Opinion
DOCKET NO. A-0199-13T3
03-31-2015
206 ACORN ASSOCIATES, INC., Plaintiff-Appellant, v. PLANNING BOARD OF THE TOWNSHIP OF BYRAM and FIRST HARTFORD REALTY CORPORATION, Defendants-Respondents, and BVJ&P, INC., Defendant/Intervenor-Respondent.
Brian D. Schwartz argued the cause for appellant (Craner, Satkin, Scheer, Schwartz & Hanna, P.C., attorneys; Mr. Schwartz on the briefs). Kurt G. Senesky argued the cause for respondent Planning Board of the Township of Byram (Schenck, Price, Smith & King, LLP, attorneys; Mr. Senesky, of counsel and on the brief). Michael S. Selvaggi argued the cause for respondent First Hartford Realty Corporation (Courter, Kobert & Cohen, P.C., attorneys; Mr. Selvaggi, of counsel and on the brief; Richard W. Wenner, on the brief). BVJ&P, Inc., has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Guadagno and Leone. On appeal from the Superior Court of New Jersey, Sussex County, Law Division, Docket No. L-548-12. Brian D. Schwartz argued the cause for appellant (Craner, Satkin, Scheer, Schwartz & Hanna, P.C., attorneys; Mr. Schwartz on the briefs). Kurt G. Senesky argued the cause for respondent Planning Board of the Township of Byram (Schenck, Price, Smith & King, LLP, attorneys; Mr. Senesky, of counsel and on the brief). Michael S. Selvaggi argued the cause for respondent First Hartford Realty Corporation (Courter, Kobert & Cohen, P.C., attorneys; Mr. Selvaggi, of counsel and on the brief; Richard W. Wenner, on the brief). BVJ&P, Inc., has not filed a brief. PER CURIAM
Plaintiff 206 Acorn Associates, Inc. appeals from two orders of the Law Division relating to the effort of defendant First Hartford Realty Corporation (First Hartford) to build a CVS pharmacy in the Township of Byram (Township). The Honorable Thomas L. Weisenbeck denied plaintiff's requests to void the approvals by defendant Planning Board of the Township of Byram (Board) of the site plan, use variance, and bulk variances. We affirm.
I.
We summarize the facts. First Hartford is the contractual service developer for CVS and the proposed developer of the property at 77 U.S. Route 206 in the Township. The property is in the Township's Village Business District Zone (VB Zone). The VB Zone is intended "to complement and be architecturally influenced by" the Township's Village Center District across Route 206, "to establish a more village-like downtown that better accommodates pedestrians and bicyclists and promotes certain architectural and landscape elements," and "to transform the high-speed, auto-oriented thoroughfare typical of highway-strip development into a neotraditional 'Main Street.'" Twp. of Byram, N.J., Vill. Bus. Dist. Ordinance, (Ordinance) § 240-56(A)(2006). In the VB Zone, a "Drugstore" is a permitted use, Ordinance § 240-56(B)(1)(k), but a "Drive-up service/facility" is a prohibited use, Ordinance § 240-56(D)(5).
In 2011, First Hartford submitted an application proposing to develop a CVS store and other retail and residential buildings on the two-lot property. After several public hearings, First Hartford abandoned that proposal, and instead proposed to build only a CVS store on one lot of the property. First Hartford's revised proposal was opposed by plaintiff, which owns a vacant property on Route 206 and in the Township's VB Zone.
To carry out its revised proposal, First Hartford sought a use variance to permit a drive-through window under N.J.S.A. 40:55D-70(d)(1). First Hartford also sought bulk variances under N.J.S.A. 40:55D-70(c)(2).
A bulk variance allows deviation from the "[p]rovisions in a zoning ordinance that control the size and shape of a lot and the size and location of buildings or other structures on a parcel of property [which] are known as bulk or dimensional requirements." Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 2 8 (2013).
After holding eighteen public hearings, the Board approved the site plan with revisions, as memorialized in a twenty-one-page resolution dated July 5, 2012. The Board granted the requested variances for numerous reasons, some of which we highlight here. The Board authorized the use variance under N.J.S.A. 40:55D-70(d)(1) for a drive-through window, finding it advanced N.J.S.A. 40:55D-2(a)'s purposes of zoning to "promote the public health, safety, . . . and general welfare" by making prescription medication more accessible to customers, especially older persons, the handicapped, and parents of young children. The Board found the property, located at the intersection of two of the most heavily-traveled roadways in the Township, was particularly suited for a drive-through service, which was not provided elsewhere in the Township. The Board decided drive-through service was consistent with the goals of the Township's Master Plan to support economic development and to vary land usage.
The Board also approved variances under N.J.S.A. 40:55D-70(c)(2) from the bulk requirements of Ordinance § 240-56(E). The Board permitted a 29% larger building area because the lot was eight times the minimum lot size, and stated the variance advanced the purpose of zoning in N.J.S.A. 40:55D-2(g) (zoning seeks "[t]o provide sufficient space in appropriate locations for a variety of . . . uses and open space"). The Board agreed to two rows rather than one row of front-yard parking, and permitted side-yard parking, because that provided more "light, air and open space," and a more "desirable visual environment" to the residential neighbors in the north and rear than requiring most of the parking to be in the rear yard. N.J.S.A. 40:55D-2(c), (i). To enable the expanded front yard parking and provide an attractive front streetscape, the Board approved a front yard setback of 102 feet rather than fifty-five feet.
The Board also found that requiring most of the parking to be in the rear yard would result in a hardship under N.J.S.A. 40:55D-70(c)(1) due to the slope of the property. As no party argues that this variance was justified under (c)(1), we consider it only under (c)(2).
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The Board also granted variances from the requirements of Ordinance § 240-40(B) and § 240-80(J) and (P). It found brighter illumination of the drive-through area, like drive-through service itself, served the public health, safety, and welfare. N.J.S.A. 40:55D-2(a). The Board agreed to a narrower sidewalk enabling more pervious surfaces and vegetation areas. It allowed a larger flat roof because it was masked by a pitched roof and still provided "desirable visual environment." N.J.S.A. 40:55D-2(i). The Board approved greater signage on the theory it would aid "the free flow of traffic." N.J.S.A. 40:55D-2(h). Finally, the Board concluded that the variances could be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning ordinance.
Plaintiff filed an action in lieu of prerogative writs in the Law Division. After a trial, Judge Weisenbeck issued a May 28, 2013 order, supported by a twenty-eight-page statement of reasons. The court found that ample testimony supported the Board's approval of the site plan, use variance, and bulk variances. The court upheld those actions, concluding that plaintiff failed to show the Board's actions were arbitrary, capricious, and unreasonable.
The court remanded for the Board to rule on First Hartford's request for a bulk variance allowing omission of a rear entrance door. In a June 7, 2013 supplemental resolution, the Board found that a rear door was unnecessary and undesirable because it would encourage parking in the rear yard, exposing the residential property owners to headlights and noise. The court upheld the supplemental resolution in an oral opinion and an August 1, 2013 order.
II.
Plaintiff appeals both the May 28 and August 1, 2013 orders, challenging the Board's approval of the use variance and bulk variances. We must hew to our standard of review. "Our standard of review for the grant or denial of a variance is the same as that applied by the Law Division." Advance at Branchburg II, LLC v. Twp. of Branchburg Bd. of Adjustment, 433 N.J. Super. 247, 252 (App. Div. 2013).
"[W]hen a party challenges a zoning board's decision through an action in lieu of prerogative writs, the zoning board's decision is entitled to deference." Kane Props., LLC v. City of Hoboken, 214 N.J. 199, 229 (2013). "[Z]oning boards, 'because of their peculiar knowledge of local conditions[,] must be allowed wide latitude in the exercise of delegated discretion.'" Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)). A zoning "board's decisions enjoy a presumption of validity, and a court may not substitute its judgment for that of the board unless there has been a clear abuse of discretion." Ibid. Thus, "courts ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58-59 (1999).
"In evaluating a challenge to the grant or denial of a variance, the burden is on the challenging party to show that the zoning board's decision was 'arbitrary, capricious, or unreasonable.'" Price, supra, 214 N.J. at 284 (quoting Kramer, supra, 45 N.J. at 296). If "the decision of the Zoning Board was not arbitrary, capricious, or unreasonable, it must be sustained." TSI E. Brunswick, LLC v. Zoning Bd. of Adjustment of E. Brunswick, 215 N.J. 26, 47 (2013).
The trial court recognized and applied this standard of review. Nonetheless, plaintiff contends the trial court failed to apply the correct standard of review. Plaintiff argues it is inappropriate to simply rely on the general standard of arbitrariness in review of bulk variances and use variances under Kaufmann v. Planning Bd. for Warren, 110 N.J. 551 (1988), and Medici v. BPR Co., 107 N.J. 1 (1987). However, both of those cases recognize the arbitrariness standard, Kaufmann, supra, 110 N.J. at 565; Medici, supra, 107 N.J. at 15, 22 n.12, as have the cases applying Medici and Kaufmann. See Price, supra, 214 N.J. at 269-70, 284-89, 298, 301-02; Lang, supra, 160 N.J. at 56-58; see also Northgate Condo. Ass'n v. Borough of Hillsdale Planning Bd., 214 N.J. 120, 145 (2013).
The trial court also recognized the particular requirements for use variances and bulk variances, including those in Medici, Kaufmann, and the other cases plaintiff cites. The trial court quoted N.J.S.A. 40:55D-70(d)(1), which permits the Board, "[i]n particular cases for special reasons, [to] grant a variance . . . to permit: (1) a use or principal structure in a district restricted against such use or principal structure." The trial court also quoted N.J.S.A. 40:55D-70(c)(2), which permits the Board to grant a variance where "the purposes of [the Municipal Land Use Law (MLUL)] . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment."
The MLUL "'requires an applicant to prove both positive and negative criteria to obtain a use variance.'" Price, supra, 214 N.J. at 285; see also N.J.S.A. 40:55D-70(d). Regarding the negative criteria, Medici "require[s] an enhanced quality of proof, as well as clear and specific findings by the board of adjustment, that the grant of a use variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici, supra, 107 N.J. at 4. With respect to the positive criteria, Medici requires that "the applicant must prove and the board must specifically find that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use." Ibid. "Because of the legislative preference for municipal land use planning by ordinance rather than variance, use variances may be granted only in exceptional circumstances," Kinderkamack Rd. Assocs., LLC v. Mayor & Council of Oradell, 421 N.J. Super. 8, 12 (App. Div. 2011), and "a reviewing court gives less deference to a grant than to a denial of a use variance," Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75 (App. Div. 2006).
The trial court acknowledged all of these requirements in upholding the use variance. The trial court observed that, "[w]hile formidable, satisfaction of the Medici standards remains attainable." The trial court found that First Hartford produced substantial testimony establishing that the site was particularly suited for use of a drive-through window. The court also found that First Hartford demonstrated by an enhanced standard of proof that a drive-through window would not cause substantial detriment to the surrounding community or the public good. Likewise, the court found it would not substantially impair the intent and purpose of the zoning ordinance and master plan.
The trial court also recognized the requirements for bulk variances set forth in Kaufmann, supra, 110 N.J. at 563:
[N]o c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case . . . [is] on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community.The trial court acknowledged that a bulk variance requires
"that the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance requirement; that the variance can be granted without substantial detriment to the public good; that the benefits of the deviation would substantially outweigh any detriment[;] and that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance."The trial court found these criteria were established for each of the bulk variances granted by the Board.
[Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 198 (App. Div. 2009) (numbering omitted) (quoting William M. Cox, New Jersey Zoning & Land Use Administration, § 6-3.3 at 143 (Gann 2008)); see also Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013).]
Therefore, we reject plaintiff's claim that the trial court applied the wrong standard of review and failed to consider the requirements of Medici and Kaufmann for granting use variance and bulk variances.
III.
Applying that standard of review, we uphold the Board's grants of those variances for substantially the reasons set forth in Judge Weisenbeck's thorough statement of reasons in support of his May 28, 2013 order, and his July 31, 2013 oral opinion supporting his August 1, 2013 order. We add the following.
Plaintiff focuses its appeal on challenging the bulk variances under N.J.S.A. 40:55D-70(c)(2). However, "bulk variances[] are considered in accordance with a more flexible test" than use variances. Price, supra, 214 N.J. at 297. "[B]ecause of its lesser moment the c(2) variance need not be so closely confined to the general welfare. Rather, it may take its meaning as well from the other specific purposes of zoning set forth in the MLUL." Kaufmann, supra, 110 N.J. at 563. "The Legislature undoubtedly intended through the c(2) variance to vest a larger measure of discretion in local boards in a limited area of cases. Courts are obliged to respect that grant of power." Id. at 566; see Price, supra, 214 N.J. at 297.
Plaintiff asserts the bulk and use variances will enable First Hartford to construct a CVS store fitting CVS's "prototype" building. While "'no c(2) variance should be granted when merely the purpose of the owner will be advanced[,]'" a variance which advances the owner's purpose may be granted if it "'actually benefit[s] the community in that it represents a better zoning alternative for the property.'" Pullen v. Twp. of S. Plainfield Planning Bd., 291 N.J. Super. 1, 7 (App. Div. 1996) (quoting Kaufmann, supra, 110 N.J. at 563). Here, the Board found First Hartford's revised proposal benefitted the community "in the context of its effect on the development proposal, the neighborhood, and the zoning plan." Id. at 9.
Plaintiff argues that the large and generic CVS store, with its set back from the street, front parking, side parking, and drive-through window, detracts from the goals of the VB Zone and the Master Plan to transform high-speed auto-oriented highway-strip development into a more village-like downtown oriented toward pedestrians. See, e.g., Ordinance § 240-59(B) (a drive-up service/facility "encourages or permits customers to receive goods or services while remaining in their motor vehicles"). In support of its argument, plaintiff cites a critical report by the Architectural Review Committee and unfavorable statements by the Township's planner and Board members when the revised proposal was first offered.
However, because "[t]he statements of individual Planning Board members[] 'represent informal verbalizations of the speaker's transitory thoughts, they cannot be equated to deliberative findings of fact. It is the Resolution, and not board members' deliberations, that provides the statutorily required findings of fact and conclusions.'" Rocky Hill Citizens for Responsible Growth v. Planning Bd. of Rocky Hill, 406 N.J. Super. 384, 413 (App. Div. 2009). The Board's resolution ultimately found that "the proposed development will complement the future Village Center Development." The Board rejected plaintiff's "attempts to categorize it as a strip mall," and asserted it "will present an attractive streetscape."
As the trial court recognized, "'[i]n these highly controversial and oftentimes debatable zoning cases the courts must recognize that local officials who are thoroughly familiar with their community's characteristics and interests and are the proper representatives of its people are undoubtedly the best equipped to pass initially on such applications for variance.'" Lang, supra, 160 N.J. at 58 (quoting Kramer, supra, 45 N.J. at 296 (internal quotation marks omitted)). This principle "reflects a pragmatic assumption that local boards of adjustment ordinarily will not grant variances that would be substantially detrimental to neighboring properties or that are incompatible with the zoning plan." Ibid.
"[T]he question is not whether a reviewing court would have reached a different conclusion if it had initially decided the matter." Bressman v. Gash, 131 N.J. 517, 527 (1993). "'We do not sit in judgment on whether the envisioned [zoning change] is wise or unwise.'" Kaufmann, supra, 110 N.J. at 558. "'Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.'" Price, supra, 214 N.J. at 295 (quoting Kramer, supra, 45 N.J. at 296-97). Here, "[a]lthough the record does not necessarily compel the grant of either a [(d)(1) or (c)(2)] variance, we find that the Board acted within its discretion in granting the application." Bressman, supra, 131 N.J. at 530.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION