The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4349-15T3
RICHARD BARNASKAS and TERRI
BARNASKAS, his wife,
Plaintiffs-Appellants,
v.
ZONING BOARD OF ADJUSTMENT
OF THE TOWNSHIP OF JACKSON
and MIB PROPERTIES, LLC,
Defendants-Respondents.
_______________________________
Argued February 15, 2018 – Decided August 2, 2018
Before Judges Haas, Rothstadt and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No.
L-1637-15.
Edward F. Liston, Jr., argued the cause for
appellants.
Sean D. Gertner argued the cause for
respondent Zoning Board of Adjustment of the
Township of Jackson (Gertner & Gertner, LLC,
attorneys; Sean D. Gertner, on the brief).
Robert C. Shea argued the cause for respondent
MIB Properties, LLC (R.C. Shea & Associates,
PC, attorneys; Robert C. Shea and Dina M.
Vicari, on the brief).
PER CURIAM
Plaintiffs Richard and Terri Barnaskas appeal from the May
6, 2016 Law Division order, dismissing their complaint with
prejudice. In so doing, the trial court affirmed the decision of
defendant Zoning Board of Adjustment of the Township of Jackson
(Board), approving the application of defendant MIB Properties,
LLC (MIB) for a use variance along with preliminary and final
major site plan approval. We affirm.
To place the current appeal in context, a brief history of
the property is necessary. The subject property is located along
and to the east of Cooks Bridge Road in Jackson, New Jersey. The
property was originally a single parcel identified as Block 14801,
Lot 5, consisting of approximately seven acres located in a planned
retirement community (PRC) zone and owned by U.S. Home Corporation.
Lot 5 was eventually conveyed to Manhattan Real Estate (MRE),
which, in 2008, applied for a "use variance with preliminary/final
site plan approval to construct an office park, including office
buildings, a nursery school[,] and [a] bank . . . ." In an amended
application, MRE sought to
proceed[] with its presentation on a
bifurcated basis, seeking only a determination
. . . as to its use variance to permit a bank
. . . on approximately 1.2 acres . . . and
2 A-4349-15T3
reserving issues relating to a full site plan
for the entire tract for a later application,
such issues to include the use of the
remaining parcel for age-restricted
development.
In Resolution 2008-36, adopted on August 6, 2008, the Board
approved the application, subject to various conditions,
including: 1) MRE agreeing to erect a bank on 1.2 acres of the
site, "leaving the approximate six . . . remaining acres for
subsequent development for an age-restricted residential
development"; and 2) MRE agreeing that "it must receive preliminary
and final site plan approval for the complete project . . . within
one . . . year, at which time the use variance granted herein
shall expire."
Subsequently, MRE sought "an amended preliminary and final
site plan approval for the construction of a bank on the site, and
preliminary approval for the construction of age-restricted
condominiums." On January 21, 2009, in Resolution 2009-02, the
Board approved MRE's application for the subdivision of Lot 5
subject to several conditions, including MRE "commenc[ing]
construction of the condominiums within five years of the date of
this resolution." The Resolution specified that "[f]ailure to do
so [would] result in a nullification of any variances granted by
this Resolution to enable [MRE], or its successors, to construct
condominiums on the subject property." Thereafter, Lot 5 was
3 A-4349-15T3
subdivided into Lots 5.01, where the proposed bank would sit, and
Lot 5.02 where the age-restricted condominiums would be
constructed.
After Resolution 2009-02 was issued, Lot 5.02 was sold to
MIB. On December 23, 2014, MIB filed an application for a
preliminary and final major site plan with "d" and "c" variance
relief pursuant to N.J.S.A. 40:55D-70 to construct a funeral home
with accessory uses, to include a residential apartment, banquet
space and office space. Funeral homes were not a permitted use
in the PRC zone. However, under N.J.S.A. 40:55D-70(c)(1), the
Board had the power to grant a variance
[w]here: (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 of any
regulation pursuant to [the Municipal Land Use
Law (MLUL)] would result in peculiar and
exceptional practical difficulties to, or
exceptional and undue hardship upon, the
developer of such property . . . .
Under N.J.S.A. 40:55D-70(d)(1), "[i]n particular cases for
special reasons," the Board had the power to grant a variance "to
allow departure from regulations pursuant to [the MLUL] to permit
4 A-4349-15T3
. . . a use or principal structure in a district restricted against
such use or principal structure[.]" However,
No variance or other relief may be granted
under the terms of this section, . . . without
a showing that such variance or other relief
can be granted without substantial detriment
to the public good and will not substantially
impair the intent and the purpose of the zone
plan and zoning ordinance.
[Ibid.]
On February 21, 2015, MIB provided notice of its application
in the Asbury Park Press, including a description of the project
and the requested variances as well as a list of documents and
plans on file with the Board and available for public inspection.
MIB also sent notices to all property owners within 200 feet of
the subject property. On March 4, 2015, the Board conducted its
first public hearing on MIB's application, which was attended by
the Board's professionals and during which members of the public
opposed the application. To support its application, MIB presented
expert testimony from its project architect, engineer and planner,
and traffic engineer, along with testimony from its owner,
providing an overview of the project as well as the operation of
the proposed development.
In essence, MIB sought to construct a funeral home that
"incorporate[d] a whole variety of different uses under the roof
of a funeral home." MIB's owner, Geraldine Oliverie Hennicke, a
5 A-4349-15T3
Funeral Director since 1987, testified that her vision of the
funeral home was "cutting edge of what [was] happening in the
states around us where they [are] encompassing everything under
one roof to satisfy the needs of the families and clients from
pre-arrangements to . . . repass."
The Board's professional planner added that MIB's funeral
home was the principal use with "a number of customarily incidental
accessory uses inside the building." John Amelchenko, MIB's
architect, agreed that the funeral home was "designed to really
function as a self-contained facility" with accessory uses for the
"convenience [of] the friends and family of the deceased." He
testified about the novelty of the concept, stating "[i]t [was]
not your father's funeral home" but "a trend in funeral home design
that is . . . happening all over . . . the country." Amelchenko
explained that the approximately 19,000 square foot building was
designed with complex roof lines, to "soften[] . . . the overall
size of the building[,]" along with "white trim, white columns,
cupolas, copper roofs[,]" and "stone veneers," in an attempt to
provide a "residential quality[.]"
According to Amelchenko, the 14,000 square foot first floor
of the building would have three viewing rooms, capable of holding
eighty people each with a sitting area to provide a "residential
feel[]" complete with a fireplace, bookcases, and a television.
6 A-4349-15T3
There would also be two conference rooms used to meet with family
members of the deceased to make selections on caskets or urns.
According to Amelchenko, the other functional aspects of the
funeral home where the deceased would be received and prepared for
viewing were completely separated from the public portions of the
building to avoid contact with visitors.
Amelchenko explained that one of the accessory uses that the
funeral home would contain was a one-hundred-and-sixty-seat
banquet hall with a "warming kitchen" to hold post-funeral
repasses. According to Amelchenko, the banquet hall would not be
open to the general public, as if it were a restaurant, and,
instead, would be used "strictly for [the] repass[es.]" He
described the kitchen as designed to serve pre-prepared food,
rather than food prepared on site, "that passes through the
kitchen, gets prepped, and then is brought out into the banquet
facility." After the service, the family would access the banquet
hall for the catered meal through an atrium space.
In addressing health and safety concerns with having food
served in a funeral home, Hennicke explained that the building was
designed with an atrium in the middle and sets of doors separating
the banquet area to ensure that "food [would] never come in through
the funeral home." Amelchenko confirmed that the atrium space
separated the funeral home from the banquet facility and served
7 A-4349-15T3
as a sitting area with "a water feature" and "a large skylight
that will provide some natural light . . . ." Additionally,
according to Amelchenko, there would be a small retail area where
guests might be able to purchase some flowers, prayer cards, or
other "things of that nature."
Another accessory use identified for the funeral home by
Hennicke was a two-bedroom apartment for staff members "to be on
the premises [twenty-four] hours a day to answer the families'
needs[,]" as people can pass away at any hour of the day or night.
Noting that the funeral home's hours of operation would be from
8:00 a.m. to 10:00 p.m., Hennicke proposed that the apartment
would be occupied by her daughter and her daughter's fiancé, who
were both part of the business, as it was a "family owned and
operated" business.
MIB's application also included a nine-hundred square foot
office space on the second floor for "the purpose of having a
combination where an attorney and a financial advisor [would] work
with . . . [Hennicke] for Medicare spend downs" and purchasing
funeral services and crypts upfront. Acknowledging that she was
unable to provide the expert advice that a financial planner and
estate planning attorney could, Hennicke explained that MIB was
trying "to help families understand the laws and how to protect
their assets and what they can do and cannot do within the law."
