Opinion
DOCKET NO. A-3966-12T2
03-04-2014
JOHN C. ARROYO, Plaintiff-Appellant, v. BRICK RECYCLING CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, and THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF WALL, Defendants-Respondents.
Robert J. Inglima, Jr., argued the cause for appellant. Mark R. Aikins, argued the cause for respondent Brick Recycling Co., Inc. (Mark R. Aikins, L.L.C., attorney; Mr. Aikins, on the brief). Geoffrey S. Cramer argued the cause for respondent Zoning Board of Adjustment of the Township of Wall (Law Office of Geoffrey S. Cramer, attorneys; Jeff Thakker, of counsel; Mr. Cramer, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1847-12.
Robert J. Inglima, Jr., argued the cause for appellant.
Mark R. Aikins, argued the cause for respondent Brick Recycling Co., Inc. (Mark R. Aikins, L.L.C., attorney; Mr. Aikins, on the brief).
Geoffrey S. Cramer argued the cause for respondent Zoning Board of Adjustment of the Township of Wall (Law Office of Geoffrey S. Cramer, attorneys; Jeff Thakker, of counsel; Mr. Cramer, on the brief). PER CURIAM
Plaintiff John C. Arroyo appeals from a March 18, 2013 order, affirming the decision of the Wall Township Zoning Board of Adjustment (Board) to grant a use variance application filed by defendant Brick Recycling Co., Inc. (Brick or the applicant). Having reviewed the record, we conclude that the Board's decision was supported by sufficient credible evidence and was consistent with applicable law. We also find that the Law Division correctly applied the law in reviewing the Board's decision. We affirm, substantially for the reasons stated by the Board in its resolution dated March 17, 2012, and the reasons stated in the opinion of Judge Lawrence M. Lawson, issued February 20, 2013.
I
Brick applied for a use variance to convert a closed lumber business into a scrap metal recycling center. The applicant needed a use variance, because neither lumber yards nor recycling centers were permitted uses in the highway business (HB-120) zone, located along Routes 33/34 in Wall Township. The application did not involve any new buildings. The applicant proposed to put the existing buildings to a different use, without any new construction. The applicant planned to use an existing rail spur on the property to transport the scrap metal to buyers in other states, thereby reducing the need for truck transportation and the associated traffic. The applicant sought continued approval of the existing setbacks and other bulk variances obtained by the previous owner.
At the Board hearing, Brick's vice-president Peter DeCenzo explained that the recycling facility was designed to take ferrous and non-ferrous scrap metal from various sources, including construction sites, local building contractors, and individual homeowners. All materials received would be processed, promptly loaded on trucks or rail cars, and shipped out. It was clear from the Board hearing record that the applicant did not plan to use the premises as a "junkyard," a use the zoning ordinance prohibited anywhere in Wall Township. DeCenzo testified that, unlike other scrap metal facilities, his facility would not store materials on the premises for extended periods of time.
For example, the facility would accept junked automobiles but would not store them on the premises or sell auto parts, the way a typical junkyard would. Instead, any junked autos brought to the facility would be promptly transported to the applicant's existing yard in Brick Township, where they would be drained of fluids and crushed. The flattened autos would then be returned from the Brick Township facility to the Wall Township facility, loaded on railroad cars, and shipped to out-of-state buyers. DeCenzo agreed that any variance could be conditioned on there being no sales of auto parts to the public and no storage. During the Board hearing, the members emphasized their opposition to having a junkyard in the Township, and the applicant assured them that the facility would not be operated as a junkyard.
As a result, there would be no danger of environmental pollution caused by leaking fluids at the Wall site.
Addressing the potential impact of the project on the surrounding neighborhood, the applicant's planner testified that the property fronts on Routes 33/34, but is bounded by wooded areas on the other three sides. The applicant agreed to beautify the site by providing landscaping along Routes 33/34, to shield the existing barbed wire fencing and storage areas from public view. The planner testified that, because the site is surrounded by wetlands on one side and United States Navy property on the other, future development around it was unlikely. He testified that, "hardly anybody is going to see this site or be aware of what's going on here. It's so nicely secluded."
Further, he explained that the proposed use was consistent with the actual uses nearby, which were largely industrial. Neighboring uses included an asphalt plant and a lighting factory.
The planner testified that the facility would involve a substantially lower amount of traffic than the prior use (276 trips per day, as opposed to 1800 trips). He also testified that the property had been on the market for two or three years, and that allowing the variance would return the property to a viable economic use as opposed to leaving it vacant, provide a source of new jobs, and further the public interest in recycling. There was no opposition to the application, and the Board approved it unanimously.
In its resolution, the Board found that the "site has been vacant for a considerable period of time." The Board further found that "accessibility to the railroad spur is extremely important for [Brick] inasmuch as it provides access for sales to domestic users," the "existence of the large building will enable [Brick] to provide better security for the valuable metals," Brick will use the three existing sheds on the property and utilize the existing lighting system, unless the Board's Engineer requires additional lighting, and no changes will be made to the water and sewer system. The Board concluded that the proposed use served the purpose of the Municipal Land Use Law because it "will promote the maximum practical recovery of recyclable materials."
In his trial court brief, plaintiff agreed that the property had been unused for many years and was deemed abandoned by the municipal authorities.
The Board took "administrative notice of the fact that this section of Wall Township has an established development pattern" consisting of significant industrial use. The Board also took "positive notice of [Brick's] willingness to take over an abandoned commercial site and to rehab it and to provide an additional source of employment in the community as well as undertaking to maintain the existing infrastructure and provide much needed landscaping and screening improvements." Finally, the Board determined that the proposed facility "advances the purposes of the Municipal Land Use Law for this mixed commercial industrial area of the Township and that no substantial detriment to the Zoning Plan or Zoning Ordinance of the Township or public good will be posed by [the] grant of the use variance."
In a thorough written opinion, which we need not repeat in detail, Judge Lawson found that the Board made sufficient, specific findings about the particular suitability of the proposed use for the particular site, as well as findings that the applicant satisfied the negative criteria, as required by N.J.S.A. 40:55D-70(d). Judge Lawson found that the plant would not be a prohibited "junkyard" which typically would involve long-term storage of abandoned materials. He also found that, taken in context, the (d) variance subsumed the several bulk variances that were required. He remanded the matter to the Board for the limited purpose of allowing Brick, which was the contract purchaser of the property, to submit a corporate disclosure statement to the Board. See N.J.S.A. 40:55D-48.1 to -48.3.
Judge Lawson properly declined to consider issues which plaintiff did not raise at the pre-trial conference except as they bore upon his conclusion that the Board did not act arbitrarily.
II
On this appeal, plaintiff argues that the trial court "erred" in finding that Brick satisfied both the positive and negative criteria, and in remanding the matter to the Board to permit Brick to file a corporate disclosure statement nunc pro tunc. We cannot agree.
Like the trial court, our review of the Board's resolution is deferential. In a very recent decision addressing use variances, the Supreme Court reaffirmed the narrow scope of our review of a zoning board's decision:
[Z]oning boards, "because of their peculiar knowledge of local conditions[,] must be allowed wide latitude in the exercise of delegated discretion." That 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. 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 v. Himeji, LLC, 214 N.J. 263, 284 (2013) (citations omitted).]
In order to obtain a use variance under N.J.S.A. 40:55D-70(d), an applicant must prove the "positive criteria" by showing that there are "special reasons" to grant the variance, and must also prove the "negative criteria" by showing that granting the variance will not have a negative effect on the surrounding properties, and that allowing this particular project at "the designated site" will not undermine the purpose of the municipal zoning ordinance. Himeji, supra, 214 N.J. at 284-85.
As in this case, one way to satisfy the positive criteria is to demonstrate that the proposed site "is particularly suitable for the proposed use." Medici v. BPR Co., 107 N.J. 1, 4 (1987). In Himeji, the Court clarified that the "particular suitability" standard does not require proof that the property is unique, in the sense that it is "the only possible location for the particular project." Id. at 287.
Our use of the words peculiar and particular makes clear that the inquiry concerning whether a proposed use variance should be granted on this basis is an inherently fact-specific and site-sensitive one. Although the availability of alternative locations is relevant to the analysis, demonstrating that a property is particularly suitable for a use does not require proof that there is no other potential location for the use nor does it demand evidence that the project "must" be built in a particular location. Rather, it is an inquiry into whether the property is particularly suited for the proposed purpose, in the sense that it is especially well-suited for the use, in spite of the fact that the use is not permitted in the zone. Most often, whether a proposal meets that test will depend on the adequacy of the record compiled before the zoning board and the sufficiency of the board's explanation of the reasons on which its decision to grant or deny the application for a use variance is based.
[Id. at 292-93.]
We find no error in the Board's decision that this property is particularly suited for use as a recycling center, even though recycling centers are not permitted in the HB-120 zone. To an extent, this case resembles Burbridge v. Mine Hill, 117 N.J. 376 (1990), where the Court, taking a pragmatic approach, found that the benefits of allowing the applicant to clean up "a sprawling and unsightly mess" outweighed the detriments of allowing the applicant to expand a pre-existing non-conforming auto salvage business. Id. at 378.
Here, the Board was faced with an unsightly, long-abandoned industrial property, in an area surrounded by industrial uses, albeit zoned for somewhat more upscale development. The applicant proposed to clean up the premises, add landscaping, return the property to the tax rolls, and provide both jobs and a recycling source for the community. We find no basis in the record to second-guess the Board's decision that the property was "especially well-suited for the use" as a recycling facility, Himeji, supra, 214 N.J. at 293, that the presence of the railroad spur would decrease traffic from the premises, and that the isolated location and the new owner's willingness to add landscaping would avoid any harm to the neighborhood from a non-conforming use.
Having failed to participate in the Board hearing, plaintiff must take the record as he finds it. There was no objection to the planner's testimony that the property had been on the market for several years, with no prospective buyer other than Brick. And even plaintiff admitted in the Law Division that the property was unused and abandoned.
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Contrary to plaintiff's argument, the Board's conclusion that the use would not be a prohibited "junkyard" is supported by substantial credible evidence in the record. The applicant's vice-president cogently explained the difference between a junkyard and a recycling center and his testimony established that Brick would not be running a junkyard.
Finally, in failing to raise the issue in the pre-trial conference, plaintiff waived its right to complain that Brick filed a corporate disclosure statement for the property owner instead of for itself. See R. 4:69-4; Lertch v. McLain, 18 N.J. 68, 73 (1955) (stating that "issues not presented in the pretrial order are deemed to be waived"). Having failed to properly present the issue to Judge Lawson, plaintiff likewise cannot present the issue on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). However, even if we consider the issue, we would find no abuse of discretion in Judge Lawson's decision to remand the matter to the Board to correct the defect. See Cox & Koenig, New Jersey Zoning and Land Use Administration § 27-1.4 (2013) (noting that such a defect, discovered after approval of a land use application, could "almost undoubtedly . . . be cured by filing of the required affidavit nunc pro tunc").
To the extent not specifically addressed, plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION