Opinion
DOCKET NO. A-2445-13T1
03-19-2015
SAIMA ARSALAN, ARSALAN AHMED, CATHY ARATA, THOMAS JAHNKE, ROBERT KLEHM, WILLIAM STEVENSON, DARIAN DESOMBRE, DAVID KNIGHT, and JAYESH PARIKH, Plaintiffs-Appellants, v. TOMS RIVER TOWNSHIP PLANNING BOARD and TCAT PROPERTIES, LLC, Defendants-Respondents.
Edward F. Liston, Jr., argued the cause for appellants (Edward F. Liston, Jr., LLC, attorneys; Mr. Liston, of counsel and on the briefs). Gregory P. McGuckin argued the cause for respondent Toms River Township Planning Board (Dasti, Murphy, McGuckin, Ulaky, Koutsouris & Connors, attorneys; Mr. McGuckin, of counsel; Christopher J. Dasti, on the brief). Amtimo A. Del Vecchio argued the cause for respondent TCAT Properties, LLC (Beattie Padovano, LLC, attorneys; Mr. Del Vecchio, of counsel and on the brief; Daniel L. Steinhagen, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2143-13. Edward F. Liston, Jr., argued the cause for appellants (Edward F. Liston, Jr., LLC, attorneys; Mr. Liston, of counsel and on the briefs). Gregory P. McGuckin argued the cause for respondent Toms River Township Planning Board (Dasti, Murphy, McGuckin, Ulaky, Koutsouris & Connors, attorneys; Mr. McGuckin, of counsel; Christopher J. Dasti, on the brief). Amtimo A. Del Vecchio argued the cause for respondent TCAT Properties, LLC (Beattie Padovano, LLC, attorneys; Mr. Del Vecchio, of counsel and on the brief; Daniel L. Steinhagen, on the brief). PER CURIAM
On appeal, plaintiffs challenge a January 14, 2014 judgment, following trial de novo, affirming the decision of defendant Toms River Township Planning Board (the Board) to grant a rear setback variance to defendant TCAT Properties, LLC (TCAT). The Board, after public hearing and review, approved demolition of an abandoned gasoline service station, which had become an "eyesore," to construct a 3010 square foot 7-Eleven convenience store on the "irregularly shaped lot," located within Toms River's Highway Business Zone. The lot abuts a residential zone and plaintiffs are owners of property within 200 feet of the proposed development.
In a ten-page written opinion, Judge Vincent J. Grasso reviewed the requirements of the municipal zoning ordinance, assessed the expert testimony regarding the impact of the development, and considered the applicable provisions of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. He determined the Board's June 5, 2013 resolution granting the rear setback variance to allow development within thirty feet of the residential housing where the zoning ordinance requires a sixty-foot buffer, was satisfactorily supported by the Board's findings and its analysis of the positive and negative criteria, as required by N.J.S.A. 40:55D-70(c)(2). Judge Grasso found the Board's decision provided the benefits of granting the variance would substantially outweigh any detriments, and the variance would not cause substantial detriment to the public good or the zoning plan. Further, he concluded the variance was not merely to aid TCAT, but rather presented a better zoning alternative for the property because the building added a solid buffer against noise that might disturb the adjacent neighborhood. He affirmed the Board's determination and dismissed plaintiffs' complaint.
Under N.J.S.A. 40:55D-70(c)(2), a board may grant a variance from a bulk or dimensional provision in a zoning ordinance if the deviation would advance the purposes of the MLUL and "the benefits of the deviation would substantially outweigh any detriment . . . ."
On appeal, plaintiffs argue the Board's grant of the variance was arbitrary, capricious, and unreasonable in light of testimony offered by their expert planner, who stated permitting the variance would harm the adjacent residences. Plaintiffs also maintain Judge Grasso erroneously considered the benefits of the non-conforming structure when a conforming one could be constructed on TCAT's lot. Plaintiffs seek reversal of the Law Division's order and vacation of the Board's resolution.
TCAT's application sought several variances; however, plaintiffs' appeal is limited solely to their challenge of the rear yard setback variance.
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We have considered the arguments presented on appeal, in light of the record and applicable law. We affirm, substantially for the reasons set forth in Judge Grasso's comprehensive written opinion. R. 2:11-3(e)(1)(A). We add these brief comments.
The municipal land use ordinance generally requires a thirty-foot rear yard setback, except when a development is adjacent to a residential zone, in which case a sixty-foot rear yard setback is mandated. Toms River Twp., N.J., Code § 348-5.5(G) (2007). TCAT's proposed development included a thirty-foot setback and placed the building toward the residential zone at the rear of the lot to provide additional screening between the residences and the business entrance, customer parking, lighting, and operational activity. During the two days of public hearings, TCAT presented expert testimony by Robert Freud, the project planner and engineer; Jose Santos, an architect; and Elizabeth Dolan, a traffic engineer. Plaintiffs presented professional planner, Thomas A. Thomas.