8 A-4349-15T3
In addition, it was confirmed that "[t]his [was] not a situation
where the attorney [would] do personal injury or workers'
compensation, this [would] be affiliated with the funeral and the
funeral operation" to continue "the concept of one service under
one roof."
Supporting variance relief from the PRC zoning requirements,
MIB's project engineer and planner, Brian Murphy, delineated the
site plan and surrounding properties, including the Winding Ways
Retirement Community, and detailed the requested waivers and C1
and C2 variances connected with the PRC zone, including the needed
increased building height for the garage to accommodate the storage
of hearses. He agreed that the funeral home was the principal use
and that "[n]one of these other uses exist without it."
Murphy testified that the previously approved condominium
units envisioned a very "long building[,]" whereas the MIB proposal
had a "very residential look" and was an "attractive building."
He also found the funeral home to be particularly well suited for
the site and an appropriate use given the location of the property
and the other commercial uses in the area, particularly, the bank.
According to Murphy, it was "a good transition between [the]
residential use to the south and the bank [and municipal building]
which [were] to the . . . north and west."
9 A-4349-15T3
Murphy explained further that the use was appropriate for the
relatively small "size of the property only being [six] acres
where[as] 100 acres [were] required in a [PRC] zone." Furthermore,
he testified that the MIB proposal was a "less intense use on the
site" than the condominium units, because the condominium units
would involve vehicular access during peak hours, "unlike the
funeral home, which is off peak hours pretty much for the entire
use of the building."
Murphy testified that the project satisfied the statutory
requirements of N.J.S.A. 40:55D-2 in that the project provided
adequate light, air, and open space, while exceeding the 25% of
open space requirement. He explained that the way the building
was situated, "it [was] not a wall of building, rather . . . it
[was] nicely laid out with the atrium and all the windows, . . .
providing plenty of light into the facility." Additionally, Murphy
indicated the project provided sufficient space in the appropriate
locations for a variety of commercial and residential uses.
Further, he testified that the project "provide[d] a desirable and
visual development" with "a very attractive building for the
Township."
Murphy also addressed the negative criteria under N.J.S.A.
40:55D-70d(1), and determined that the funeral home would be an
improvement to the community. He invoked the Township's master
10 A-4349-15T3
plan, specifying that "[a] key goal [was] to work towards a
balanced community." Murphy indicated that "while the housing
stock [was] now more than balanced[,] . . . commercial and
industrial development need[ed] to be expanded to meet local
needs." To that end, he found that "this project in particular
exactly exemplifie[d] that goal." He testified that although
there had been approval for housing stock on the property, he did
not "believe it [was] all that viable[,]" as demonstrated by the
lack of development "in the last five, six years."
Murphy also stated that "[a] retirement community really [was
not] appropriate on such a small lot," and given that there was
"a lighted intersection and it would be sharing driveways with
another commercial use," he believed "the commercial use [was]
more conducive to this property." Murphy opined that the "benefits
of this project certainly outweigh[ed] any negatives" because it
supported the goals of the master plan, and he saw no negative
impact with the use, especially given the decrease in "traffic
impact than a permitted use would [be] on the property."
John Rea, MIB's traffic engineer, testified that the impact
of the funeral home "on peak hour traffic at the intersection of
Cooks Bridge Road and Manhattan Street" would "be less than what
was previously studied [for the 2008 application], and . . . the
intersection would operate acceptably." Rea opined that "the use
11 A-4349-15T3
variance [could] be granted . . . without having an adverse or
detrimental impact on traffic conditions." The Board's traffic
engineer reviewed Rea's reports and testimony and agreed with his
conclusions, indicating that he was "satisfied . . . [MIB could]
address the safety concerns as they have been laid out."
The Board scheduled an additional hearing date for April 1,
2015, in order to give more members of the public a chance to
speak, and the Board more time to consider the application.
Several members of the public, including plaintiff Terri
Barnaskas, testified at the hearing, opposing the application and
raising concerns about the adverse impact on traffic and home
values, garnering the necessary licensing from the applicable
licensing agencies, and housing as a preferred use of the site.
Following the hearings, by a majority vote, the Board approved
MIB's application for variances and design waivers along with
preliminary and final major site plan approval. On May 6, 2015,
the Board adopted Resolution 2015-21, memorializing its approval
for MIB to construct a "two-story structure for use as a funeral
home that will contain a total of 19,771 square feet which would
include related offices, rental offices, a banquet facility, an
apartment, paved parking lot with . . . 172 parking spaces, a
trash enclosure area and a detached garage."
12 A-4349-15T3
In the Resolution, the Board reviewed the history of the site
as well as the testimony and exhibits entered into the record.
The Board also addressed the positive and negative criteria for
the project, noting that "the parcel was substantially undersized
for the use for which it [was] zoned." Through its review, the
Board determined that MIB "established special reasons for the
grant of a variance pursuant to N.J.S.A. 40:55D-70(d)(1) in that
the site . . . [was] appropriate" for the proposed use
"notwithstanding the deviations from one or more of the conditions
imposed by the Land Use and Development Regulations of the
Township." Further, the Board determined that MIB "established
that development of the proposed use [would] not cause such damage
to the character of the surrounding neighborhood so as to
constitute substantial detriment to the public good nor . . .
substantially impair the intent and purpose of the zone plan and
zoning ordinance."
As to the negative criteria, the Board indicated that the
proposed construction had "an aesthetically pleasing design," and
MIB agreed "to obtain required approvals to address both better
signage and timing of the existing traffic signal," "to maintain
the existing open space requirement of a related parcel from a
previous approval," and to "improve[e] interior circulation . . .
as suggested by Board professionals." The Board imposed various
13 A-4349-15T3
conditions, however, including requiring MIB to obtain "approval
of all other outside agencies exercising jurisdiction in this
matter," and to "contact the Board of Mortuary Science and any
other State or County Agency having jurisdiction over the approved
use with ancillary uses . . . in order to assure that the regulatory
oversight agencies approve the design and use concept approved"
by the Board.
On June 10, 2015, plaintiffs filed a complaint in lieu of
prerogative writs, contending that the Board's decision was
arbitrary, capricious and unreasonable, and seeking to overturn
the Board's decision as against the weight of the evidence and the
law. On April 8, 2016, Judge Robert E. Brenner conducted a bench
trial on the record, and issued an oral opinion on April 27, 2016,
affirming the Board and dismissing plaintiffs' complaint with
prejudice. In rendering his decision, Judge Brenner addressed all
of the contentions in plaintiffs' complaint.
First, the judge rejected plaintiffs' contention that MIB was
bound by the condition to build age-restricted condominiums
imposed on former Lot 5 in the 2008 and 2009 Resolutions. Judge
Brenner reviewed Resolutions 2008-36 and 2009-02, in conjunction
with the history of former Lot 5 and the subsequent subdivision,
and concluded that the prior resolutions did not preclude the
Board from approving MIB's application. According to the judge,
14 A-4349-15T3
Lots 5.01 and . . . 5.02 are independent of
each other as a result of the previous
subdivision. The lots were developed at
different time periods and did not have common
zoning or construction permits. They're
currently owned by different entities. The
bank is constructed and has been operating for
many years. . . . Resolutions 2008-36 and
2009-02 do not permanently bind Lots 5.01 and
5.02 together and do not preclude the Board
from approving what I see as a new application
by MIB.
To support his conclusion, the judge explained that
Resolution 2009-02 indicated that MRE "requested two separate
reliefs in its applications because Lots 5.01 and 5.02 would
ultimately be subdivided and potentially owned by two different
owners." Accordingly, "the approvals on Lots 5.01 and 5.02 were
not contingent on each other because if they were[,] MRE would
have sought preliminary and final site plan approval for both lots
simultaneously." Moreover, Resolution 2009-02 provided an
explicit five-year limitation on the construction of the
condominium units and, according to Judge Brenner, "the failure
to do so resulted in a nullification of any variances granted by
the Resolution."
Next, Judge Brenner rejected plaintiffs' contention "that the
Board's approval of the accessory uses to the funeral home [were]
a nullity because MIB neither sought nor received variance relief
for what plaintiff[s] argue[] [were] separate principal uses."
15 A-4349-15T3
Judge Brenner explained that the banquet facility was "totally
associated with the funeral home and not to be used for outside
purposes but to be used only for [repasses]"; the two-bedroom
apartment was "to be occupied by the funeral home manager who
assist[ed] with the operation of the business or other employees
of the funeral home"; and the rental office space was to be used
"for the purposes of having an attorney and financial planner to
work with [Hennicke] for Medicare spend-downs and service as such."
Relying on State v. P. T. & L. Construction Company, 77 N.J. 20
(1978), the judge determined that "while the concept of providing
one location for all . . . funeral needs is something new and
trending, the law makes clear that that does not prevent this
[c]ourt from rendering its decision that these are accessory uses
to the principal . . . or primary use."1
Turning to plaintiffs' assertion "that the public did not
receive sufficient notice . . . that the rental offices were
separate principal uses[,] and . . . that MIB was seeking relief
from the conditions . . . allege[dly] contained in the 2008
Resolution[,]" Judge Brenner explained that plaintiffs did not
raise any notice deficiencies in their complaint and thus "the
1
Judge Brenner also rejected plaintiffs' contention that MIB
proposed a coffee-snack bar, finding that "[i]t was not part of
the record [and] . . . that the only food that will be on the
premises is in regard to the banquet facility."
16 A-4349-15T3
argument [was] not properly before the [c]ourt." Nonetheless, the
judge determined "that MIB's public notice complie[d] with
N.J.S.A. 40:55D-11." The judge elaborated that MIB's notice timely
and adequately conveyed the "date, time, and place of the hearing,
the nature of the matters to be considered, and an identification
of the property proposed for the development." The judge continued
that the notice "depict[ed] in detail the specific types of
variances sought," and "provided a specific list of items that
were on file with the Board and available for inspection." The
judge concluded that "[t]he public was not deprived of any
pertinent information."
Judge Brenner also rejected plaintiffs' contention "that the
Board lacked jurisdiction to reopen the hearing" on April 1, 2015.
The judge noted that when the March 4, 2015 hearing was opened for
public comment, the weather created a driving hazard "and many
members of the public who attended the meeting left early." As a
result, one of the Board members requested a continuance, stating
that there was "an awful lot of testimony" and "information to be
absorb[ed] in three hours." The Board member explained that he
did not "feel like [he was] ready to vote on this one way or the
other without thinking about what [he] heard[,]" and sought the
continuance to consider the proposal and also to permit members
of the public who had already left a chance to comment. Judge
17 A-4349-15T3
Brenner deferred to the Board's "broad discretion" and determined
that the circumstances constituted a proper justification to
reopen the hearing for an additional day, and that the Board acted
reasonably.
Finally, Judge Brenner rejected plaintiffs' contention that
"the variances should not have been granted on the record before
the Board." Instead, citing Kohl v. Fair Lawn, 50 N.J. 268 (1967)
and Burbridge v. Mine Hill, 117 N.J. 376 (1990), the judge found
that "MIB satisfied the positive criteria to support the Board's
granting of the use variance . . . ; that MIB satisfied the
negative criteria . . . ; and that the Board's determination to
grant the use variances [was] neither arbitrary nor capricious."
To support his decision, the judge detailed the expert testimony
presented by MIB, some of which was supported by the Board's
professionals, and concluded that MIB produced uncontroverted
expert testimony to support its application. The judge also
recounted the history of Lot 5, which included a 2002 settlement
agreement requiring the approval of the Winding Ways Retirement
Community Homeowners Association, which MIB had obtained. Thus,
the judge affirmed the decision of the Board and dismissed
plaintiffs' complaint with prejudice. This appeal followed.
On appeal, plaintiffs renew the arguments rejected by Judge
Brenner as follows:
18 A-4349-15T3
I. MIB NEVER SOUGHT, AND THE BOARD NEVER
GRANTED, RELIEF FROM THE CONDITIONS AGAINST
FURTHER COMMERCIAL DEVELOPMENT WHICH WERE
IMPOSED ON FORMER LOT 5 AS PART OF THE BANK
APPROVAL ON CURRENT LOT 5.01; ANY VARIANCE
RELIEF FOR COMMERCIAL DEVELOPMENT ON CURRENT
LOT 5.02 IS A NULLITY.
II. NEITHER THE PRACTICE OF LAW, NOR FINANCIAL
PLANNING, NOR POST-FUNERAL BANQUET HALL
RENTALS, NOR A COFFEE/SNACK BAR STORE, NOR THE
TWO-BEDROOM APARTMENT, CAN BE ACCESSORY TO A
FUNERAL HOME; SINCE MIB NEITHER SOUGHT NOR
RECEIVED VARIANCE RELIEF FOR THESE SEPARATE
PRINCIPAL USES, THE APPROVAL IS A NULLITY.
III. THE PUBLIC DID NOT RECEIVE SUFFICIENT
NOTICE THAT THE 'RENTAL OFFICES' WERE SEPARATE
PRINCIPAL USES, AND THE PUBLIC DID NOT RECEIVE
ANY NOTICE WHATSOEVER THAT RELIEF FROM THE
2008 CONDITIONS OF APPROVAL WERE SOUGHT; THE
BOARD'S DECISION IS NULL AND VOID FOR LACK OF
JURISDICTION.
IV. THE BOARD OF ADJUSTMENT'S INABILITY TO
DECIDE ON THE APPLICATION AFTER THE PROOFS
WERE CLOSED SHOULD HAVE RESULTED IN A DENIAL
OF THE APPLICATION; THE BOARD LACKED
JURISDCTION TO REOPEN THE PROOFS.
V. THE BOARD DID NOT HAVE SUFFICIENT RECORD
SUPPORT TO GRANT MIB'S APPLICATION; THE TRIAL
COURT ACCEPTED THE BOARD'S ERRONEOUS LEGAL
REASONING AND UNTENABLE FACTUAL FINDINGS.
We review a zoning board's decision using the same standard
as the trial court, Cohen v. Bd. of Adjustment of the Borough of
Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007), and, like
the trial court, our review is limited. Smart SMR of N.Y., Inc.
v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327
19 A-4349-15T3
(1998). We give deference to a zoning board's decision and will
only reverse if the decision was arbitrary, capricious, or
unreasonable. Kane Properties, LLC v. City of Hoboken, 214 N.J.
199, 229 (2013). However, where the issue on appeal involves a
purely legal question, we afford no special deference to the trial
court's or the zoning board's decision, and must determine if the
board understood and applied the law correctly. D. Lobi Enters.,
Inc. v. Planning/Zoning Bd. of the Borough of Sea Bright, 408 N.J.
Super. 345, 351-52 (App. Div. 2009).
In affording deference to the zoning board, a reviewing court
may not substitute its judgment for that of the municipal body.
Kramer v. Bd. of Adjustment, 45 N.J. 268, 296-97 (1965). As Justice
Long emphasized in Jock v. Zoning Bd. of Adjustment:
In the final analysis . . . public bodies,
because of their peculiar knowledge of local
conditions, must be allowed wide latitude in
their delegated discretion. The proper scope
of judicial review is not to suggest a
decision that may be better than the one made
by the board, but to determine whether the
board could reasonably have reached its
decision on the record.
[184 N.J. 562, 597 (2004) (citations
omitted).]
Consistent with this jurisprudential policy of deference to a
local board's peculiar knowledge of local conditions, "[a] court
should sustain a local zoning board's determination to grant a
20 A-4349-15T3
zoning variance if that board's decision comports with the
statutory criteria and is founded on adequate evidence [in the
record.]" Burbridge, 117 N.J. at 385. Applying the above
standards, we discern no reason to disturb the trial court's or
the Board's decision and affirm substantially for the reasons
expressed in Judge Brenner's cogent oral opinion. We add the
following comments.
We recognize that "[z]oning variances are often made subject
to conditions, contravention of which constitute violations of
land use ordinances." Washington Commons, LLC v. City of Jersey
City, 416 N.J. Super. 555, 560 (App. Div. 2010). The conditions,
like the variances themselves, run with the land and are binding
on subsequent owners. Aldrich v. Schwartz, 258 N.J. Super 300,
308 (App. Div. 1992).
Here, however, Resolution 2009-02 contained explicit
nullifying language, specifically, that any variances granted in
connection with the age-restricted condominiums would expire if
they were not constructed within five years. As such, the failure
to commence construction of the condominiums within the required
five years of the resolution nullified the variances. In addition,
we agree with Judge Brenner that Resolution 2009-02 clearly showed
that MRE requested two separate forms of relief. Thus, we reject
plaintiffs' contention that the Board's "failure to require [MIB]
21 A-4349-15T3
to apply for variance/changed-circumstances relief" from the
conditions imposed in the resolutions "deprived it of
jurisdiction."
Likewise, we reject plaintiffs' assertion that each of the
uses the Board and Judge Brenner deemed accessory to the principal
use were, in fact, principal uses that each required separate
requests for variance relief. Jackson Township Code Sec. 244-6
defines "Principal Use" as "[a] use of land, building or structure,
or portion thereof, allowed in a zoning district and subject to
the restrictions applicable to that district." An "Accessory Use"
is defined as "[a] use of land, or of a building or portion of a
building or of a structure . . . customarily incidental and
subordinate to the principal use . . . located on the same lot
with such principal use." Ibid.
Although "[z]oning ordinances frequently permit uses that are
accessory or incidental to an expressly permitted use[,] . . .
they often do not define those permitted accessory uses, and courts
must determine whether the proposed accessory use is 'customarily
incidental' to the main activity." Wyzykowski v. Rizas, 132 N.J.
509, 518 (1993). "[A]n accessory use is implied as a matter of
law as a right which accompanies the principal use." Shim v.
Washington Twp. Planning Bd., 298 N.J. Super. 395, 401 (App. Div.
1997). "Zoning ordinances which permit 'customarily incidental'
22 A-4349-15T3
accessory uses to the main activity permit, by implication, any
use that logic and reason dictate are necessary or expected in
conjunction with the principal use of the property." Charlie
Brown of Chatham, Inc. v. Board of Adjustment, 202 N.J. Super.
312, 323 (App. Div. 1985)).
"In analyzing whether a use is customarily incident to the
permitted use, two determinations must be made. The first is
whether the use is incidental to the main use: does the use bear
a close resemblance and obvious relation to the main use to which
the premises are put?" P. T. & L., 77 N.J. at 26-27 (alteration
omitted). "Second, it must be determined whether a use which is
found to be incident to the permitted use is also a customary
use." Id. at 27. "Generally, a use which is so necessary or
commonly to be expected that it cannot be supposed that the
ordinance was intended to prevent it will be found to be a
customary use." Ibid. "The fact that a use is not customarily
indulged in, however, is not conclusive, and even if the use in
question is found in a small percentage of similar main uses, the
use may still be found to be 'customary.'" Ibid.
Here, the funeral home is clearly the principal use and the
other proposed uses are "incidental and subordinate" to the funeral
home. The attorney's and financial planner's offices are to be
used only for the benefit of the funeral home's customers. They
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are not permitted to work on outside matters or have clients who
are not also clients of the funeral home.2 Likewise, the banquet
hall is not a restaurant and is not open to the general public for
dining. Indeed, its only purpose is to provide a banquet facility
for catered dining following a funeral.3
Similarly, the two-bedroom apartment to be used by MIB's
employees is incidental to the funeral home. In that regard,
Charlie Brown is distinguishable. There, we affirmed the Board's
denial of a variance for Charlie Brown's construction of second
floor apartments to provide sleeping accommodations for the
restaurant's personnel as part of the company's compensation
program. 202 N.J. Super. at 318-19. The Board denied the
application, which violated the zoning laws' prohibition against
residential uses mixed with commercial uses, finding that the use
did not constitute an accessory use. Id. at 318.
We affirmed because there was no proof presented that
providing employees with sleeping quarters on the premises of a
restaurant was reasonably related or incidental to its operation.
Id. at 324. In so doing, we viewed the term "incidental" in the
2
We leave to these two professionals the task of determining
whether this arrangement raises ethical concerns with their
respective licensing entities.
3
Like Judge Brenner, we reject plaintiffs' continued reference
to a snack bar as it is not part of the record.
24 A-4349-15T3
definition of "accessory use" to incorporate two concepts; the use
must be "subordinate and minor in significance" and must also bear
a "reasonable relationship with the primary use." Ibid. "It is
not enough that the use be subordinate; it must also be attendant
or concomitant." Ibid.
Here, MIB presented sufficient evidence that their employees
residing on site was directly related, subordinate and attendant
to the main permitted use of the property's operation as a funeral
home, as opposed to a part of MIB's compensation program. As
Hennicke pointed out, people do not die between normal business
hours and employees living on site would be able and available to
answer calls and assist families at any hour of the day or night.
Similarly, we reject plaintiffs' contention that the public
did not receive sufficient notice that the "rental offices . . .
were separate businesses," and "that the effect of MIB's
application was to seek relief from the conditions of Resolutions
2008-36 and 2009-2." Although this issue was not properly before
the trial court and, in turn, not properly before us, our decision
that the rental offices were permissible accessory uses and that
MIB was not required to seek relief from the conditions contained
in the prior resolutions render these contentions moot.
Equally unavailing is plaintiffs' assertion that "[i]t was
improper for the Board . . . , upon realizing that . . . MIB had
25 A-4349-15T3
not met its burden of proof, to reopen the record and permit
supplementation of the record to correct perceived deficiencies
in the application." Despite plaintiffs' baseless assertions to
the contrary, we find no reason to believe the matter was reopened
for any improper reason.
Finally, we reject plaintiffs' argument that MIB failed to
satisfy both the positive and negative criteria required to warrant
variance relief. Undoubtedly, an applicant seeking a use variance
has the burden to "prove both positive and negative criteria" to
a zoning board. Smart, 152 N.J. at 323. The positive criteria
set forth in N.J.S.A. 40:55D-70(d)(1) authorizes a zoning board,
"[i]n particular cases for special reasons, [to] grant a variance
to allow departure from regulations pursuant to . . . [the MLUL]
to permit . . . a use or principal structure in a district
restricted against such use or principal structure . . . ."
The term "special reasons" is not defined in N.J.S.A. 40:55D-
70(d)(1). However, special reasons may be found where: (1) the
proposed use inherently serves a public good; (2) the owner of the
property would suffer an "undue hardship" if required to use the
property in the manner permitted by the zoning ordinance; or (3)
the use would serve the general welfare because the site is
particularly suitable for the proposed use. Nuckel v. Little
Ferry Planning Bd., 208 N.J. 95, 102 (2011).
26 A-4349-15T3
In general, particularly suitable means that "the general
welfare is served because the use is peculiarly fitted to the
particular location for which the variance is sought." Kohl, 50
N.J. at 279. Our Supreme Court has observed that, in the context
of the specific parcel, it means that strict adherence to the
established zoning requirements would be less beneficial to the
general welfare. See Kramer, 45 N.J. at 290-91. An application
demonstrates a special reason if there is proof that "the subject
property was particularly suitable for the proposed use." Medici
v. BPR Co., 107 N.J. 1, 24 (1987).
At the same time, our Supreme Court has recognized that almost
all lawful uses of property can be said to promote the general
welfare to some degree, with the result that if general societal
benefit alone constituted "an adequate special reason, a special
reason almost always would exist for a use variance." Kohl, 50
N.J. at 280. As a result, any application for a use variance
based on the particularly suitable standard has always called for
an analysis that is inherently site-specific. See Stop & Shop
Supermarket Co. v. Bd. of Adjustment of Springfield, 162 N.J. 418,
431 (2000).
The negative criteria set forth in N.J.S.A. 40:55D-70 states
that the applicant must show the "variance or other relief can be
granted without substantial detriment to the public good and will
27 A-4349-15T3
not substantially impair the intent and the purpose of the zone
plan and zoning ordinance." The applicant must establish the
negative criteria with an "enhanced quality of proof." Price v.
Himeji, LLC, 214 N.J. 263, 286 (2013). To do so, the applicant
must focus "on the effect that granting the variance would have
on the surrounding properties." Ibid. The applicant "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.
We conclude there was sufficient credible evidence supporting
the Board's finding that MIB satisfied both the positive and
negative criteria for the use variance. As to the positive
criteria, the Board had ample evidence that the approximately six
acres comprising Lot 5.02 was particularly suited for the funeral
home and substantially undersized to construct condominium units.
The funeral home would continue the residential feel of the
surrounding area while providing a buffer between the commercial
and residential uses. MIB met all applicable light, air, and open
space requirements, while also addressing the decreased traffic
impact.
As to the negative criteria, as Judge Brenner found, although
residential development on the property had been approved, the
28 A-4349-15T3
fact that it had been undeveloped for almost six years indicated
that residential use was not the most viable option. Additionally,
both the Board's traffic engineer and MIB's traffic engineer agreed
that the traffic impact would be less than if condominium units
were constructed. Further, as Judge Brenner found, a funeral home
with a residential look and aesthetically pleasing design would
provide a balanced community, which was directly in line with
Jackson Township's master plan. Therefore, we are satisfied that
the Board's decision was not arbitrary, capricious, or
unreasonable and was amply supported by the record.
Affirmed.
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