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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3114-14T3
DR. AURORA BAIRAN,
Plaintiff-Respondent,
v.
BOROUGH OF CLOSTER ZONING
BOARD OF ADJUSTMENT,
Defendant-Appellant.
_____________________________________________
Argued October 26, 2016 – Decided November 21, 2017
Before Judges Fuentes, Simonelli and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-4268-14.
Michael B. Kates argued the cause for
appellant (Kates Nussman Rapone Ellis & Farhi,
LLP, attorneys; Mr. Kates, of counsel and on
the brief).
Andrew S. Kohut argued the cause for
respondent (Wells, Jaworski & Liebman, LLP,
attorneys; Mr. Kohut, on the brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
Defendant Borough of Closter Zoning Board of Adjustment
(Board) appeals from a February 26, 2015 Law Division order, which
reversed the Board's denial of plaintiff Aurora Bairan's use
variance application for her property located on Harrington Avenue
in Closter. After reviewing the record and applicable legal
principles, we reverse.
I.
We glean the following facts from the record. The property
is a long, narrow lot, measuring forty feet in width and 224 feet
in depth. It contains three separate buildings located one behind
the other, designated as Building A, B, and C. Building A fronts
along Harrington Avenue and has two second-floor residential
units, a first-floor commercial storefront tenant facing the
street, and, in the rear, a first-floor 368 square foot residential
unit which is the subject of this appeal. Building B is set back
approximately three to four feet behind Building A and has two
residential units. Building C is a single-family dwelling located
in the rear of the property. In total, there are six residential
units and one commercial space on the property. Between Building
B and C is a paved area, which is used as a parking area for the
tenants.
Plaintiff has owned the property since 1985 and has
continuously used it in the same manner in which it had been used
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well before her ownership. On October 26, 2011, following an
investigation into various zoning deficiencies, the Borough's
Zoning Officer denied plaintiff's continued use of the property
in the same manner it had been used, and directed plaintiff to
file an application with the Board for relief. Pursuant to
N.J.S.A. 40:55D-70(a), plaintiff appealed the Zoning Officer's
decision to the Board and sought either confirmation that the
existing uses of multiple structures on one lot were legally
existing, nonconforming structures and uses pursuant to N.J.S.A.
40:55D-68, or, in the alternative, use and bulk variances pursuant
to N.J.S.A. 40:55D-70(d), sanctioning the existing uses and
structures as they had existed since at least 1985 when plaintiff
acquired the property.
On December 18, 2013, the Board voted to sanction the three
buildings and five of the six residential units on the ground that
they predated the Borough's 1940 zoning ordinance, and their
nonconforming status was therefore protected under N.J.S.A.
40:55D-68. The Board noted that the property is located in the
Borough's District No. 3 "Business Area[,]" which permits "one-
and two-family" residential dwellings "as well as retail
commercial uses." Although District No. 3 "clearly permits and
anticipates mixed commercial/residential buildings[,]" no "more
than two" residential units are permitted "in one building, with
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or without a commercial use as well." Therefore, the Board
concluded that while "[t]he one[-]family use" in Building C and
"[t]he two-family use" in Building B were "permitted[,]" Building
A was "non-conforming based on the presence of three [residential]
dwellings[,]" which is prohibited in that zone. Accordingly, as
to the 368 square foot first-floor residential unit in Building
A, the Board unanimously upheld the Zoning Officer and denied the
unit historical recognition because plaintiff was unable to
provide evidence of its pre-zoning existence.
The following month, plaintiff requested a use variance under
N.J.S.A. 40:55D-70(d)(1) to allow her to continue to use the unit
as the third residential unit in Building A and sixth residential
unit on the property. Plaintiff also sought a parking space
variance, allowing her to provide only seven parking spaces where
sixteen were required, and approval of an amended site plan for
improvements recommended by the Board.
At the January 15, 2014 hearing on the use variance, plaintiff
testified in support of her application along with two expert
witnesses, Michael Hubschman and Steve Lydon. There were no
objectors at the hearing. Plaintiff testified that during her
ownership of the property, the residential unit had been regularly
occupied without any complaints regarding nuisances, parking, or
ingress and egress of the property. Further, plaintiff received
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no inquiries about using the unit for commercial purposes and did
not believe the unit was a suitable space for commercial use given
its location.
Hubschman, a licensed civil engineer, opined that due to the
narrow passageway for vehicles to access the building, the unit
is better suited for residential purposes to avoid the additional
traffic attendant to commercial use. Hubschman acknowledged,
however, that there was a municipal parking lot approximately 100
feet from the property and street parking available. In addition,
after describing how the unit is separated from the rest of
Building A, Hubschman explained that combining the unit with the
existing commercial space was illogical because it could not be
done without removing and relocating the existing stairwell
leading to the second floor, or remodeling the existing foyer. He
admitted, however, that it was possible to have "two side-by-side
stores[.]" Much of Hubschman's rationale supporting the continued
residential use of the unit was predicated on the fact that the
unit had functioned in that capacity for over thirty years.
Lydon, plaintiff's second expert witness and a licensed
professional planner, opined that the residential use of the unit
was "a better fit[,]" and promoted Smart Growth principles by
providing affordable housing and opportunities to live near the
Borough's downtown and public transportation. According to Lydon,
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the "master plan" and the "land use plan" were reexamined in 2008,
"and the reexamination report recommend[ed] allowing residential
apartments over ground floor retail as an inducement to improve
and retenant ground floor retail spaces." Lydon acknowledged that
the current application does not "squarely meet the recommendation
of the master plan because it is a first floor residential space
. . . , not a second floor[.]" However, he believed that "the
overall intent of having mixed uses in downtown is furthered by
this application[,]" even if "not exactly as laid out by the
[B]orough."
Lydon disagreed with the Board Chairman that the "quality of
life" issues associated with a "first floor" apartment "on [M]ain
[S]treet[,]" including engine fumes, "traffic going by[,]"
"noise," "security concerns," and the elevated "density factor,"
were legitimate concerns. Lydon explained that although Building
A is "the only building that's readily visible from the street[,]"
the unit's location in the rear of Building A gives it no presence
along Harrington Avenue. According to Lydon, while the lack of
street presence is not suitable for commercial purposes, it is
ideal for residential use.
Lydon also testified that given the unit's proximity to the
five other residential units, using the unit as a residential
space was compatible with all of the other uses in the rear of the
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property. Lydon went on to say that converting the unit to
commercial space would most likely exacerbate internal traffic and
safety concerns, whereas the residential use limited the amount
of traffic generated. Lydon also agreed with Hubschman that,
"from a site layout perspective[,]" the unit could not be
reasonably adapted into a "commercial space[,]" and, given the
glut of commercial space available in the Borough, transforming
the unit into commercial space, with its significant physical
constraints, would not benefit the Borough. Lydon pointed to the
property's "very high occupancy rate" to "demonstrate[] a need for
this type of use, a small apartment, in this particular location."
Lydon opined that overcoming the physical limitations
inherent in the building to convert the space to commercial use
would cause "undue hardship, which is a basis under the Municipal
Land Use Law for the granting of a use [variance] application[.]"
Lydon concluded that allowing another residential unit would have
little to no impact on the neighborhood given its compatibility
with the surrounding area, particularly since residential uses are
already permitted in the zone, the property was developed long
before the adoption of the Borough's Zoning Ordinance or Master
Plan, and residential use "work[ed] well" for the last thirty
years.
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Following the hearing, the use variance failed to achieve the
super-majority of five votes mandated by N.J.S.A. 40:55D-70(d).
The vote was four in favor of granting the use variance and three
against. Because the use variance was denied, the Board did not
vote on the parking space variance or the amended site plan. The
memorializing resolution, adopted on April 16, 2014, identified
the exhibits, summarized some of the testimony, and recited the
applicable law. The resolution acknowledged that plaintiff
proffered proofs through Lydon's testimony that her "application
advances the promotion of the general welfare by providing
sufficient space in appropriate locations for a variety of uses,
including residential and commercial[.]" However, the resolution
indicated the Board could not "conclude[] that [plaintiff] would
face 'undue hardship'" if it "disallowed" the ground floor
residential unit in Building A. On the contrary, because Building
A had "none of the[] deficiencies" present in Buildings B and C
that would preclude commercial use, it could "accommodate a
conforming commercial use[,]" and "it is on this basis that three
Board members opposed a ground floor residential use" in Building
A.
On May 6, 2014, plaintiff filed a complaint in lieu of
prerogative writs in the Law Division challenging the Board's
denial. The trial court conducted a bench trial on the record
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below on December 8, 2014. On February 10, 2015, the court issued
a written decision reversing the Board's denial of the use variance
and entering judgment in favor of plaintiff. The court concluded
that "the Board ha[d] not based its conclusions in the Resolution
on evidence in the record." The court explained:
In the instant matter, the court finds
the Planning Board acted in an arbitrary,
capricious and unreasonable manner regarding
the [a]pplication. Further, plaintiff has met
her burden under N.J.S.A. 40:55D-70.
Plaintiff has demonstrated that she would
suffer an undue hardship if she is compelled
to make the unit suitable for commercial use.
Also, the site is particularly suitable for
residential use. The unit is not visible from
the street[,] and residential use is
compatible with other uses in the rear of the
[p]roperty.
Additionally, plaintiff has proven that
residential use of the unit does not create a
substantial detriment to the public good, and
the intent and purpose of the zone plan and
zoning ordinance will not be substantially
impaired. There are no objecting neighbors
or community members, and residential use is
consistent with surrounding property use.
Further, defendant has not presented any
compelling evidence as to why a variance
should not be granted in this instance. The
unit has been utilized as an apartment for
over thirty years, and it has not interfered
with the nature or intent of the zoning
ordinance or plan. No evidence has been
presented by defendant proving a deleterious
effect on the community. Furthermore, no
evidence has been presented to support the
findings made in the resolution. The decision
of the Board must be based on evidence before
it. Such was not done here.
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The court entered a memorializing order on February 26, 2015, and
this appeal followed.
II.
On appeal, the Board raises the following points1 for our
consideration:
POINT I
DUE DEFERENCE WAS NOT PAID TO THE BOARD.
POINT II
ON THE SINGULAR VOTE IN ISSUE, PLAINTIFF DID
NOT MEET THE STATUTORY CRITERIA UNDER N.J.S.A.
40:55D-70(d)(1).
POINT III
THE TESTIMONY OF PLAINTIFF'S EXPERT WITNESSES
CONCERNING THE PROHIBITIVE COST OF CONVERTING
FROM RESIDENTIAL TO COMMERCIAL USE WERE[] "NET
OPINIONS" AND THUS COULD BE IGNORED.
We begin with the standard of review. We apply the same
limited standard of review as the trial court when reviewing a
zoning board's decision to grant or deny a variance. Bressman v.
Gash, 131 N.J. 517, 529 (1993); D. Lobi Enters., Inc. v.
Planning/Zoning Bd. of Borough of Sea Bright, 408 N.J. Super. 345,
360 (App. Div. 2009). As such, "when a party challenges a zoning
board's decision through an action in lieu of prerogative writs,
1
We have condensed the points raised by defendant for clarity.
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the zoning board's decision is entitled to deference." Kane
Props., LLC v. City of Hoboken, 214 N.J. 199, 229 (2013). "Its
factual determinations are presumed to be valid[,] and its decision
to grant or deny relief is only overturned if it is arbitrary,
capricious or unreasonable." Ibid. (citing Burbridge v. Twp. of
Mine Hill, 117 N.J. 376, 385 (1990)).
A "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." Price v. Himeji,
LLC, 214 N.J. 263, 284 (2013) (citing Cell S. of N.J., Inc. v.
Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002)). "[Z]oning
boards, 'because of their peculiar knowledge of local
conditions[,] must be allowed wide latitude in the exercise of
delegated discretion.'" Ibid. (quoting Kramer v. Bd. of
Adjustment, 45 N.J. 268, 296 (1965)). To that end, we extend even
greater deference to a zoning board's decision to deny a variance
in preservation of a zoning plan than to a decision to grant a
variance. Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd.
of Adjustment, 361 N.J. Super. 22, 38 (App. Div. 2003). However,
where the issue on appeal involves a purely legal question, this
court affords no special deference to the trial court's or zoning
board's decision, and instead must determine if the board
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understood and applied the law correctly. See D. Lobi Enters.,
supra, 408 N.J. Super. at 351-52.
Under N.J.S.A. 40:55D-70(d)(1):
The board of adjustment shall have the power
to:
. . . .
In particular cases for special reasons, grant
a variance to allow departure from . . . this
act to permit: (1) a use or principal
structure in a district restricted against
such use or principal structure . . . . A
variance under this subsection shall be
granted only by affirmative vote of at least
five members, in the case of a municipal
board[.]
Where a zoning board has denied a variance, the applicant must
prove that the evidence before the board was "overwhelmingly in
favor of the applicant." Nextel, supra, 361 N.J. Super. at 38
(quoting Ne. Towers, Inc. v. Zoning Bd. of Adjustment, 327 N.J.
Super. 476, 494 (App. Div. 2000)). "As is evident, the burden on
a variance applicant is not insignificant[,]" Nuckel v. Borough
of Little Ferry Planning Bd., 208 N.J. 95, 102 (2011), "because
the grant of a use variance always represents an exception to the
generally applicable zoning scheme[.]" Price, supra, 214 N.J. at
286.
An applicant seeking a use variance must demonstrate "special
reasons" — commonly referred to as the positive criteria — why the
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variance should be granted. N.J.S.A. 40:55D-70(d)(1). "Special
reasons" are those that promote the general purposes of zoning,
enumerated in N.J.S.A. 40:55D-2. Burbridge, supra, 117 N.J. at
386 (citing Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 276 (1967)).
"Special reasons" generally fall into one of three categories:
(1) [W]here the proposed use inherently serves
the public good, such as a school, hospital
or public housing facility, see [Sica v. Bd.
of Adjustment of Wall, 127 N.J. 152, 159-60
(1992)]; (2) where the property owner would
suffer "undue hardship" if compelled to use
the property in conformity with the permitted
uses in the zone, see Medici v. BPR Co., 107
N.J. 1, 17 n.9 (1987); and (3) where the use
would serve the general welfare because "the
proposed site is particularly suitable for the
proposed use." [Smart SMR of N.Y., Inc. v.
Borough of Fair Lawn Bd. of Adjustment, 152
N.J. 309, 323 (1998).]
[Saddle Brook Realty, LLC v. Twp. of Saddle
Brook Zoning Bd. of Adjustment, 388 N.J.
Super. 67, 76 (App. Div. 2006).]
An applicant for a use variance must also satisfy what are
known as the "negative criteria." Specifically, an applicant must
show that the variance "can be granted without substantial
detriment to the public good," and that "the variance 'will not
substantially impair the intent and the purpose of the zone plan
and zoning ordinance.'" Price, supra, 214 N.J. at 286 (quoting
N.J.S.A. 40:55D-70). "The showing required to satisfy the first
of the negative criteria focuses on the effect that granting the
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variance would have on the surrounding properties." Ibid. (citing
Medici, supra, 107 N.J. at 22 n.12). "The proof required for the
second of the negative criteria must reconcile 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). This requires, "in addition to proof of
special reasons, an enhanced quality of proof and clear and
specific findings by the board of adjustment that the variance
sought is not inconsistent with the intent and purpose of the
master plan and zoning ordinance." Medici, supra, 107 N.J. at 21.
A zoning board "acts as a quasi-judicial body. As such, it
is called upon to become involved in a weighing process, much like
a court, before determining whether the positive and/or negative
criteria have been met." Price Co. v. Zoning Bd. of Adjustment
of Twp. of Union, 279 N.J. Super. 207, 209 (App. Div. 1994).
Here, defendant argues the court erred in concluding that the
Board's "denial was arbitrary, capricious or unreasonable" and
"unsupported in the record." We agree. The minority Board members
opposed the variance because plaintiff failed to satisfy the
affirmative criteria, specifically, undue hardship and site
suitability. The Board members rejected plaintiff's assertion
that overcoming the physical limitations inherent in the building
14 A-3114-14T3
by relocating the stairwell or remodeling the foyer would cause
undue hardship. That determination was supported by Hubschman's
acknowledgement that it was possible to have "two side-by-side
stores[.]" Proof of undue hardship requires proof "that the
property is not reasonably adapted to a conforming use[.]" Medici,
supra, 107 N.J. at 17 n.9. Plaintiff failed to make the requisite
showing here.
Likewise, the Board members concluded that Building A was
particularly well-fitted for an additional commercial, rather than
residential, unit because it had none of the "deficiencies" present
in Buildings B and C. According to Lydon, the fact that Buildings
B and C were not visible from the street and had limited parking
and vehicular access made those buildings particularly unsuitable
for non-residential uses. In contrast, Building A had none of
those deficiencies, making it suitable for non-residential use.
While "almost all lawful uses of property can be said to promote
the general welfare to some degree, . . . any application for a
use variance based on the particularly suitable standard has always
called for an analysis that is inherently site-specific." Price,
supra, 214 N.J. at 288.
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
15 A-3114-14T3
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.
[Id. at 292-93.]
Here, plaintiff's proofs fell short of meeting that test, and the
record supports the Board's rationale.
In short, plaintiff failed to show the necessary positive
criteria and failed to overcome the presumption of validity
afforded the Board's decision. We find adequate support in the
record for the Board's conclusions and no support for the court's
determination that the Board's decision was arbitrary, capricious,
or unreasonable. Accordingly, we reverse the Law Division order
and reinstate the Board's resolution denying the use variance. In
light of our conclusion, we need not reach the Board's remaining
contentions that the court erroneously shifted the burden of proof
to defendant and that the Board was not required to accept the net
opinions offered by plaintiff's experts.
Reversed.
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