WORLD WHEAT FOUNDATION, INC. VS. PLANNING BOARD OF THE TOWNSHIPÂ OF SADDLEBROOK (L-3217-14, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5716-14T3
WORLD WHEAT FOUNDATION, INC.,
Plaintiff-Appellant,
v.
PLANNING BOARD OF THE
TOWNSHIP OF SADDLE BROOK,
Defendant-Respondent,
and
THE TOWNSHIP OF SADDLE BROOK,
Defendant.
________________________________
Argued December 21, 2016 – Decided July 20, 2017
Before Judges Simonelli, Carroll and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-3217-14.
Richard J. Kapner argued the cause for
appellant.
Stephen F. Pellino argued the cause for
respondent (Basile Birchwale & Pellino, LLP,
attorneys; Mr. Pellino, of counsel and on the
brief).
PER CURIAM
In this prerogative writ matter, plaintiff World Wheat
Foundation, Inc. appeals from the July 8, 2015 Law Division order
of judgment, which affirmed the denial of plaintiff's application
to defendant Planning Board of the Township of Saddle Brook (Board)
for site plan approval and a parking variance to permit plaintiff's
property to be used as a vocational school. For the following
reasons, we affirm.
I.
We derive the following facts from the record. Plaintiff is
a church-based, not-for-profit philanthropic organization.
Plaintiff purchased the property at issue in 2013. The property
consists of 29,198.27 square feet and is located in the B-2
Secondary Business Zone of the Township of Saddle Brook (Township).
Plaintiff's proposed use of the property as a vocational school
is a permitted use within the B-2 zone.
Prior to plaintiff's acquisition of the property, it was
owned and operated by the Brookwood Convalescent Home, a full-time
residential facility for the elderly (the Convalescent Home),
which was not a permitted use in the B-2 zone. The Convalescent
Home began operations in 1964, but had ceased its operations for
approximately two-and-one-half years prior to the hearing on
plaintiff's application.
2 A-5716-14T3
Plaintiff submitted an application to the Board for site plan
approval. Plaintiff also sought a parking variance because the
application proposed twelve spaces, whereas the Township's
ordinance required thirty-three spaces.
Plaintiff proposed to use the building located on the property
as a vocational school to assist working-class Korean families
with English, music, dance, and art. The intended students were
school-aged children and adults who would take English language
courses. Plaintiff's representative, Jay Kim, testified there
would be approximately fifty-five students and no food service
operations on the premises. The school's hours of operation would
be 8:00 a.m. to 10:00 p.m. Monday through Friday, and 8:00 a.m.
to 6:00 p.m. on Saturday. There would be three full-time
employees: a director, a principal, and a secretary, and a part-
time janitor and part-time instructors for the various classes.
The students and instructors would come from neighboring
communities in Teaneck and Fort Lee, and would be bussed to the
school.
Kim testified that plaintiff owned three buses and two
minivans that would be used for transportation. The vehicles
would make continuous loops between pre-determined pickup
locations in other municipalities and the school. The main drop-
off point would be in the rear of the building. When questioned
3 A-5716-14T3
if parents would be allowed to pick up their children, Kim
testified that typically Korean parents would want their children
to utilize the shuttle, but they would not be prevented from
picking up their children if they so wished, or in the case of an
emergency.
A large portion of Kim's testimony reflected the Board's
concern about plaintiff increasing the number of students and
instructors in the future, thus requiring more parking. The Board
was also concerned about how the Township could enforce a condition
of approval that students and instructors be bussed to the school.
Addressing these concerns, Mayor Chamberlain made the following
comment:
MAYOR CHAMBERLAIN: [I]f I may interject and,
[plaintiff's counsel], I sat on the . . .
Planning Board years back. And an application
came in too many years back, but I'm here again
— an application came in our Korean church,
Saddle River Road. Okay. They have been here,
bless them as the people they are,
stipulations were made at the Planning Board
that th[ere] would be no off-street parking.
Okay?
MALE BOARD MEMBER: That's the church.
MAYOR CHAMBERLAIN: Okay. Planning Board
approved it.
A year-and-a-half ago I spoke with the
Pastor of the church because there was a
situation based upon the Planning Board's
approval . . . that the congregation was to
be bussed.
