EI PROPERTIES, INC. VS. THE TOWNSHIP OF NEPTUNE (L-3009-16, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-2604-17T2
EI PROPERTIES, INC.,
Plaintiff-Appellant,
v.
THE TOWNSHIP OF NEPTUNE, and
THE TOWNSHIP OF NEPTUNE
ZONING BOARD OF ADJUSTMENT,
Defendants-Respondents.
________________________________
Argued May 14, 2019 – Decided July 3, 2019
Before Judges Yannotti and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-3009-16.
Andy S. Norin argued the cause for appellant (Drinker
Biddle & Reath LLP, attorneys; Andy S. Norin, of
counsel and on the briefs).
Monica C. Kowalski argued the cause for respondents.
PER CURIAM
This is an appeal from a judgment entered in an action in lieu of
prerogative writs. Plaintiff, EI Properties, Inc. (plaintiff or EI Properties),
appeals from an August 3, 2017 order and a January 22, 2018 amended order
and final judgment, which rejected plaintiff's challenges to a resolution of the
Neptune Township Zoning Board of Adjustment (Zoning Board). In the
resolution, the Zoning Board denied plaintiff's application for a certification of
a nonconforming, pre-existing use, or, alternatively, a use variance. Having
reviewed the contentions of the parties in light of the record and law, we affirm.
I.
We take the facts from the record developed in the prerogative writs
action. The material facts are largely undisputed.
Plaintiff owns approximately sixteen-and-one-half acres in the Township
of Neptune (Township), which is designated as Lot 5 in Block 10017 on the
Township's tax map (the Property). The Property is improved with five
buildings, which were constructed between 1982 and 2003. Over the past two
decades, the zoning of the Property has changed several times.
Plaintiff acquired the Property in 1973. At that time, the Property was
undeveloped and consisted of approximately twenty-one-and-one-half acres.
Pursuant to a 1962 Township ordinance, the Property was in a "Light Industrial"
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(L-I) zoning district. Under the 1962 ordinance, the permitted uses for that L-I
zone included, among other uses, manufacturing, converting, altering, finishing,
assembly or other handling of products; fully enclosed wholesale or storage
establishments; research laboratories; computer centers; and general business
and professional offices.
In 1982, the first two buildings (Building One and Building Two) were
constructed on the Property. In 1991, a third building (Building Four) was
completed. Around that time, two more buildings were also constructed
(Building Five and Building Seven).
In 1995, the Property was involved in a foreclosure proceeding. Because
of that proceeding, the size of the Property was reduced from twenty-one-and-
one-half acres to its current size of sixteen-and-one-half acres. In addition,
Building Five and Building Seven were sold and, thus, are no longer part of the
Property.
Three years later, in 1998, the Neptune Township Planning Board
(Planning Board) granted site plan approval for another building on the Property
(Building Three) through Resolution 98-25. That resolution noted that the
Property was located in a "Light Industrial District" and that the proposed uses
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of Building Three were permitted uses in that zoning district. The construction
of Building Three began in 2001 and was completed in 2002.
In 2000, after the site plan for Building Three had been approved , but
before the building had been constructed, the Township Committee adopted
Ordinance 00-40, which rezoned the Property from an L-I zoning district to a
"Corridor Commercial" (C-2) zoning district. The C-2 zoning district permitted
sixteen roadway oriented, non-retail business uses, such as hotels, automatic car
washes, offices, and restaurants.
On January 30, 2002, the Planning Board granted site approval for an
additional building (Building Six) through Resolution 02-10. That resolution
noted that the Property was located in a "C-2 zone" and that the proposed uses
of Building Six were permitted uses in that zoning district. Building Six was
then constructed in 2002 and completed in 2003.
Around that same time, the Township Committee rezoned the area where
the Property is located. Specifically, in 2003, the Township Committee adopted
Ordinance 03-35, which rezoned the Property from a C-2 zoning district to a
"Route 66 West Commercial" (C-3) zoning district. The C-3 zoning district
permitted more than 150 uses, including retail, financial, real estate, educational,
health care, office, restaurant, and hotel uses.
