ordinance which continues to zone the premises as a one-family dwelling.
On the renewed appeal to the Law Division, the trial court criticized the Board of Adjustment's heavy reliance upon Sica, finding that such analysis "was erroneous, and it may have led the Board to apply more stringent standards in evaluating plaintiff's application." Instead, the court held that the application was required to be analyzed under the much-more-forgiving standard of Coventry Square, Inc. v. Westwood Zoning Board of Adjustment, 138 N.J. 285, 299 (1994) (recognizing that for N.J.S.A. 40:55D-70(d)(3) conditional use variances, the focus for a board of adjustment is one of evaluating "the specific project at the designated site" to determine whether granting relief from one or more of the conditions can be reconciled with the governing body's imposition of the condition in the zone). Accordingly, while retaining jurisdiction, the trial court remanded the matter to the Board of Adjustment "to apply the correct standard of review" so that eventually the Law Division could "adequately conduct [its] review and passing upon the merits of the Board [of Adjustment]'s decision."
In the second remand, the Board of Adjustment again denied the Church's application. The Board of Adjustment's memorializing resolution identified several supposed detriments that would have "a negative impact upon the adjacent properties and will cause such damage to the character of the neighborhood so as to constitute substantial detriment to the public good." These detriments included problems with emergency services access; unsafe parking lot design; dangerous vehicle maneuvers and excess traffic; inadequate "site circulation"; inadequate "sight distance"; insufficient driveway distance from intersecting street; substandard parking supply; inadequate storm water management facilities; and inappropriate "location of the building adjacent to neighbor's backyards."
A different judge conducted the trial when the dispute returned to the Law Division. On June 3, 2011, after carefully canvassing the record and all of the issues in dispute, the trial judge concluded that although the Board of Adjustment's identification of planning issues enjoyed "an evidentiary basis" in the record, "[t]he consequences of the findings, however, . . . are considerably lacking." Specifically, the judge concluded that the number of parking spaces was "a de minimis departure from the requirement." Although the judge noted legitimate concerns with the size of some parking spaces, which could have "some impact on the neighborhood in terms of if there's not enough parking spaces people will have to park on the street, " the judge similarly characterized the inconvenience as de minimis —— particularly in view of the modest size of the Church's congregation and "the projected number of persons that are going to be attending the service on those few times when they're actually held." The judge further noted that the Board of Adjustment's concern about the internal geometry and operation of the parking lot was an "internal problem, internal to the site and the people that will be using the site, and would not impact on the neighborhood."
The judge discounted the significance of the distance from the intersection to the Church's driveway and any purported problems with sight distances, concluding that these were a "[c]ounty road concern . . . subject to approval of the [Passaic] County Planning Board" and it was not "appropriate to consider that in a denial of [the Church's] application." The judge stated that the application's approval could be made contingent to the County Planning Board's approval. Regardless, in dismissing the Board of Adjustment's concerns, the judge highlighted that the "same physical problems, the site line measuring point would be common problems if it was a single-family house or a house of worship."
In analyzing the emergency services access issue, the trial judge noted that the record evidence contained contradictory letter-opinions from the City of Clifton Fire Department. The judge was "very troubled" by the letters because
[t]here was no testimony by the author of these letters, same person, before the Board. And I think the conflicting nature of them and the fact that the Board seemed to accept the[m] uncritically, I didn't see in the transcript anybody questioning as to why it was okay one time and not okay another time. I didn't see any questions —— well, the author was not present to answer questions as to why there was a change or why it would be more difficult to get to the rear of this building rather than to the rear of a one-family house, or other questions that could be posed. And it's troubling that this is accepted in an uncritical fashion by the [Zoning] Board, and utilized as a serious problem for their [denying] of the variances.
In ultimately rejecting the Board of Adjustment's inexplicable selection of one opinion over the other, the judge found that there was nothing "in the record that substantiates the reliance that [the Board of Adjustment] plac[ed] on these letters."
Ultimately, the Law Division concluded that the Board of Adjustment failed to provide record support for the alleged parking, lot dimension, and safety deficiencies. Consequently, the application's denial, which was based upon a conclusion that the house of worship created a substantial detriment to the public good, was improper. After reviewing the evidence, the judge "conclude[d] that a reasonable fact finder could not say that these variances could be granted and create a substantial detriment to the public good." Because the Church's application sought merely to establish and operate a permitted (albeit conditional) use, and the perceived detriments were not substantial —— the judge repeatedly calling them de minimis —— the judge declared that the "application should be approved." A memorializing order was entered to that effect on July 6, 2011. Following the disposition of the several remaining issues between the Church and the public entity defendants, this appeal followed.
An appellate court reviewing a judgment in an action in lieu of prerogative writs under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, applies the same standard as the trial court. CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd./Bd. of Adj., 414 N.J.Super. 563, 577 (App. Div. 2010). Thus, our task on appeal is cabined by the substantial evidence standard. See Bressman v. Gash, 131 N.J. 517, 529 (1993) (holding that appellate courts are bound by the same scope of review as the Law Division and should defer to the local land-use agency's broad discretion). Also, "we look at the law with fresh eyes and need pay no deference to legal conclusions reached by the trial court." Fair Share Hous. Ctr., Inc. v. N.J. State League of Municipalities, 207 N.J. 489, 493 n.1 (2011).
A decision of a zoning board may be set aside only if "the challenging party . . . show[s] that the zoning board's decision was 'arbitrary, capricious, or unreasonable.'" Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adj., 45 N.J. 268, 296 (1965)). "[P]ublic bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adj. of Wall, 184 N.J. 562, 597 (2005). Therefore, "[t]he proper scope of judicial review is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Ibid. In this case, notwithstanding our limited scope of review, we conclude that the arguments presented in support of the Church's challenge to the Board of Adjustment's decision are compelling.
An application for a (d)(1) variance seeks permission from a board of adjustment to put property to a use that is otherwise prohibited by the zoning ordinance. Both the positive and negative criteria in such an application are tested in accordance with the standards established in Medici v. BPR Co., 107 N.J. 1, 4 (1987), and its progeny. In contrast, a conditional use, by definition, is a use that the zoning ordinance permits only if the applicant meets all of the conditions that are embodied in the ordinance. However, if a property owner seeking to devote the property to a conditional use cannot meet one or more of the conditions imposed by the zoning ordinance, the property owner must apply for a (d)(3) conditional use variance. "The inability to comply with one or more of the conditions does not convert the use into a prohibited one and, thus, the application is not tested in accordance with the standards established in Medici that govern applications for a (d)(1) use variance." TSI E. Brunswick, LLC v. Zoning Bd. of Adj. of E. Brunswick, 215 N.J. 26, 43 (2013).
In order to obtain a conditional use variance pursuant to N.J.S.A. 40:55D-70(d)(3), an applicant also must satisfy both positive and negative criteria. The standard fixed by the New Jersey Supreme Court for the positive criteria is the following:
[T]he proof of special reasons that must be adduced by an applicant for a "d" variance from one or more conditions imposed by ordinance in respect of a conditional use shall be proof sufficient to satisfy the board of adjustment that the site proposed for the conditional use, in the context of the applicant's proposed site plan, continues to be an appropriate site for the conditional use notwithstanding the deviations from one or more conditions imposed by the ordinance. That standard of proof will focus both the applicant's and the board's attention on the specific deviation from conditions imposed by the ordinance, and will permit the board to find special reasons to support the variance only if it is persuaded that the non-compliance with conditions does not affect the suitability of the site for the conditional use. Thus, a conditional-use variance applicant must show that the site will accommodate the problems associated with the use even though the proposal does not comply with the conditions the ordinance established to address those problems.
[Coventry Square, supra, 138 N.J. at 298-99.]
With respect to the negative criteria, the Court has stated:
In addressing the proofs required for the negative criteria, this Court described the applicable test as being "similar" to the standard to be applied to the positive criteria. [Coventry Square, supra, 138 N.J.] at 299. We explained that "the focus [of the first prong] is . . . the effect on surrounding properties of the grant of the variance for the specific deviations from the conditions imposed by ordinance." Ibid. Elaborating on the test, we commented that "[t]he board of adjustment must evaluate the impact of the proposed [conditional] use variance upon the adjacent properties and determine whether or not it will cause such damage to the character of the neighborhood as to constitute 'substantial detriment to the public good.'" Ibid. (quoting Medici, supra, 107 N.J. at 22 n.12).
Specifically as it relates to the second prong of the negative criteria, we held that "the board of adjustment must be satisfied that the grant of the conditional-use variance for the specific project at the designated site is reconcilable with the municipality's legislative determination that the condition should be imposed on all conditional uses in that zoning district." Ibid.
[TSI E. Brunswick, LLC, supra, 215 N.J. at 41-42.]
With these principles in mind, we turn to the evidential record considered by the Board of Adjustment, and its conclusions derived therefrom. The Church's application meets all of Clifton's zoning standards except for minimum lot size and width. These deficiencies do not compromise the development plan because the identified detriments and impact upon the surrounding properties and neighborhood are insubstantial. Moreover, any perceived effect upon the movement of traffic and safety along Grove Street is the planning concern of the Passaic County Planning Board, not the Board of Adjustment.
The record clearly reveals that this house of worship —— an inherently beneficial use serving the general welfare —— is harmonious with other principal structures in the neighborhood. Specifically, the Church's professional planner noted that "the variances that [are] requested are both minimal and reasonable." Notably, because the congregation will have a limited membership, its building will be the same size as single-family homes in the neighborhood, and the ground floor will have a designated worship area with seating for up to seventy people, requiring only eighteen on-site parking spaces. Additionally, peak use will be on Sundays and the Church will only offer religious-related services; therefore, the building will not be available for rent to third parties. A conclusion to the effect that this benign use will bring substantial detriments to the neighborhood is unsupported by credible evidence in the record and is unfounded.
Moreover, the Board of Adjustment's unexplained reliance upon one, but not another, opinion of Clifton's Fire Department with respect to fire safety issues does not survive judicial scrutiny because the Board of Adjustment failed to explain its choice. We do not depart from the well-established rule that a board of adjustment may choose which witnesses, including expert witnesses, to believe. El Shaer v. Planning Bd. of Twp. of Lawrence, 249 N.J.Super. 323, 329 (App. Div.), certif. denied, 127 N.J. 546 (1991). However,
to be binding on appeal, that choice must be reasonably made. Kramer, supra, 45 N.J. at 288; Nextel of N.Y., [Inc. v. Borough of Englewood Cliffs Bd. of Adj.],  361 N.J.Super. 22, 41 [(App. Div. 2003)]; Ocean County Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adj., 352 N.J.Super. 514, 537 (App. Div.), certif. denied, 175 N.J. 75 (2002). In addition, the choice must be explained, particularly where the board rejects the testimony of facially reasonable witnesses. N.Y. SMSA, L.P. [v. Bd. of Adj., Twp. of Weehawken],  370 N.J.Super. 319, 338 (App. Div. 2004)). The board cannot rely upon unsubstantiated allegations, nor can it rely upon net opinions that are unsupported by any studies or data. Cell S[.] of N.J. v. Zoning Bd. of Adj., 172 N.J. 75, 88 (2002); New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 160 N.J. 1, 16 (1999); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).
[Bd. of Educ. of City of Clifton v. Zoning Bd. of Adj. of City of Clifton, 409 N.J.Super. 389, 434-35 (App. Div. 2009).]
We are convinced from our study of the record that the action of the Board of Adjustment in determining that the Church did not qualify for conditional use variances and site plan approval was arbitrary capricious and a manifest abuse of its discretionary authority and that the trial court properly entered judgment to that effect See Green Meadows at Montville LLC v Planning Bd of Twp of Montville 329 N.J.Super. 12 22-23 (App Div 2000) (affirming trial court's reversal of denial of variances because of the incontestable conclusion that "the two needed variances were 'trivial' and could be granted in the language of the statute 'without substantial detriment to the public good' and without 'substantially impair[ing] the intent and the purpose of the zone plan and zoning ordinance'").