4 A-5716-14T3
All those years later, they've now
expanded to the most magnificent building
. . . and . . . every side street, my daughter
lives [nearby.]
. . . .
MAYOR CHAMBERLAIN: Now, here becomes the
difficulty. You're sitting here with faithful
people, people whose parents really care about
activity for their children. And I highly
respect that. I wish we had more of that in
Saddle Brook that we would like for a building
like this and offer it to our students. And
I respect that.
But . . . I'm speaking to the Pastor who
had to go speak with his board of directors
because they were still, having completed the
construction, and I had asked him, I said I
really would like to go back to what the
Planning Board approved and could you look
into the bussing.
Well, hence, it's a year later. My
thought and my own calendar planning is to
meet with the Pastor of that church again,
because as I said earlier my daughter lives
[on a nearby street]. I go over to see my
grandchildren, a party on a Sunday, I can't
get near, near the house. And she only has a
one car driveway.
Plaintiff's engineer, William R. Vogt, Jr. testified that
"putting aside the number of parking spaces," there would be "safe
access through the entire property for all anticipated vehicles
including [an] ambulance[.]" Vogt calculated the required parking
spaces based on the Township's ordinance, and stated:
[A]s per your ordinance [S]ection 206-37 under
the public and private secondary school and
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institutes for higher learning the requirement
is one space for every classroom and every
other room used by students plus one for every
full-time student or one for every teacher and
employee plus one for every full-time student
whichever is greater.
. . . .
So when you work out the numbers the one
per classroom is the more stringent number.
So that is what the parking requirement is,
is the [thirty-three] spaces according to our
interpretation.
And what we're presenting on the site,
with the fact that two of the proposed spaces
are substandard spaces we are providing
[fourteen] spaces on the property.
Vogt further testified that, assuming four instructors and
four employees drive, eight parking spaces would be sufficient.
He did not expect a "queuing of cars" due to the rate of one van
per hour dropping children off, and suggested utilizing one of the
under-sized, non-conforming parking spaces as the handicap/van-
accessible required spaces. He also testified, without direct
proof, that the Convalescent Home was required to have
approximately twenty-five parking spaces for its use, while it
only had fourteen. The Board took issue with Vogt's calculation.
The Board also questioned whether emergency vehicles would be able
to safely enter and exit the property. Vogt testified that the
parking turning radius on the existing driveway would be sufficient
for an ambulance to safely navigate.
6 A-5716-14T3
After further testimony from Vogt, Mayor Chamberlain stated:
Okay. You're showing or you're trying
to show the safety provision of an ambulance
getting through, but I have a concern about
the ten foot area. And now, God, forbid,
accident, van flips over, [an] ambulance tries
to get in.
The measurements you gave on the van and
the ambulance, they don’t add up to the space
we have.
Now, I mean you have to be prepared,
safety issue, for any catastrophic thing
happening in this day and age because lately
it's a — it's catastrophic, it happens.
Looking down the road, God forbid
explosion. And, you know, I may be getting a
little off the track but it's [not] so out
there, terrorist comes in. Bomb goes off in
[the] building.
Now we need fire trucks. We need an
ambulance. Now I have a building . . . that
goes on the south side egress with the lane,
ten-foot-three that widens to fifteen-foot-
three. Are we going to be able to safe[l]y
rescue any God forbid students, residents,
without the value of having the proper width
for ingress and egress, particularly on the
egress side.
Plaintiff's licensed planner, David Bilow, testified that
plaintiff's proposed use would be a less intensive use; the prior
use by the Convalescent Home was not permitted; and a vocational
school with twelve on-site parking spaces would be sufficient.
7 A-5716-14T3
The Board voted to deny the application, and memorialized its
decision in a February 18, 2014 resolution. Regarding a N.J.S.A.
40:55D-70(c)(1) variance, the resolution provided as follows:
3. The Board finds that [plaintiff] has
failed to demonstrate an undue hardship in
conforming to the bulk zoning requirements of
the B-2 Zone as a result of exceptional
topographic conditions or physical features
. . . . Rather, the existing building could
be removed or modified by [plaintiff] so as
to both reduce the amount of required parking
spaces and increase the number of parking
spaces provided on the [p]roperty. Therefore,
the variance pursuant to N.J.S.A. 40:55D-
70(c)(1) should not be granted.
Regarding a N.J.S.A. 40:55D-70(c)(2) variance, the resolution
provided as follows:
5. The Board finds that [plaintiff] has
failed to demonstrate how the benefits of the
proposed improvements would substantially
outweigh any possible detriment.
[Plaintiff's] [p]lanner testified that the
proposed use is less intense and requires
fewer parking spaces than the former
[C]onvalescent [H]ome on the [p]roperty did.
However, this expert opinion was based in part
on an assumption that the former convalescent
home contained [two] beds per room.
[Plaintiff] was unable to provide a factual
basis for this assumption. In fact, the Board
has reason to believe that the [C]onvalescent
[H]ome may only have contained [one] bed per
room, in which case the former use would
require fewer parking spaces than the proposed
school under the current Zoning Ordinance.
6. While the Board acknowledges that the
proposed school is a permitted use in the B-2
Zone and that a change from a non-permitted
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use to a permitted use is favored by the
[Municipal Land Use Law], the Board finds that
[plaintiff] has failed to demonstrate any
benefits to the overall community that would
substantially outweigh the detriment of the
deviation.
7. N.J.S.A. 40:55D-70(c)(2) further
provides that in order to grant variance
relief, the Board must find that the same can
be granted without detriment to the public
good or any neighboring properties, and
without substantial impairment to the intent
and purpose of the Zone Plan and Zoning
Ordinance.
8. The Board finds that the variance cannot
be granted without substantial detriment to
the public good or the neighboring properties
or without substantial impairment to the
intent and purpose of the Zone Plan. Based
upon the proposed occupancy of the building
as presented to the Board, the number of
parking spaces proposed is less than half the
number required pursuant to the Zoning
Ordinance. The Board does not find the
testimony of [plaintiff's] witnesses as to the
number of instructors to be credible and
accordingly, the Board has determined that the
demand for parking at the [p]roperty would
likely be greater than represented by
[plaintiff]. The Board further finds that
because no guarantee can be made as to any
future increase in enrollment at [plaintiff's]
school, the number of students and/or
instructors could significantly increase,
exacerbating the demand for parking and
resulting in substantial detriment to the
surrounding property owners.
9. In addition, the Board finds that the
conditions set forth on the proposed [s]ite
[p]lan present substantial safety concerns.
As set forth above, a van in the process of
loading or unloading at the rear of the
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building would prevent any other vehicle,
including an emergency vehicle, from
traversing the [p]roperty due to the
narrowness of the access drives. Further, a
van unloading a student in a wheelchair within
the southern egress drive would prevent any
other vehicle from exiting the [p]roperty.
10. Based upon the foregoing, the variance
with respect to minimum parking spaces should
not be granted.
Plaintiff filed a complaint in lieu of prerogative writs,
alleging: the Board's decision was arbitrary, capricious and
unreasonable because the school was a permitted, less-intrusive
and more suitable use of the property; and the objections made
about parking and other issues were too minor to deny the
application. Plaintiff also alleged that remarks about other
Korean projects in Saddle Brook indicated bias toward plaintiff
as a Korean organization, and certain Board members had a conflict
of interest.
Judge William C. Meehan held a three-day trial, at which a
former Board member, Joseph Ribarro, Councilman Joseph Conte, and
Chamberlain testified. Ribarro testified as follows:
Q: Did anyone, whether a board member or not
ever tell you not to support [plaintiff's]
application?
A: No.
Q: Did anyone at any time indicate to you
that the application should not be supported
10 A-5716-14T3
because the people behind the applicant were
Korean?
A: No, I'm not going for that type of
communication.
Q: Did you have any problem with the fact
that the applicant was Korean?
A: No.
Q: Did you hear any board member express any
bias against the applicant because it was or
its [principals] were Korean?
A: Somebody might— someone might have said
something, but I don't recall.
. . . .
A: If I recall, I think someone was talking
about the parking at the Korean Church, which
had nothing to do with this application, that
they had problems there with parking.
Conte testified as follows:
Q: Did you hear anyone, whether in the
meeting or outside the meeting make reference
to the fact that the applicant was Korean?
A: No.
Q: Did you have any issue regarding the
applicant as Korean for purposes of their
development application?
A: No.
Q: During the hearing you made reference to
possible stacking or backup of vehicles with
respect to the possible drop off and pick up
of students. Do you recall that?
11 A-5716-14T3
A: It's been a few years, yeah. So many
things I think were said, yes. Yes.
Q: Are you aware during your two years on
the board, the issues where bombings,
shootings, or terroristic attack being raised
with respect to any other applicants?
A: No.
Q: This is the only one. Correct?
A: Yes. I don't even— I don't even recall
that to be honest with you.
When asked why she referenced the parking issue at the nearby
Korean church, Chamberlain testified as follows:
A: Okay. I made reference because when I
was Mayor for my first term, my five years, I
sat on the planning board for that
application. Now the planning board that I
was sitting with currently from 2011, my last
four years, there were new members there. And
we have three churches on Saddle River Road.
So in order for me to convey to the new members
I pointed out the Korean Church experience,
because of the two other churches on Saddle
River Road.
And I did not know any address, with a
number.
. . . .
Q: Okay. So again, why the reference to a
Korean Church for an application for a
vocational school not on the same road?
A: The reason being the applications were
similar in nature regarding parking.
. . . .
12 A-5716-14T3
A: Well when the . . . Korean Church on
Saddle River Road came in for the application,
there was insufficient parking. However it
did pass. And it was memorialized that there
be no off-street parking. However, as the
years went on, the parking lot not only
congested to the point of the curb, which
would cause a safety issue for an ambulance
or a fire truck to get in, and I had been in
the midst of current mayorship, speaking with
the pastor. And I had made a comment to him.
And we were working on the parking issue,
because I had said, as an example, God forbid,
if one of your members of the congregation has
a heart attack the ambulance cannot get in
there or a fire truck. So that was my concern
and my experiences from that application.
Relative to this application, even though
it wasn't a church, I felt that they were
similar in nature regarding the safety of
those students. And the fact of enforcement
on the church application, the memorialization
as I stated earlier said, our building
inspector doesn't work Sundays, police work
is at a minimum, so the enforcement issue is
not there.
. . . .
Q: Of the three churches you mentioned on
Saddle River Road did all of them have parking
issues on Sunday?
A: Not to my knowledge, sir.
Q: Just the Korean church?
A: Yes, sir.
Chamberlain also testified that she did not raise issues of
shooting, terrorism, or explosions on any other applications
during her time as mayor.
13 A-5716-14T3
In a June 22, 2015 written opinion, Judge Meehan found as
follows:
In the present matter, the Board's
decision was not arbitrary, capricious or
unreasonable. The Board's decision to deny
the variance relief sought by plaintiff was
based on a reasonable belief that parking and
traffic would be an issue at the Property.
The resolution clearly details these concerns.
Although plaintiff's experts testified that
twelve parking spaces are sufficient for the
proposed use, the Board had legitimate
concerns. There is no way for the Township
of Saddle Brook or the Board to enforce the
bussing of students and teachers to the site.
If parents begin to drive their children to
the Property instead of utilizing the bussing
system, there will be an influx of traffic
during drop off and pick up times, and no way
for the Township to enforce use of the buses.
For those reasons, the court also finds that
plaintiff has not sufficiently proven that the
vocational school requires fewer parking
spaces than the convalescent home that was
previously operating on the Property.
Additionally, the fact that plaintiff
seeks to convert the Property into a
conforming use is also not dispositive here.
Regardless of that fact, the Property requires
a parking variance, and the Board's parking
and traffic concerns are not negated simply
because the site conforms to the local zoning
code and ordinances.
Further, the court finds that bias
towards Koreans did not play a role in the
Board's decision. Review of the record below
indicates that the board members referenced
other Korean properties that did not relate
to the present site. However, those
references were relevant to the present
application in that there were traffic and
14 A-5716-14T3
parking issues relating to those sites. The
fact that properties were owned and operated
by Koreans did not play a role in the decision-
making process. Additionally, the Board made
inquiries regarding the safety of the building
and its future students. These inquiries were
warranted given the recent current events in
schools. The fact that the issue of safety
was not raised at another hearing for a
different type of application for a school is
not dispositive. Child safety is a legitimate
concern, and the Board acted within its
authority when it addressed this issue.
On July 8, 2015, the judge entered an order of judgment affirming
the Board's decision. This appeal followed.
In reviewing a planning board's decision, we use the same
standard used by the trial court. Cohen v. Bd. of Adjustment of
the Borough of Rumson, 396 N.J. Super. 608, 614-15 (App. Div.
2007) (citations omitted). Like the trial court, our review of a
planning board's decision is limited. Smart SMR of N.Y., Inc. v.
Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998).
We give deference to a planning board's decision and will reverse
only if its action was arbitrary, capricious, or unreasonable.
Zilinsky v. Zoning Bd. of Adjustment of Verona, 105 N.J. 363, 367
(1987).
We give even greater deference to a planning board's decision
to deny a variance in preservation of a zoning plan than 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).
15 A-5716-14T3
Where a planning board has denied a variance, the applicant must
prove that the evidence before the board was "overwhelmingly in
favor of the applicant." Ibid. However, where the issue on appeal
involves a purely legal question, we afford no special deference
to the trial court's or the planning 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, 352 (App. Div. 2009). Applying the
above standards, we discern no reason to disturb the Board's or
Judge Meehan's decision.
II.
Plaintiff contends that because the proposed use would bring
the property into conformity with the zoning code and would be a
less-intense, more suitable use than the former Convalescent Home,
the objections made concerning parking and other issues were too
minor a basis to deny the application. We disagree.
The issue here and throughout the Board hearings and trial,
centered wholly on parking. Plaintiff's argument as to the
Convalescent Home is entirely misplaced. It is immaterial how
many parking spaces that use would have required. The Convalescent
Home began operating in the 1960's, well before the adoption of
the current zoning plan. Whether or not the Convalescent Home was
conforming as to parking is, thus, totally immaterial. Plaintiff's
16 A-5716-14T3
application was judged on its own merits and based on the current
zoning ordinance and current safety and emergency concerns.
Plaintiff's argument is essentially that because the Convalescent
Home did not have sufficient parking, it should not be required
to have sufficient parking as well. This is counter to the
Municipal Land Use Law and applicable case law.
Parking is a valid, legitimate focus of both sound planning
and zoning. "One of the purposes of zoning is to lessen vehicular
congestion in the streets and highways." Wawa Food Mkt. v.
Planning Bd. of Ship Bottom, 227 N.J. Super. 29, 35 (App. Div.),
certif. denied, 114 N.J. 299 (1988) (citing N.J.S.A. 40:55D-2(h)).
"A necessary corollary to that purpose is that off-street parking
requirements also advance the legitimate municipal interest in
decreasing traffic congestion since vehicles, which would
otherwise park on the streets, are required to park on the proposed
site." Ibid. (citing Zilinsky, supra, 105 N.J. at 369). In short,
plaintiff's application failed to ameliorate the legitimate
concerns of the Board concerning: (1) intensity of the parking;
(2) the lack of spaces; (3) the enforceability of the bussing of
students as opposed to regular pick-up and drop-off; and (4) the
lack of available handicap spaces. Accordingly, in denying the
parking variance, the Board's action was not arbitrary,
capricious, or unreasonable.
17 A-5716-14T3
Plaintiff continuously maintains that the Board should have
granted the parking variance because it produced unrefuted,
uncontradicted expert testimony. However, this argument misses
the point, as it is the applicant's burden of proof to meet the
criteria necessary for a variance; the Board has no similar burden.
Very often it happens that only the applicant
submits any evidence to the board but it
should be noted that the absence of evidence
in support of a denial of a requested variance
does not in itself mean that the board's
denial of a variance is arbitrary. The burden
rests with the applicant to establish the
criteria for the grant of the variance and it
must demonstrate the affirmative evidence in
the record dictates the conclusion that a
denial would be arbitrary.
[Cox & Koenig, New Jersey Zoning and Land Use
Administration, § 18-4.3 at 372-73 (2017).]
See also Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141
N.J. Super. 1 (App. Div. 1976).
Plaintiff also points to two other applications the Board
heard, and contends that the Board did not voice similar concerns
in those applications as the ones raised in its application.
Plaintiff provided to Judge Meehan an application for a senior
apartment complex and a daycare and maintained that no concerns
about emergencies were voiced during those hearings and that those
applicants received the necessary approvals. This argument is
misplaced because, generally, other applications before the same
18 A-5716-14T3
board do not present any kind of precedent and each application
is judged on its own merits. "Generally speaking, the granting
of a variance to one property owner does not create a precedent
for the granting of a variance to other property owners, since
each variance must stand or fall on its own peculiar factual
circumstances." Cox & Koenig, supra, § 28-3 at 605; see also Kohl
v. Mayor & Council of Fair Lawn, 50 N.J. 268, 276 (1967).
In sum, plaintiff failed to meet the statutory criteria for
the required site plan and parking variance approvals.
Accordingly, the Board's decision was not arbitrary, capricious,
or unreasonable.
III.
Plaintiff contends that the Board, and Chamberlain in
particular, exhibited racial bias against plaintiff because it is
a Korean organization. Plaintiff asserts that the references made
about other Korean establishments, particularly a Korean church
in the municipality, and raising issues of explosions, terrorism,
and bombs, were inappropriately directed only at plaintiff's
application.
Chamberlain testified as to why she made the complained-of
comments. First, the comments had nothing to do with either
plaintiff or the church being of Korean heritage. Rather,
Chamberlain used that identifier simply to distinguish it from
19 A-5716-14T3
three other churches located on the same road as the Korean church.
She also stated that none of the other churches had a similar
parking problem.
Chamberlain's comments were pertinent to plaintiff's
application in that the church she referenced was granted a
variance conditioned on a certain level of parking. When the
church violated the condition, the Township had limited
enforcement power. Chamberlain raised the issue again in
plaintiff's application because much of the testimony regarding
staffing and student levels and parking was based solely on Kim's
testimony with no promise or requirement that the levels would not
increase in the future. Accordingly, there were legitimate reasons
for this discussion and it is clear that racial bias played no
part in the denial of plaintiff's application. Similarly, the
concerns about terrorism and other violent concerns were
reflective of a perceived rise in the number of such incidents in
schools in particular. Plaintiff's argument on this point simply
lacks merit.
IV.
Plaintiff contends that Chamberlain and Conte failed to
disclose that the Township had previously commissioned a study of
plaintiff's property for its suitability as affordable housing for
20 A-5716-14T3
the elderly. Plaintiff argues that this conflict of interest was
never revealed and tainted the Board's decision on its application.
Pursuant to N.J.S.A. 40:55D-23(b), as applicable to planning
boards, "[n]o member of [the board] shall be permitted to act on
any matter in which he has, either directly or indirectly, any
personal or financial interest." Our Supreme Court has defined
the general contours of conflicts:
(1) "Direct pecuniary interests," when an
official votes on a matter benefitting the
official's own property or affording a direct
financial gain; (2) "Indirect pecuniary
interests," when an official votes on a matter
that financially benefits one closely tied to
the official, such as an employer, or family
member; (3) "Direct personal interest," when
an official votes on a matter that benefits a
blood relative or close friend in a non-
financial way, but a matter of great
importance, as in the case of a councilman's
mother being in the nursing home subject to
the zoning issue; and (4) "Indirect [p]ersonal
[i]nterest," when an official votes on a
matter in which an individual's judgment may
be affected because of membership in some
organization and a desire to help that
organization further its policies.
[Wyzykowski v. Rizas, 132 N.J. 509, 525
(1993).]
Whether a conflict "is sufficient to disqualify is necessarily a
factual one and depends upon the circumstances of the particular
case." Id. at 523 (quoting Van Itallie v. Franklin Lakes, 28 N.J.
258, 268 (1958)). "The question will always be whether the
21 A-5716-14T3
circumstances could reasonably be interpreted to show that they
had the likely capacity to tempt the official to depart from his
sworn public duty." Ibid.
Plaintiff's argument fails for several reasons. First,
plaintiff never requested that any of the Board members recuse
themselves. Plaintiff was fully aware of the purported conflict
because it was plaintiff's counsel who introduced the report
commissioned by the Board into evidence at the hearing. However,
even then, plaintiff's counsel's comments indicate that he
introduced the report to contrast the Board's interpretation as
to what was considered a permitted use, not to establish a conflict
of interest.
Second, plaintiff has not argued, nor is there any evidence,
that the alleged conflict fits into any of the categories
enunciated in Wyzykowski. The actions taken by Chamberlain or
Conte represent the interests of the municipality, not either
individual personally.
Finally, plaintiff has not shown how the alleged conflict
tainted the Board's decision. Plaintiff merely presented a report
commissioned by the Board on behalf of the Township over a year
and one-half before plaintiff's application. Plaintiff's
conclusion that Chamberlain and Conte were "protecting the
22 A-5716-14T3
Township's interest rather than deciding [plaintiff's] proposal"
is mere speculation.
V.
Plaintiff contends that the preexisting nonconforming parking
lot should be entitled to continue under its use of the building.
We disagree.
N.J.S.A. 40:55D-68, which addresses preexisting nonconforming
structures, provides: "Any nonconforming use or structure existing
at the time of the passage of an ordinance may be continued upon
the lot or in the structure so occupied and any such structure may
be restored or repaired in the event of partial destruction
thereof." Specifically as applied to parking, if a property owner
operated without existing off-street parking, it would be
permitted to continue to do so even after the adoption of a zoning
ordinance requiring off-street parking. See Dresner v. Carrara,
69 N.J. 237 (1976); Ric-Cic Co. v. Bassinder, 252 N.J. Super. 334
(App. Div. 1991) (applying the same principle to protect a
nonconforming parking arrangement while the business was being
physically rebuilt).
In Wawa Food Market, supra, we distinguished a situation like
that in Dresner and an application for a parking variance. We
wrote:
23 A-5716-14T3
However, unlike the existing building, which
establishes a "footprint" on the character of
the property precluding compliance with the
set-back requirements, the number of parking
spaces is computed based on floor area and the
number of employees. Thus, the number of
parking spaces required is dictated by the
extent and manner by which the facility is
used, not the preexisting nature of the
structure. Distinguishable is the case where
property has been used for a particular
business purpose since prior to the passage
of an off-street parking ordinance. In such
a circumstance, where the nature and intensity
of the business remains the same, continued
use of the property without off-street parking
is protected as a nonconforming use.
[Wawa Food Market, supra, 227 N.J. Super. at
37-38.]
Thus, the only exception to a valid conforming parking variance
is a nonconforming use which will remain of the same nature and
intensity as the prior user. Here, such is not the case. The
prior use was by the Convalescent Home, which provided full-time
care for elderly residents. Parking included employees,
residents, and visitors. Plaintiff's proposed parking is very
different. Its proposed use of the property involved busses
shuttling students and staff to the site. Even a less intense
use, as plaintiff argues this would be, is still a difference in
use. Accordingly, the nonconforming parking lot should not have
been protected for plaintiff's benefit.
24 A-5716-14T3
VI.
Lastly, plaintiff contends that the Board's written
resolution memorializing its decision "cites reasons for the
Board's actions, but which reasons are utterly lacking in
evidentiary support and are not found in the transcript of the
hearing."
Pursuant to N.J.S.A. 40:55D-10(g), the planning board's
decision must include findings of fact and conclusions based
thereon. Mere recitals of testimony do not satisfy this
responsibility. Loscalzo v. Pini, 228 N.J. Super. 291, 305 (App.
Div. 1988), certif. denied, 118 N.J. 216 (1989). If a variance
is denied, the factual findings must not merely recite but instead
must demonstrate with reference to facts and testimony on the
record that there is no hardship or that no special reasons exist,
or otherwise that the statutory requisites for the grant of a
variance are absent. See Cox & Koenig, supra, § 19-7.2 at 435.
The Board's resolution adequately complies with this
statutory mandate. The statutory criteria and the Board's reasons
for denying the application are considered together and the Board
made supported conclusions based on the factual record. The
resolution discusses the application of both (c)(1) and (c)(2)
variances and how plaintiff failed to meet its burden or address
the Board's persistent concerns regarding parking and safety.
25 A-5716-14T3
Affirmed.
26 A-5716-14T3