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Approximately ten years later, on February 10, 2014, the Township
Committee adopted Ordinance 14-08, which authorized a "Hospital Support
Zone" (H-S) to overlay the C-3 zoning district. The H-S overlay permitted
additional uses on the Property, such as medical and dental diagnostic offices
and laboratories, light industrial and manufacturing uses related to medical and
dental uses, medicinal and botanical manufacturing, and research laboratories.
Later in 2014, the Township Committee adopted Ordinance 14-39, which
rezoned the Property from the C-3 zoning district to a "Planned Commercial"
(C-1) zoning district. The permitted uses in the C-1 zone included forty retail,
office, recreational, real estate, educational, hotel, and personal services uses.
The Property continued to be in the H-S overlay zone.
In October 2014, plaintiff filed an application with the Zoning Board for
a use variance for the Property. In its application, plaintiff explained that it was
seeking permission to use the Property "as a light industrial corporate park,
which includes, without limitation, the following uses: light manufacturing,
laboratory, research and development, assembly, warehouse and distribution and
professional office."
On March 6, 2015, plaintiff amended its application to include a list of
current and former tenants at the Property and a Community Impact Statement
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(CIS). The amended application also requested certification of the pre-existing
nonconforming use of the Property "as a light industrial corporate park"
pursuant to N.J.S.A. 40:55D-68.
Thereafter, plaintiff's application was deemed complete and public
hearings were conducted. The Zoning Board held three public hearings on
plaintiff's application on June 3, 2015, January 6, 2016, and June 1, 2016.
During those hearings, plaintiff presented testimony from one of its principal
partners, Gatano Cipriano, and two licensed professional planners, Christine
Nazzarro-Cofone, AICP, PP, and Justin Auciello, AICP, PP, both from Cofone
Consulting Group. The Zoning Board's planner, Jennifer Beahm, AICP, PP, also
advised the Board as to her professional opinion concerning plaintiff's
application. Furthermore, the Zoning Board received written documentation,
including a letter submitted on behalf of plaintiff.
During the public hearings, plaintiff explained that it was seeking
certification that the use of the Property as a "light industrial park" is "a valid,
preexisting nonconforming use." In support of that position, Cipriano testified
that the "buildings were specifically designed . . . as flex industrial buildings
with a mix of light industrial office uses" and that from 1982 to the present, the
Property possessed a mix of tenants engaged in different uses on the Property.
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Cofone also testified that the Property was "particularly suitable
for . . . light flex office manufacturing-type uses[.]" She went on to testify that
it would be a hardship for plaintiff to have to lease the Property in conformance
with uses in the C-1 zoning district because the buildings on the Property were
not designed for retail or commercial purposes. Further, Cofone testified that
the uses sought in the variance request were not "radically" different from those
permitted under the H-S overlay and, thus, the impact on the public would be no
different than the permitted H-S uses.
Concerning the request for a use variance, Auciello testified that the
Property was particularly suitable for light industrial uses because the buildings
had been designed for those uses and there was sufficient parking for those uses.
Auciello also testified that based on his professional planning experience, there
was no negative impact from the continued use of the Property as a light
industrial flex park.
At various times during the public hearings, the Zoning Board requested
plaintiff to provide more specific lists of uses it was seeking approval for as part
of its application. In response, plaintiff provided several lists, with the final list
containing approximately twenty-seven requested uses for which plaintiff was
seeking use variance approval.
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The main contention during the hearing was whether plaintiff was entitled
to a certificate of pre-existing, nonconforming use or a use variance covering
the entire Property and all five buildings. In that regard, Zoning Board Planner
Beahm advised that it was her professional opinion that plaintiff's request for a
use variance was too broad. She also advised the Zoning Board that she
disagreed with Cofone's and Auciello's positions regarding a hardship. Beahm
explained that "to grant a use variance, a blanket use variance, for an
overabundan[ce] of industrial uses [would be] a usurpation of the [Township]
Committee's right to zone." Beahm also opined that the use variance would
create a negative impact "to the intent of the zoning ordinance in [the] Master
Plan."
Concerning the request for a certificate of a pre-existing, nonconforming
use, Beahm objected to such a certificate for the entire Property. She pointed
out that the Property was fully occupied with tenants and that many of those
tenants were engaged in uses that were permitted in the current C-1 zone.
Following the completion of the public hearings, on June 1, 2016, the
Zoning Board voted unanimously to deny plaintiff's requests for a certificate of
pre-existing, nonconforming use covering the entire Property and a use variance.
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The Zoning Board memorialized its decision in a resolution adopted at a July 6,
2016 public hearing (the Resolution).
In the Resolution, the Zoning Board made thirty findings of fact and
referenced the transcripts from the public hearing, which it explained provided
"the detailed basis and description of the decision as memorialized in this
Resolution[.]" The Zoning Board concluded that plaintiff had not "demonstrated
that the purposes of the Municipal Land Use Law and the Land Use Ordinances
of the Township of Neptune would be advanced by the deviation from the zoning
ordinance requirements at issue[.]" The Zoning Board further concluded that
plaintiff had not shown "that the benefits of any deviation would substantially
outweigh any detriment resulting from a grant of the relief requested[.]" In
addition, the Zoning Board concluded that granting plaintiff's request would
cause substantial detriment to the public good and would substantially impair
the intent and purpose of the zoning ordinance and zoning plan of the Township.
Accordingly, the Zoning Board denied plaintiff's application in its entirety.
On August 23, 2016, plaintiff filed a complaint in lieu of prerogative writs
in the Law Division. In that complaint, plaintiff asserted four counts—three
against the Zoning Board and one against the Township. Specifically, plaintiff
alleged that the Zoning Board acted arbitrarily, capriciously, and unreasonably
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by declining to issue a certificate of pre-existing nonconformity (count one),
denying a use variance (count two), and denying a variance for the expansion of
the pre-existing nonconforming use to Building Six (count three). As to the
Township, plaintiff alleged that the Township's zoning ordinance was arbitrary,
capricious, and unreasonable (count four).
The Zoning Board and Township filed an answer. Thereafter, the trial
court conferenced the case and scheduled the matter for a final hearing on July
10, 2017. The parties agreed to postpone the trial on count four of the complaint,
which alleged that the Township's zoning ordinance was arbitrary, capricious,
and unreasonable.
After conducting the hearing as a trial de novo, on July 11, 2017, the court
read its decision into the record. The court concluded that the Zoning Board's
actions were not arbitrary, capricious, or unreasonable. On August 3, 2017, the
court entered an order of final judgment in the Zoning Board's favor on counts
one, two, and three.
After the entry of judgment, the parties consented to the dismissal of count
four against the Township. Accordingly, on January 22, 2018, the court entered
an amended order of final judgment acknowledging the dismissal of count four.
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EI Properties now appeals from the August 3, 2017 order and the January
22, 2018 order and final judgment.
II.
On appeal, plaintiff makes three arguments, contending that the trial court
erred in denying its challenge to the Resolution because (1) the entire Property
was entitled to a pre-existing, nonconforming use certification as a light
industrial park; (2) it had established the criteria for a use variance for the
Property under N.J.S.A. 40:55D-70(d)(1); and (3) Building Six should have
been granted a variance under N.J.S.A. 40:55D-70(d)(2) for an expansion of a
pre-existing, nonconforming use. We disagree.
Initially, we identify our standard of review. When reviewing a challenge
to a zoning board's determination, we use a limited, deferential standard of
review. See Dunbar Homes, Inc. v. Zoning Bd. of Adjustment, 233 N.J. 546,
558 (2018). Land use decisions "enjoy a presumption of validity." Ibid.(quoting Price v. Himeji, LLC, 214 N.J. 263, 284 (2013)). A board's action "will
not be overturned unless it is found to be arbitrary and capricious or
unreasonable, with the burden of proof placed on the plaintiff challenging the
action." Ibid. (quoting Grabowsky v. Twp. of Montclair, 221 N.J. 536, 551
(2015)).
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"A board acts arbitrarily, capriciously, or unreasonably if its findings of
fact in support of [its decision] are not supported by the record, or if it usurps
power reserved to the municipal governing body or another duly authorized
municipal official." Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 33 (2013)
(citations omitted) (first citing Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of
Adjustment, 152 N.J. 309, 327 (1998); then citing Leimann v. Bd. of
Adjustment, 9 N.J. 336, 340 (1952)). In contrast, a board's decision concerning
a question of law "is subject to a de novo review by the courts, and is entitled to
no deference since a zoning board has 'no peculiar skill superior to courts'
regarding purely legal matters.'" Dunbar Homes, Inc., 233 N.J. at 559 (quoting
Chicalese v. Monroe Twp. Planning Bd., 334 N.J. Super. 413, 419 (Law Div.
2000)). See also 388 Route 22 Readington Realty Holdings, LLC v. Twp. of
Readington, 221 N.J. 318, 338 (2015) ("In construing the meaning of a statute,
an ordinance, or our case law, our review is de novo." (citing Farmers Mut. Fire
Ins. Co. of Salem v. N.J. Prop.-Liab. Ins. Guar. Ass'n, 215 N.J. 522, 535
(2013))).
A. Certification of a Pre-Existing, Nonconforming Use
Plaintiff argues that the Zoning Board erred when it refused to certify the
pre-existing, nonconforming use of the Property as a "light industrial flex park."
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In essence, the issue here is whether plaintiff is entitled to a certification of a
pre-existing, nonconforming use for the entire Property, including all five
buildings. We agree with the Zoning Board and the trial court that plaintiff was
not entitled to such a broad certification.
The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163,
recognizes and provides certain rights to a pre-existing, nonconforming use or
structure. See N.J.S.A. 40:55D-68. In that regard, the MLUL provides that
"[a]ny 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[.]"
N.J.S.A. 40:55D-68. Accordingly, "a nonconforming use or structure is deemed
to have acquired a vested right to continue in such form despite the zoning
provisions." Bonaventure Int'l, Inc. v. Borough of Spring Lake, 350 N.J. Super.
420, 431-32 (App. Div. 2002).
The MLUL authorizes any person with an interest in land upon which the
nonconforming use exists, to "apply in writing for the issuance of a certificat e
certifying that the use . . . existed before the adoption of the ordinance which
rendered the use . . . nonconforming." N.J.S.A. 40:55D-68. The burden of
proof is on the applicant seeking the certification. Ibid. See also Berkeley
Square Ass'n, Inc. v. Zoning Bd. of Adjustment, 410 N.J. Super. 255, 269 (App.
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Div. 2009). A party can file an application for a certification of non-conforming
use either with "the administrative officer" (usually the zoning official) within
one year of the adoption of the ordinance changing the zoning, "or at any time
to the board of adjustment." N.J.S.A. 40:55D-68.
To establish the existence of a nonconforming use, an applicant must show
that the use existed on the subject property when the zoning ordinance was
adopted and the use conformed to the zoning laws in effect at its inception. See
DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 272 (2009). Moreover, the
evidence presented to the zoning board must "establish exactly what the use was
at the time of adoption of the ordinance, its character, extent, intensity and
incidents." Bonaventure Int'l, Inc., 350 N.J. Super. at 433 (quoting William M.
Cox, N.J. Zoning & Land Use Administration §11-2.2 (2002)).
The protection accorded to a pre-existing, nonconforming use, however,
is limited. "Because nonconforming uses are inconsistent with the objectives of
uniform zoning, the courts have required that consistent with the property rights
of those affected and with substantial justice, they should be reduced to
conformity as quickly as is compatible with justice." Berkeley Square Ass'n,
410 N.J. Super. at 263 (quoting Town of Belleville v. Parrillo's, Inc., 83 N.J.
309, 315 (1980)). In that regard, the right to continue a nonconforming use is
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lost through actual abandonment. Id. at 265 (citing Borough of Saddle River v.
Bobinski, 108 N.J. Super. 6, 16 (Ch. Div. 1969)).
Abandonment occurs when there is both an intention to abandon and some
overt act or failure to act that implies the owner is no longer retaining an interest
in the pre-existing use. S & S Auto Sales, Inc. v. Zoning Bd. of Adjustment,
373 N.J. Super. 603, 613-14 (App. Div. 2004) (citing Bobinski, 108 N.J. Super.
at 16-17). The applicant bears the ultimate burden of demonstrating that a pre-
existing, nonconforming use was not abandoned, however, an objector must
initially present "sufficient evidence of temporal or physical abandonment[.]"
Berkeley Square Ass'n, Inc., 410 N.J. Super. at 269.
Here, plaintiff sought to certify the use of the entire Property as a pre-
existing "light industrial flex park." The Township, however, never had a zoning
district for a light industrial flex park. Instead, before 2000, the Property was
in an L-I zoning district. That district did not approve a "flex park" or a "park"
as a permitted use. Rather, the L-I zone allowed certain identified uses, such as
manufacturing of products, wholesale and storage establishments, research
laboratories, computer centers, and general business and professional offices.
On the record before us, plaintiff first applied for a certificate of
nonconforming use in 2015. Plaintiff would, therefore, only be entitled to a
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certificate for any pre-existing, nonconforming use that had been in existence
prior to 2000, was permitted under the 1962 zoning ordinance, and had not been
abandoned prior to plaintiff's application in 2015. The record establishes that
there were at most three tenants engaged in such pre-existing, nonconforming
uses. The other tenants who were occupying the Property at the time of the
application in 2015, were engaged in uses that were approved for the existing
C-1 zoning with the H-S overlay. In short, plaintiff was not entitled to a
property-wide certification. Because it did not seek specific certifications for
the tenants who were engaged in pre-existing, nonconforming uses, the Zoning
Board also did not err by not granting such certifications.
Plaintiff argues that the Zoning Board and Zoning Officer had previously
recognized the Property as an "industrial park." In that regard, plaintiff points
to Resolution 83-42, which referred to the Property as an industrial park in
connection with an application to allow a pistol range to operate on the Property.
The general reference to an industrial park does not bind the Zoning Board to
treat the entire Property as one entity engaged in a singular pre-existing,
nonconforming use.
Plaintiff also contends that it submitted lists of tenants who had occupied
the Property and who were engaged in light industrial activity. Those lists,
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however, included tenants who no longer operated at the Property when plaintiff
made its application in 2015. At the public hearings, counsel for the Zoning
Board and Beahm both advised that they believed plaintiff had abandoned those
uses since they were no longer occurring on the Property, and the locations
where they had been occurring now housed tenants engaged in uses conforming
to the C-1 zoning.
There is no competent evidence in the record rebutting the claim that
plaintiff abandoned the nonconforming uses that are no longer occurring at the
Property. Specifically, plaintiff has provided no evidence of a "continuing and
definite" intent to resume those nonconforming uses. Berkeley Square Ass'n,
410 N.J. Super. at 268; S & S Auto Sales, Inc., 373 N.J. Super. at 624. Rather,
plaintiff's decision to rent the Property to tenants engaged in conforming uses,
the change of use throughout the Property to predominantly conforming uses,
and the substantial passage of time since many of the nonconforming uses last
operated, all support the conclusion that plaintiff intended to abandon the non-
conforming uses that are no longer operating on the Property. See S & S Auto
Sales, Inc., 373 N.J. Super. at 623. Accordingly, plaintiff was only entitled to
certificates for the specific pre-existing, nonconforming uses that still operate at
the Property.
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B. The Use Variance for the Property
Plaintiff also argues that the trial court erred in not finding that the Zoning
Board abused its discretion in denying plaintiff's application for a use variance
to allow the Property to be used as a "light industrial flex park."
The Zoning Board has authority to grant use variances for special reasons,
provided that the variances do not cause a substantial detriment to the public
good and will not substantially impair the zoning plan and zoning ordinance.
N.J.S.A. 40:55D-70(d)(1). Specifically, the MLUL provides:
The board of adjustment shall have the power to:
....
[i]n particular cases for special reasons, grant a
variance to allow . . . a use . . . in a district restricted
against such use[.]
....
No variance or other relief may be granted under the
terms of this section, including a variance or other relief
involving an inherently beneficial use, 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.
[N.J.S.A. 40:55D-70(d).]
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Special reasons are those that promote the general purpose of zoning laws
as listed in N.J.S.A. 40:55D-2. Price, 214 N.J. at 285. There are generally three
categories of circumstances where "special reasons" may be found:
(1) where the proposed use inherently serves the public
good, such as a school, hospital or public housing
facility, (2) where the property owner would suffer
"undue hardship" if compelled to use the property in
conformity with the permitted uses in the zone, and (3)
where the use would serve the general welfare because
"the proposed site is particularly suitable for the
proposed use."
[Saddle Brook Realty, LLC v. Twp. of Saddle Brook
Zoning Bd. of Adjustment, 388 N.J. Super. 67, 76 (App.
Div. 2006) (citations omitted) (quoting Smart SMR of
N.Y. Inc., 152 N.J. at 323).]
With regard to the negative criteria, the applicant must show that the
variance "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[.]" Pierce, 214 N.J. at 286 (quoting N.J.S.A. 40:55D-70). The
focus concerning the substantial detriment to the public good is on the effect of
the variance on the surrounding properties. Ibid. (citing Medici v. BPR Co., 107
N.J. 1, 22 n.12 (1987)). "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
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permitted uses as expressed through its zoning ordinance." Ibid. (citing Medici,
107 N.J. at 21).
Here, we agree with the trial court that plaintiff failed to prove that the
Zoning Board abused its discretion in denying the use variance. There was
substantial credible evidence in the record supporting the Zoning Board's
finding that granting a broad use variance would substantially impair the intent
and purpose of the Township's master zoning plan and its current zoning
ordinance. In that regard, the Zoning Board had received the views of its
planning expert. The Zoning Board was also free to reject the contrary
testimony given by plaintiffs' licensed planners. See Klug v. Bridgewater Twp.
Planning Bd., 407 N.J. Super. 1, 13 (App. Div. 2009) ("[A] planning board is
not required to accept the testimony of any expert." (citing El Shaer v. Planning
Bd., 249 N.J. Super. 323, 330 (App. Div. 1991))). Accordingly, the Zoning
Board permissibly relied upon the advice from its expert, Beahm, who opined
that the Property was not particularly suited for light industrial uses based on
the new commercial character of the corridor where the Property is located.
There is also evidence in the record that the Property would not face an
undue hardship if compelled to conform to permitted uses in the current C-1
zone. The Property is currently fully tenanted, and the majority of the tenants
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are engaged in uses that conform to uses permitted in the C-1 zone. In that
regard, the Zoning Board noted that the current C-1 zone includes the H-S
overlay and, thus, the Property has a number of uses available to it.
Finally, we note that plaintiff's request for a use variance was again based
on a broad, property-wide application. Plaintiff did not support its variance
request with a list of specific, designated tenants who require a use variance.
Thus, the Zoning Board did not abuse its discretion in denying the broad, non-
specific use variance. See Price v. Strategic Capital Partners, LLC, 404 N.J.
Super. 295, 303, 307-08 (App. Div. 2008); Victor Recchia Residential Constr.,
Inc. v. Zoning Bd. of Adjustment, 338 N.J. Super. 242, 253-54 (App. Div. 2001)
(affirming zoning board's denial of a broad use variance seeking to develop
seven single-family houses located predominately in a light industrial zone and
holding that granting the variance "would amount to de facto rezoning of so
much of the property in the light industrial zone to [a residential] zone").
C. The Variance Expanding the Pre-Existing, Nonconforming Use to
Building Six
Finally, plaintiff argues that the trial court erred in finding the Zoning
Board had not abused its discretion in denying expanding the pre-existing,
nonconforming use of the Property as a "light industrial flex park" to Building
Six. As already explained, plaintiff was not entitled to a certification of a pre-
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existing, nonconforming use for the Property's status as a "light industrial flex
park." Accordingly, the record does not support a finding that the Zoning Board
abused its discretion in denying the request for a variance seeking to expand that
alleged pre-existing, nonconforming use to Building Six.
Plaintiff also argues it should be permitted to use Building Six for "light
industrial flex space" because the Township had allowed the building to operate
with such uses for a number of years. Thus, plaintiff argues that the Township
should be equitably estopped from treating Building Six differently than any of
the other buildings on the Property. In support of this argument, plaintiff
contends that when Building Six was approved, the site plan specifically
approved it for "office and warehouse" use. Plaintiff then argues that those uses
are equivalent to the light industrial uses that were authorized in the other
buildings on the Property.
Plaintiff has not established the compelling circumstances warranting
application of equitable estoppel. See Bonaventure Int'l, Inc., 350 N.J. Super.
at 436. The record establishes that Resolution 02-10 approving Building Six did
refer to the building as an "office/warehouse building" and found that the
proposed uses were permitted in the C-2 zone. Nevertheless, those statements
do not warrant a finding that all light industrial uses are permitted in Building
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Six. Instead, the storage and warehousing that were permitted within Building
Six were only two of several different types of light industrial uses. In short,
plaintiff again seeks broader relief than it has demonstrated a right to receive.
Affirmed.
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