Weighing this evidence, the Board granted preliminary and final major site plan approval, concluding:
WHEREAS, the Board has specifically determined that there is no better
alternative to granting the proposed setback variances, as the plan as proposed provides an optimum layout because only the structure will face the rear of the property and the adjoining residential zone. This will eliminate any substantial impact upon the residential homes with the store being utilized as a buffer between pedestrians, customers, and vehicular traffic; and
WHEREAS, the Board notes that the applicant can either place the building where proposed or move it more to the center of the subject lot, however this would cause additional variance relief being necessitated and bring parking and traffic circulation, and other activity, closer to the residential homes; and
WHEREAS, the Board believes it more appropriate to limit activity at the rear of the subject property; and
WHEREAS, the Board has determined that the variances requested can be granted since the benefits outweigh any detriment; and
WHEREAS, the Board further finds that the variances can be granted without any negative impact upon the Township's zoning plan or neighborhood scheme; and
WHEREAS, the Board notes that while objectors have requested a smaller building or a different type of use, the use proposed is permitted in the zone and if the applicant chose to construct the building more to the center of the lot, the impact upon the Township's zoning plan and neighborhood scheme would in fact be more detrimental; and
. . . .
WHEREAS, the Board notes [] a plan meeting all setback requirements would not be more
beneficial to adjoining property owners but in fact would be more detrimental . . . .Finally, the resolution conditioned approval upon relocation of the dumpster away from the residences, and required TCAT move the HVAC system to the roof as far as possible from the residential zone and screen the system behind parapets to reduce noise.
In reviewing a municipal planning board's action, a trial court considers whether the board's determination was arbitrary, capricious, or unreasonable, which occurs if "its findings of fact in support of a grant or denial of a variance are not supported by the record . . . ." See Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 33 (2013). Generally, board decisions are presumed valid "'because of their peculiar knowledge of local conditions,'" and boards "'must be allowed wide latitude in the exercise of delegated discretion.'" Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 58 (1999) (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)). See also CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd./Bd. of Adjustment, 414 N.J. Super. 563, 577-78 (App. Div. 2010) ("[L]ocal citizens familiar with a community's characteristics and interests are best equipped to assess the merits of variance applications." (citation and internal quotation marks omitted)).
"We apply this same standard when reviewing a trial court's decision on an appeal from a decision of a board of adjustment." Id. at 577. In doing so, we "may not substitute [our] own judgment for that of the board unless there has been a clear abuse of discretion . . . ." Ten Stary, supra, 216 N.J. at 33.
Plaintiffs argue there was no evidence showing the proposed deviation advanced the purposes of the MLUL or that the community benefits outweighed the presented detriments. We disagree.
Here, as Judge Grasso noted, the Board's resolution evinces its consideration of both the positive and negative criteria. First, the Board found TCAT's "proposed layout provides for a better zoning alternative than strict adherence to the Zoning Ordinance as it furthers the purposes of [the MLUL]." The Board determined the plan provided "an optimum layout" by keeping vehicular and pedestrian traffic and noise at the front of the lot toward the highway and using the store as a "buffer from the residential zone to the rear." Also, the Board found a conforming plan would place traffic and parking, "and its attendant nuisances, closer to the residential homes" and determined "it more appropriate to limit activity at the rear of the subject property . . . ." In considering the negative criteria, the Board found the variance would not cause substantial detriment to the public good or the zoning plan, it avoided "any substantial impact upon the residential homes," and there was "no better alternative" to protect the residences. We defer to these findings, which support the Board's reasonable conclusion "the benefits" of the variance "outweigh any detriment . . . ." See Kaufmann v. Planning Bd., 110 N.J. 551, 553 (1988).
Judge Grasso also discussed plaintiffs' evidence, including Thomas' caution against disregarding the unambiguous policy to protect residential homeowners from noise and congestion associated with adjacent commercial development, which underlies the sixty-foot setback requirement. Judge Grasso noted the Board was aware TCAT's development benefits the community because it seeks to demolish the existing "abandoned" gas station that was "falling into a state of disrepair." See Pullen v. Twp. of S. Plainfield Planning Bd., 291 N.J. Super. 1, 9 (App. Div. 1996) (noting "a variance cannot be considered in isolation," and N.J.S.A. 40:55D-70(c)(2) does not "restrict the benefits [considered] only to those obtained by permitting the deviation").
As was thoroughly discussed in Judge Grasso's opinion, plaintiffs' argument suggesting no evidence showed the purposes of the MLUL would be advanced, making variance relief solely for the benefit of TCAT's interests, is belied by the record. The record contains ample evidence supporting the Board's conclusion the variance "effectuate[s] the goals of the community as expressed through its zoning and planning ordinances." Kaufmann, supra, 110 N.J. at 564. We conclude, as did Judge Grasso, the Board acted within its discretion in granting the variance despite the possibility of a conforming structure because the variance promoted the best zoning alternative. See Bressman v. Gash, 131 N.J. 517, 525, 530 (1993) (holding variance properly granted despite a conforming structure could be built).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION