Opinion
DOCKET NO. A-6251-12T4
09-25-2014
ROBERT H. BREUNIG, Plaintiff-Appellant, v. T&R HOLDINGS, LLC and UPPER TOWNSHIP ZONING BOARD OF ADJUSTMENT, Defendants-Respondents.
John Scott Abbott, attorney for appellant. The Law Offices of Kristopher J. Facenda, LLC, attorneys for respondent T&R Holdings, LLC (Mr. Facenda, on the brief). Law Office of Nathan Van Embden, attorneys for respondent Upper Township Zoning Board of Adjustment (Dean R. Marcolongo, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-433-12. John Scott Abbott, attorney for appellant. The Law Offices of Kristopher J. Facenda, LLC, attorneys for respondent T&R Holdings, LLC (Mr. Facenda, on the brief). Law Office of Nathan Van Embden, attorneys for respondent Upper Township Zoning Board of Adjustment (Dean R. Marcolongo, on the brief). PER CURIAM
Plaintiff Robert H. Breunig appeals from an order entered by the Law Division July 15, 2013, which affirmed the decision of defendant Upper Township Zoning Board of Adjustment (Board) that granted use and bulk variances, design waivers and preliminary and final site plan approval to defendant T&R Holdings, LLC (T&R). We affirm.
I.
T&R is the owner of property on Meadowview Lane in Upper Township, having purchased the property in 2008. The property is bordered by the Tuckahoe River to the north, Route 50 to the west, Meadowview Lane to the south, and plaintiff's property to the east. The property is located in the Township's Tuckahoe River Zone, where the minimum lot size is two acres and the only use allowed is for single-family homes. The property is also situated in a location designated as a "Wild and Scenic Waters Area."
The property had previously been the site of a marina and three residential units, but they had fallen into disrepair. In June 2009, T&R submitted an application to the Board for a use variance, bulk variances, design waivers, as well as preliminary and final site plan approval. T&R proposed to develop the property by constructing a ten-slip marina, three residential units, and certain other improvements.
The Board approved the application, and its decision was memorialized in Resolution BA-05-09. Plaintiff appealed the Board's action to the Law Division. The parties stipulated that one of the Board members who voted on the application had a disqualifying conflict of interest. Therefore, the court entered an order dated April 19, 2010, declaring the Board's resolution null and void and remanding the matter to the Board for reconsideration.
In 2011, T&R submitted another application to the Board, again seeking variance relief, design waivers, as well as preliminary and final site plan approval. The Board conducted eight hearings in the matter, and on June 14, 2012, approved the application. The Board memorialized its decision in Resolution BA-01-11. Plaintiff appealed to the Law Division, which conducted a trial in the matter, affirmed the Board's decision and dismissed the complaint. This appeal followed.
II.
Plaintiff argues that the Board's decision to grant use and bulk variance relief was arbitrary, capricious and unreasonable. We do not agree.
"The role of a court in reviewing . . . a local board's land use decision is very narrowly circumscribed." Scully-Bozarth Post # 1817 of the VFW v. Planning Bd. of Burlington, 362 N.J. Super. 296, 314 (App. Div. 2003). The court "must give substantial deference to such decisions, recognizing that because of the knowledge possessed by local board members of local conditions and interests, they are best equipped to determine the merits of variance applications." Ibid. (citing Med. Ctr. v. Twp. of Princeton Zoning Bd. of Adjustment, 34 3 N.J. Super. 177, 198 (App. Div. 2001)).
A court may overturn a zoning decision when it is shown to be arbitrary, unreasonable or capricious, Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965), or in violation of statutory requirements. Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 385 (1990). A board's action is presumed valid, and the challenger has the burden to prove otherwise. N.Y. SMSA Ltd. P'ship v. Bd. of Adjustment of Bernards, 324 N.J. Super. 149, 163 (App. Div. 1999), certif. denied, 162 N.J. 488 (1999). If there is substantial evidence in the record to support a board's action, "a reviewing court may not substitute its judgment for that of local officials." Scully-Bozarth, supra, 362 N.J. Super. at 314 (citing Kramer, supra, 45 N.J. at 296).
A. Use Variance.
Under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, a zoning board of adjustment may "[i]n particular cases for special reasons," grant a variance to permit "a use or principal structure in a district restricted against such use or principal structure." N.J.S.A. 40:55D-70(d)(1). Like other variances granted under N.J.S.A. 40:55D-70, the applicant must establish that the variance "can be granted without substantial detriment to the public good," and that it "will not substantially impair the intent and purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70.
The required "special reasons," or positive criteria, may be established when (1) "'the proposed use inherently serves the public good'"; (2) "'the property owner would suffer "undue hardship" if compelled to use the property in conformity with the [zoning ordinance]'"; or (3) "'the use would serve the general welfare because the . . . site is particularly suitable for the proposed use'". Nuckel v. Borough of Little Ferry Planning Bd., 208 N.J. 95, 102 (2011) (quoting Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 76 (App. Div. 2006)).
Furthermore, the applicant for a use variance must establish the negative criteria, specifically "that the variance 'can be granted without substantial detriment to the public good' and that it 'will not substantially impair'" the zoning regulations, with an enhanced quality of proof. Price v. Himeji, LLC, 214 N.J. 263, 286 (2013) (quoting N.J.S.A. 40:55D-70). The first of the negative criteria "focuses on the effect that granting the variance would have on the surrounding properties." Ibid. (citing Medici v. BPR Co., 107 N.J. 1, 22 n.12 (1987)). The second requires proof "reconcil[ing] the grant of the variance for the specific project at the designated site with the municipality's contrary determination about the permitted uses as expressed through its zoning ordinance." Ibid. (citing Medici, supra, 107 N.J. at 21).
Here, the Board noted that, before T&R acquired the property in 2008, the structures onsite had fallen into "severe disrepair." One structure was "severely deteriorated" due to flood damage and neglect, the septic system had failed, the bulkhead had deteriorated, and a houseboat had sunk in the river in front of the property. The Board noted that T&R proposed to renovate much of the dilapidated structure on the same footprint, and raise the structure above the base-flood elevation.
The Board determined that T&R's development plan was a substantial benefit to the public in terms of aesthetics, and the promotion of the public health, safety and general welfare. The plan would provide adequate light, air and open space, and promote the State's policy of providing public access to the State's waterways.
The Board also said the plan promotes the purpose of providing sufficient space in appropriate locations for a variety of residential, recreational and commercial uses, as well as the conservation of resources. The Board found that, because the plan is compatible with the surrounding neighborhood, the use variance could be granted without substantial detriment to the public good and it would not substantially impair the intent and purpose of the zoning plan and ordinance.
In its written opinion, the trial court noted that it is the policy of the State of New Jersey to provide public access to its waterways, and encourage water-dependent uses of properties that are located adjacent to those waterways. The court stated that operation of the marina on the property would serve the general welfare and promote the purposes of zoning be providing recreational waterfront activity for New Jersey residents. Moreover, allowing the operation of the marina, along with the adjacent residential units and office, would not violate the Wild and Scenic River designation of the site. The court said this "argument is a red herring in light of the site's demonstrated furtherance" of New Jersey's policy to provide "public access" to the State's waterways. The court noted that T&R's development plan would essentially maintain use of the property, where the marina and residential units have been located since the 1930's.
In addition, the court noted that the evidence presented before the Board indicated that the site is particularly suited for use as a marina. The court pointed out that the testimony showed that development of the new bulkhead would protect the site and area from flooding. The development also provides for adequate light and air and open space, and encourages the development of diverse uses in an appropriate location. The court noted that, since T&R acquired the property, it had removed a sunken houseboat on site, built the new bulkhead, and improved the septic system, thereby transforming the property from "its initial dilapidated state" and protecting it from flooding.
The court also found that the record supported the Board's finding that grant of the variance would not substantially impair the intent and purpose of the zone plan and ordinance. The evidence showed that a marina with dwelling units had been on the site since the 1930's. The court determined that these were valid nonconforming uses under N.J.S.A. 40:55D-68.
We are satisfied that the record fully supports the trial court's conclusion. Our decision in Anfuso v. Seeley, 243 N.J. Super. 349 (App. Div. 1990), supports this determination.
In that case, the defendants acquired property that contained a marina, which was not a permitted use in a residential area. Id. at 351-52. When the defendants attempted to expand the marina, an owner of property in the area challenged the development, and the defendants sought variance relief. Id. at 352-53. The zoning board granted the application and the trial court affirmed. Id. at 357-59.
We upheld the trial court's decision. Id. at 359, 375. We said that the defendants had established special reasons for the variance relief. Id. at 369. We took note of the State's policy to encourage the development of water-dependent uses on properties adjacent to waterways, including marina operations of the sort proposed. Ibid. We also noted that operation of the marina would advance the State's policy of utilizing shoreline resources for recreational purposes. Id. at 372.
In addition, we said that the defendants had satisfied the negative criteria for grant of the variance. Id. at 373-74. We pointed out that, because the development advanced the State's policy regarding public use of the waterways, the use of the property as a marina would not be a detriment to the public good. Id. at 374. We also stated that the marina would not substantially impair the zone plan or ordinance because a marina had existed on the site for many years. Ibid.
The facts presented in this case are substantially similar to those presented in Anfuso. We therefore conclude, as we concluded in Anfuso, that the trial court correctly determined that the Board's grant of the use variance was not arbitrary, capricious or unreasonable.
B. Bulk Variances.
Next, plaintiff argues that the extensive variance relief granted is detrimental to his quiet use and enjoyment of his property, a violation of the zoning ordinance and master plan, and contrary to the designation of the property as part of a Wild and Scenic River area. Again, we disagree.
N.J.S.A. 40:55D-70(c) authorizes the board to grant bulk variances. It provides:
(1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application ofIn addition, the applicant must establish the aforementioned negative criteria. N.J.S.A. 40:55D-70(d).
any regulation pursuant to article 8 of this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, [the board of adjustment shall have the power to] grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship; (2) where in an application or appeal relating to a specific piece of property the purposes of this act . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, [the board of adjustment shall have the power to] grant a variance to allow departure from regulations pursuant to article 8 of this act . . . .
[N.J.S.A. 40:55D-70(c).]
Here, the Board granted variances for lot area, lot depth, front yard setback, side yard setbacks, rear yard setback, building coverage, landscape buffer, lack of curbing in a parking lot and a non-asphalt parking area. In its resolution, the Board noted that the property is an "isolated undersized lot with existing development." The Board stated that the property is "unique" because it borders the Tuckahoe River and is constrained by "exceptional topographic and physical conditions." The Board determined that, because "no additional land is available for purchase," T&R would suffer undue hardship if the zoning restrictions in the ordinance were strictly applied.
Thus, the Board found that the bulk variances could be granted pursuant to N.J.S.A. 40:55D-70(c)(1). Alternatively, the Board concluded that the variances could be granted pursuant to N.J.S.A. 40:55D-70(c)(2), because the proposed development would
[s]atisf[y] the purposes of zoning by promoting the public health, safety and general welfare, securing the area from flood, provid[ing] for adequate light, air and open space, promot[ing] the establishment of appropriate population densities, provid[ing] sufficient space in appropriate locations for a variety of residential, recreational and commercial uses, promot[ing] a desirable visual environment and promot[ing] the conservation of natural resources.
We are convinced that the evidence presented before the Board provided ample factual support for its findings. Moreover, there was insufficient evidence to show that grant of the variances would be detrimental to plaintiff's quiet use and enjoyment of his property, or that it would diminish the property's value. There also was no evidence that the grant of the variances would be contrary to the location's designation as part of a Wild and Scenic River area.
Plaintiff argues that "there is simply no reason why the structure could not be more centrally located so as to relieve the extensive bulk variance relief granted." However, an applicant may demonstrate grounds for grant of a variance under N.J.S.A. 40:55D-70(c) even though the land could have been developed in accordance with existing regulations. Lang v. Zoning Bd. of Adjustment of North Caldwell, 160 N.J. 41, 55-56 (1999). Here, the Board found that T&R would suffer undue hardship if it could not develop the property as proposed, due to its unique conditions. The record supports that finding.
We conclude that the trial court correctly determined that the Board's grant of the bulk variances was not arbitrary, capricious or unreasonable.
C. Public Landing.
Plaintiff further argues that T&R's application should not have been granted because the property includes a "public landing" purportedly established by a former owner of the property. Plaintiff says that in 1910, the property's owner filed a map creating a "public landing." He says the public has had access to the water from the property for more than one hundred years.
In its opinion, the trial court noted that a 1990 deed to the former owners of the property included an area known as a "public landing" on a plat presumably of record. The court stated, however, that T&R's principal had performed a title search, which did not indicate that the property was ever formally dedicated as a "public landing." The court added that "any concerns regarding the public's access to the Tuckahoe River have already been addressed" since the proposed use of the site as a marina would allow public access to the river from the property.
Plaintiff argues that the trial court erred by treating a "public landing" as one in which the land is owned by the government. He also contends that the court erred by relying upon the statements of T&R's principal regarding his title search. Plaintiff says T&R's principal may not have reviewed all of the deeds in the chain of title.
We are convinced that the trial court correctly found that, even if a prior map had been filed with reference to a "public landing" on the property, this did not preclude the Board from granting T&R's application to develop the property as proposed. As the trial court stated, the proposed use of the site will be in the public interest and will allow public access to the river. Moreover, the proposed use is consistent with its prior use as a marina.
Affirmed I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION