PL SQUARED, LLC VS. ZONING BOARD OF ADJUSTMENT OF THETOWNSHIP OF HOPEWELL(L-2800-15, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-5104-15T3
PL SQUARED, LLC,
Plaintiff-Appellant,
v.
ZONING BOARD OF ADJUSTMENT OF
THE TOWNSHIP OF HOPEWELL, a
Municipal Corporation of the
State of New Jersey,
Defendant-Respondent.
______________________________
Argued telephonically September 26, 2017 –
Decided October 5, 2017
Before Judges Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-
2800-15.
Eric Goldberg argued the cause for appellant
(Stark & Stark, attorneys; Mr. Goldberg and
Gene Markin, of counsel and on the briefs).
Kevin A. Van Hise argued the cause for
respondent (Mason, Griffin & Pierson, P.,
attorneys; Cory K. Kestner, of counsel and on
the brief).
PER CURIAM
In this action in lieu of prerogative writs, plaintiff PL
Squared, LLC appeals from a June 21, 2016 order upholding a
resolution by defendant Zoning Board of Adjustment of the Township
of Hopewell (the Board) denying plaintiff's application seeking a
N.J.S.A. 40:55D-70(d)(1) use variance and various N.J.S.A. 40:55D-
70(c)(1) bulk variances. There exists substantial credible
evidence in the record to support the Board's findings, there is
no clear abuse of discretion, and the decision is not arbitrary,
capricious, or unreasonable. We therefore affirm.
Plaintiff owns a single-family dwelling (the property)
located in a Mountain Resource Conservation Zoning District (MRC).
Plaintiff intended to develop the property as a convenience store
and gas station. As part of that proposed development, plaintiff
applied to the Board for the use variance, and requested other
variance relief from certain bulk requirements.
The Board conducted hearings on several days, took testimony
from witnesses, and reviewed documents admitted into evidence. In
denying the applications, the Board concluded that plaintiff
failed to demonstrate the site was suited for the proposed uses.
The Board also found that granting the variances conflicted with
the town's master plan, and contravened an applicable ordinance,
which precluded multiple uses for lots located in the MRC District.
Plaintiff then filed this complaint.
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On appeal, plaintiff argues that the Board's denial of the
use variance was arbitrary, capricious, and unreasonable.
Plaintiff contends there is insufficient evidence in the record
to support the Board's denial of the use variance. Plaintiff
maintains that the Board, and the judge, failed to appreciate that
denying the variances would result in "economic inutility," which
plaintiff contends constitutes "special reasons" to issue the use
variance.
Our standard of review is well settled. "In evaluating a
challenge to the grant or denial of a variance, the burden is on
the challenging party to show that the zoning board's decision was
'arbitrary, capricious, or unreasonable.'" Price v. Himeji, LLC,
214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adjustment, 45
N.J. 268, 296 (1965)). "[Z]oning boards, 'because of their
peculiar knowledge of local conditions[,] must be allowed wide
latitude in the exercise of delegated discretion.'" Ibid. (second
alteration in original) (quoting Kramer, supra, 45 N.J. at 296).
Therefore, a zoning board's decision "enjoy[s] a presumption of
validity, and a court may not substitute its judgment for that of
the [zoning] board unless there has been a clear abuse of
discretion." Ibid. (citing Cell S. of N.J., Inc. v. Zoning Bd.
of Adjustment, 172 N.J. 75, 81 (2002)).
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The level of deference given to a zoning board's decision to
grant a variance is less than the level of deference given for a
denial of a variance. Saddle Brook Realty, LLC v. Twp. of Saddle
Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75 (App. Div.
2006) (citing Funeral Home Mgmt., Inc. v. Basralian, 319 N.J.
Super. 200, 208 (App. Div. 1999)). Nevertheless, a zoning board
must base its decision on substantial evidence in the record. Cell
S. of N.J., Inc., supra, 172 N.J. at 89. We review any issue of
law de novo. Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405
N.J. Super. 189, 197 (App. Div. 2009).
We begin by addressing plaintiff's use variance application.
Applicants seeking a use variance pursuant to N.J.S.A. 40:55D-
70(d)(1) must show positive and negative criteria. Medici v. BPR
Co., 107 N.J. 1 (1987). The legal principles associated with
these terms are well settled.
As to the positive criteria, plaintiff must show "special
reasons." N.J.S.A. 40:55D-70(d). Such an obligation may be
established when (1) "'the proposed use inherently serves the
public good'"; (2) "'the property owner would suffer "undue
hardship" if compelled to use the property in conformity with the
[zoning ordinance]'"; or (3) "'the use would serve the general
welfare because the . . . site is particularly suitable for the
proposed use.'" Nuckel v. Borough of Little Ferry Planning Bd.,
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208 N.J. 95, 102 (2011) (quoting Saddle Brook Realty, LLC, supra,
388 N.J. Super. at 76). "[P]eculiar suitability special reasons
exist where, generally, the use is one that would fill a need in
the general community, where there is no other viable location,
and where the property itself is particularly well fitted for the
use either in terms of its location, topography or shape."
Basralian, supra, 319 N.J. Super. at 210. Plaintiff focuses on
the second and third categories.
Economic inutility of a parcel of land, resulting from the
parcel not being reasonably adapted to a conforming use, is
recognized as an undue hardship, and thus, can constitute grounds
for a variance. Medici, supra, 107 N.J. at 17 n.9. Plaintiff
reiterates its assertion that the property has "declining
suitability for residential use." The record demonstrates,
however, that the dominating uses in the surrounding area of the
property are residential and open space. Moreover, the New Jersey
Department of Environmental Protection (NJDEP) owns property
immediately behind and around the property, which the NJDEP uses
for open space. Finally, property uses on Route 518 and Route 31
are predominantly residential or abandoned commercial uses.
Consequently, we agree with the judge that there is no credible
basis in the record to conclude that the purported economic
inutility amounts to a special reason constituting undue hardship.
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As to the negative criteria, plaintiff must show "that the
variance 'can be granted without substantial detriment to the
public good' and that it 'will not substantially impair'" the
zoning regulations. Price, supra, 214 N.J. at 286 (2013) (quoting
N.J.S.A. 40:55D-70). The first element "focuses on the effect
that granting the variance would have on the surrounding
properties." Ibid. (citing Medici, supra, 107 N.J. at 22 n.12).
The second requires proof "reconcil[ing] the grant of the variance
for the specific project at the designated site with the
municipality's contrary determination about the permitted uses as
expressed through its zoning ordinance." Ibid. (citing Medici,
supra, 107 N.J. at 21). An "enhanced quality of proof" is
required, "as well as clear and specific findings . . . that the
grant of a use variance is not inconsistent with the intent and
purpose of the master plan and zoning ordinance." Medici, supra,
107 N.J. at 4.
There is sufficient credible evidence in the record to support
the Board's findings that plaintiff failed to satisfy its burden,
especially as to the negative criteria. The findings include the
manner in which granting the variances would contradict the town's
master plan and contravene the local ordinance.
[S]ince adoption of the 2002 Township Master
Plan and subsequent Master Plan Re-
Examinations, the Township has continued to
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maintain a commitment to limit and discourage
highway dependent commercial uses where such
uses do not already exist. Thus, the Township
has specifically provided for, by zoning,
specific commercial corridors in the Township.
The subject property is not within such an
area. The Board finds that the proposed use
would be appropriately located in a commercial
corridor, [rather than] the subject
property[,] where such highway[-]dependent
businesses have been specifically precluded.
Moreover, the Board notes that the subject
property had previously been zoned for
commercial use, but was specifically rezoned
to low density residential as part of the MRC
zoning enactment following the 2002 Master
Plan reexamination. Therefore, the Board
remains concerned that granting the variances
requested here would be an impermissible
usurpation of the governing body's exclusive
power to zone, and would be directly contrary
to the intent and purpose of the Master Plan
and zoning ordinance.
In light of these factors, the Board finds
that [plaintiff] has not sustained its burden
of satisfying the positive and negative
criteria necessary for obtaining the requested
variances, or that the application is in
compliance with the applicable standards set
by the MLUL and [ordinances].
For these reasons, the Board finds that there
will be a substantial detriment to the public
good and there will be substantial detriment
to the zone plan and zoning ordinance if the
requested relief were granted. Furthermore,
the Board's granting of the requested
variances would in fact impair and impede the
goals of the Township Master Plan and
[ordinances].
We see no reason to disturb these findings.
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Although plaintiff focuses primarily on the denial of its use
variance application, the Board also denied plaintiff's
application for various bulk variances. N.J.S.A. 40:55D-70(c),
which generally authorizes the Board to grant bulk variances,
provides in part:
(1) Where: (a) by reason of exceptional
narrowness, shallowness or shape of a specific
piece of property, or (b) by reason of
exceptional topographic conditions or
physical features uniquely affecting a
specific piece of property, or (c) by reason
of an extraordinary and exceptional situation
uniquely affecting a specific piece of
property or the structures lawfully existing
thereon, the strict application of any
regulation pursuant to article 8 of this act
would result in peculiar and exceptional
practical difficulties to, or exceptional and
undue hardship upon, the developer of such
property, [the board of adjustment shall have
the power to] grant, upon an application or
an appeal relating to such property, a
variance from such strict application of such
regulation so as to relieve such difficulties
or hardship[.]
In addition, an applicant must establish the aforementioned
negative criteria. N.J.S.A. 40:55D-70(d). There are sufficient
facts in the record to support the Board's findings that plaintiff
failed to do so.
We therefore conclude that plaintiff failed to show that the
Board's decision was arbitrary, capricious, or unreasonable. The
Board followed the applicable law, based its decision on
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substantial evidence in the record, and correctly denied the
applications. Applying the wide latitude to zoning boards in the
exercise of their delegated discretion, and seeing no abuse of
discretion here, we decline to substitute our judgment for that
of the Board's.
Affirmed.
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