Opinion
DOCKET NO. A-0758-13T3
04-02-2015
DENNIS WIGGERS, Plaintiff-Appellant, v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF CLOSTER, Defendant-Respondent.
Donna J. Vellekamp, attorney for appellant. Kates Nussman Rapone Ellis & Farhi, LLP, attorneys for respondent (Michael B. Kates, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Manahan. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2134-11. Donna J. Vellekamp, attorney for appellant. Kates Nussman Rapone Ellis & Farhi, LLP, attorneys for respondent (Michael B. Kates, of counsel and on the brief). PER CURIAM
In this prerogative writs action, plaintiff Dennis Wiggers appeals from a trial court judgment affirming the denial of his application for a use variance, N.J.S.A. 40:55D-70(d)(1), by defendant Zoning Board of Adjustment of the Borough of Closter. We affirm, substantially for the reasons expressed by Judge Carver in his written opinion of August 26, 2013.
Plaintiff's parents own the lot at issue, which is located in a small residential district sandwiched between an industrial zone to the north and a commercial zone to the south. Plaintiff is a landscaping contractor and has used the portion of the property not occupied by a single-family dwelling to house storage trailers, split firewood and grind mulch, store topsoil, mulch and hardscape materials and to park and repair his trucks and heavy equipment since 1981.
Plaintiff does not assert that his is a prior non-conforming use. Plaintiff's use of the property as a contractor's yard has been non-conforming since inception.
Plaintiff's use of the property has been the subject of numerous complaints by neighbors of noise, odors, dust and debris over the years. In 2009, plaintiff entered into an Administrative Consent Order with the Department of Environmental Protection arising out of the Department's allegation that plaintiff had been operating an unapproved solid waste facility on the property. His application for a use variance was initiated only after the Borough of Closter prosecuted him for zoning violations in municipal court.
The Board of Adjustment rejected the testimony of plaintiff's expert that the application satisfied both the positive and negative criteria required by the Municipal Land Use Law (MLUL) for the grant of a use variance for four specific reasons:
First, the facts of this case are clearly distinguishable from the [cases involving the grant of two other use variances to properties that plaintiff claimed were similar to his]. Where the previous applicants dealt with the storage of equipment on the residentially zoned properties, this application proposes active commercial uses including loud wood-splitting and mechanical repairs of large contractors' equipment.
Second, conditioning an approval on discontinuing mechanical repairs on the property, as proposed in the motion to approve, would not eliminate other noxious consequences of [plaintiff's] commercial enterprise on the property.
Third, although the unremarkable use of a portion of a residential property to remove or store materials as part of the homeowners' landscaping business is the kind of transitional use welcomed or at least tolerated by the Master Plan and Re-Examination Report, the property loses its "site-suitability" when the commercial use becomes that of a landscape contractor whose activities rise to the level of a repeated nuisance to surrounding residential properties, as evidenced by the Closter Police Report . . . and the testimony of [a neighbor located within 500 feet of the property].
Fourth, the case here is distinguishable because there are insufficient setbacks that fail to buffer and isolate the commercial activities from the residential neighbors. Thus, wood-splitting activities and
mechanical repairs have demonstrably interfered with the health, safety and welfare of the surrounding residential neighbors.
In a comprehensive and well-reasoned opinion, Judge Carver determined that plaintiff had not overcome the presumption of validity afforded the Board's resolution and failed to demonstrate it had acted in an arbitrary, capricious or unreasonable manner in denying his requested use variance. See N.Y. SMSA Ltd. P'ship v. Bd. of Adjustment, 324 N.J. Super. 149, 163-64 (App. Div.), certif. denied, 162 N.J. 488 (1999). Noting the Board's well-established prerogative to reject the testimony of an applicant's expert, Bd. of Educ. of City of Clifton v. Zoning Bd. of Adjustment of City of Clifton, 409 N.J. Super. 389, 434 (App. Div. 2009), the judge concluded the Board's rejection of plaintiff's expert's opinion, that plaintiff demonstrated the "special reasons" necessary to obtain a use variance, was well-supported in the record. See Nuckel v. Borough of Little Ferry Planning Bd., 208 N.J. 95, 102 (2011) (explaining the three categories of circumstances in which the "special reasons" required for a use variance may be found).
We agree that there is nothing in this record to support plaintiff's contention that his proposed use would promote the general welfare or that this site is particularly well-suited for use as a contractor's yard under existing precedent. See Price v. Himeji, LLC, 214 N.J. 263, 288 (2013). That plaintiff's non-conforming use has persisted over many years does not entitle him to a use variance, Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 395 (1990), especially in light of the demonstrated detrimental effects his active commercial use of the property has visited on his residential neighbors.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION