Opinion
DOCKET NO. A-0881-12T3
06-13-2014
LEAF INDUSTRIES, Plaintiff-Respondent, v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF SAYREVILLE IN THE COUNTY OF MIDDLESEX, Defendant-Appellant.
Lawrence B. Sachs, attorney for appellant. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., attorneys for respondent (Anthony B. Vignuolo and Anthony T. Betta, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2664-11.
Lawrence B. Sachs, attorney for appellant.
Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., attorneys for respondent (Anthony B. Vignuolo and Anthony T. Betta, on the brief). PER CURIAM
Defendant Board of Adjustment of the Borough of Sayreville (the Board) appeals from the September 6, 2012 Law Division judgment declaring that plaintiff Leaf Industries' "proposed use of warehouse storage and development" at its property in Sayreville is a permitted use. We affirm.
I
Leaf is the owner of land located in Sayreville's Jernee Mill Road Redevelopment Area. Leaf acquired the property pursuant to a settlement agreement between Jersey Cooperage and the Sayreville Economic Redevelopment Agency (SERA). Before Leaf can be named redeveloper of the land by the SERA, and, thereby, begin the process of obtaining development approvals, it was required to obtain a proper declaration that its proposed use is permitted.
The Jernee Mill Road Redevelopment Area was created by the Jernee Mill Road Redevelopment Plan (the Redevelopment Plan). The Redevelopment Plan provides that "warehousing and indoor storage, excluding bulk fuel storage" is a permissible use, and "outdoor storage" is an accessory use. However, the Redevelopment Plan sets forth that:
No materials, supplies, or equipment, including trucks or other motor vehicles, shall be stored upon a site except inside a closed building or behind a durable material wall not less than six (6) feet in height screening such materials, supplies, or vehicles from adjacent sites so as not to be visible from neighboring properties and streets. Any outdoor storage areas shall be located within the rear portions of a site. No storage areas may extend into a setback area. Temporary storage transportables shall not be permitted.
On September 21, 2010, Leaf wrote Sayreville's zoning officer, Andrew Mashanski, requesting whether the proposed use of its land for a warehouse was permitted. Mashanski sought additional information about Leaf's proposal while explicitly indicating that
this office is familiar with the operations of Jersey Cooperage on River Road. A further detail as requested, along with any described similarities associated with the River Road site would greatly assist in providing a determination.
On November 29, 2010, Mashanski sent a terse letter to Leaf's attorney stating:
[T]his office takes the position the proposed uses as described are NOT in accordance with the Jernee Mill Road Redevelopment Plan. If you are not satisfied with this determination, you may file an appeal to the Borough's Zoning board of Adjustment.
In January 2011, Leaf filed a written application with the Board for an interpretation pursuant to N.J.S.A. 40:55D-70(b). At the hearing conducted on March 23, 2011, Leaf's attorney asserted that his client was also pursuing "an appeal of the decision of Mr. Mashanski relative not to the zoning ordinance but to the Jernee Mill Road [R]edeveloment [P]lan which you are permitted to interpret as you do your zoning ordinance."
The presentation to the Board consisted of documents, the attorney's arguments, and the Borough Engineer's comments. Lea proposed to use its property — as indicated in its application — for "(1) Warehouse Distribution/Flex buildings." Instead of focusing upon the question of whether these proposed uses were permitted, the Board focused on the outdoor storage of trailers. In rendering its decision, the Board treated the application as one proposing "outdoor trailer storage and flex warehousing." Agreeing with Mashanski's determination, the Board found that the "proposed use of the property for outdoor trailer storage is not permitted" because "the existence of outdoor storage trailers on site violates the specific prohibitions contained in the Jernee Mill Road Redevelopment Area Ordinance which does not permit the use of temporary storage transportables." No decision was rendered about the proposed warehouse distribution use.
On April 8, 2011, Leaf filed a complaint in lieu of prerogative writs, challenging the decision of the Board that the proposed use was not permitted. On September 6, 2012, Judge Vincent LeBlon issued an opinion, which granted Leaf's motion for judgment and found that the property's proposed primary use as a warehouse was permissible under the Redevelopment Plan. The judge further concluded that the Board's decision was arbitrary and capricious because it went beyond the limited issue presented by Leaf:
The transcript of the Board's hearing clearly demonstrates that there was aAn order memorializing the decision was entered the same day. This appeal followed.
manifest abuse of the Board's discretionary authority. The Board incorrectly considered and decided the matter based upon development issues which were not before it. The Redevelopment Plan clearly and unambiguously allows for warehousing and indoor storage, which was the primary use asserted by [Leaf] . . . . Any issues regarding outdoor storage should have properly been addressed as development issues, at such time as [Leaf] is named as a redeveloper by SERA, as noted by the Borough Engineer. Accordingly, judgment is entered in favor of [Leaf] and the Court finds that the proposed use of warehouse storage and development is permitted under the Jernee Mill Road Redevelopment Plan.
II.
On appeal, the Board presents the following issues for our consideration:
POINT I: THE TRIAL COURT FAILED TO RECOGNIZE THAT APPELLANT'S DECISION WAS PRESUMED TO BE VALID AND THEREFORE SHOULD HAVE BEEN SUSTAINED.We conclude that none of these arguments is persuasive, and affirm substantially for the reasons expressed by Judge LeBlon. We briefly add only the following.
POINT II: THE TRIAL COURT FAILED TO RECOGNIZE THAT RESPONDENT FAILED TO PRODUCE ANY LAY AND/OR EXPERT WITNESSES TO SUPPORT ITS CASE.
POINT III: APPELLANT'S INTERPRETATION OF THE JERNEE MILL ROAD REDEVELOPMENT PLAN TO SUPPORT THE DECISION OF THE BOROUGH ZONING OFFICER WAS PROPER.
POINT IV: RESPONDENT'S CONTENTIONS THAT BOROUGH PROFESSIONALS PROVIDED UNSWORN TESTIMONY IS IMPROPER.
POINT V: THE SEPTEMBER 6, 2012 TRIAL COURT'S DECISION IS FLAWED IN ITS CONCLUSIONS.
Although we owe deference to the Board's decision on factual determinations supported by the record, no such deference is owed to the Board's determination of a legal issue. Reich v. Borough of Fort Lee Zoning Bd. of Adjustment, 414 N.J. Super. 483, 499 (App. Div. 2010). The interpretation of whether Leaf's proposed use is permitted by the Redevelopment Plan is reviewed de novo because it "is a purely legal matter as to which the [Board] has no particular skill superior to the courts." Ibid. (internal quotation and citation omitted).
We are firmly in agreement with the view that Leaf's proposed development plan presented a permitted primary use. The other issues raised by the Board were extraneous surplusage beyond the scope of what Leaf presented in its request for an interpretation and appeal from the zoning officer's decision.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION