Kali Bari Temple v. Board of Adjustment of Tp. of Readington

• Decision Date: 02 March 1994
• Citation: 271 N.J.Super. 241,638 A.2d 839
• Parties: KALI BARI TEMPLE and Birenda Nath Ganguly, Plaintiffs-Appellants, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF READINGTON, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 241

271 N.J.Super. 241

638 A.2d 839

KALI BARI TEMPLE and Birenda Nath Ganguly, Plaintiffs-Appellants, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF READINGTON Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Jan. 20, 1994.

Decided March 2, 1994.

Albert Cohn, Saddle Brook, argued the cause for appellants (Cohn, Lifland, Pearlman, Herrmann & Knopf, attorneys; Terri Del Greco, of counsel, and Allen Susser, on the brief).

Donald K. Moore, Somerville, argued the cause for respondent (Kelleher & Moore, attorneys; Mr. Moore, of counsel and on the brief).

Before Judges SHEBELL, LONG and LANDAU.

The opinion of the court was delivered by

LANDAU, J.A.D.

Plaintiffs Birenda Nath Ganguly (Ganguly) and the Kali Bari Temple (Temple) appeal from a Law Division judgment affirming the denial of their application for a dual use variance under N.J.S.A. 40:55D-70d, a bulk variance under N.J.S.A. 40:55D-70c and certain site plan approvals by defendant-respondent Board of Adjustment of Readington Township (Board).

I

Ganguly is a Hindu clergyman. In 1989, he purchased a house on Stanton Road in Readington, located in its RR residential zone. On his attorney's advice, title to the property was taken in the names of Ganguly and the Kali Bari Temple, a tax-exempt non-profit religious organization. The property is located on 7.24 acres bordering a long blind curve on Stanton Road. The RR residential zone permits single family residences as of right, but allows religious-institution use only upon grant of special exception by the Board. Readington, Zoning Ordinance, §§ 2.1.1 to 2.1.2. The general provisions of the Township's Zoning Ordinance also prohibit "[c]ombined residential and other use of a building, except where specifically permitted." Readington, Zoning Ordinance, § 7.9.

As a spiritual leader in the Hindu religion, Ganguly wishes to hold religious services in a portion of his home. To that end, he converted his family room into a temple where he and other followers of his religion can worship. The room, which contains 574 square feet, has its own outside doorway. Ganguly's plans call for no alterations to the exterior, save for modifying the entrance doorway to the temple room with a "temple shape" arch.

Religious services are ordinarily held only by appointment, and range from one to two hours in length. Typically, only one family at a time prays together with the religious leader, who offers a message of inspiration. Ganguly makes himself available to his small congregation at all hours, except during afternoons when he has secular employment. The congregation presently numbers fifteen to twenty, and Ganguly says there is no plan to increase its size.

In addition to the above services, six major Hindu religious holidays require formal religious services on dates determined by the Indian calendar. During one holiday, the worshipers attend the Temple between ten a.m. and noon for three consecutive days. A small bell is rung during prayers but cannot be heard outside the house. At any given time during the two hour holiday prayer sessions, there are between fifteen and twenty people in attendance. Ganguly is also authorized to perform marriage ceremonies, which might be attended by as many as thirty or forty people.

Plaintiffs sought a variance to sanction use of the family room for temple purposes, while retaining residence use for the remainder of the house. Because of this use application, plaintiffs also asked for relief from small deficiencies in bulk requirements for which the property would enjoy non-conforming status but for the proposed use modification. The ordinance requires a minimum lot circle of 250 feet and a 40 foot setback. Plaintiffs' house presents a 230 foot lot circle and 36.49 foot set back. The site plan approval request was to cover any alterations which might be required by the Board.

To alleviate concerns of the Board that the congregation's size could not be controlled once variances were granted, plaintiffs were willing to limit size of the congregation to the fire code capacity of the Temple room.

Ganguly expressed willingness to comply with other conditions which might be imposed by the Board. Conditions discussed by the Board included ramping the Temple room for handicapped-accessibility and enlarging the width of the driveway to fourteen feet. The present driveway can accommodate nine parked cars, although the site has room for thirty to forty vehicles without blocking access and egress in an emergency situation. In response to the Board's concern that vehicles must be able to exit the driveway during an emergency, plaintiffs said they were willing to put additional parking spaces anywhere on the property designated by the Board.

The Board's Resolution rejected plaintiffs' application upon the following findings:

1. The primary nature of the within application is that of a use variance converting a residential structure into a dual use residence with religious services. As such, the use in question is not recognized by either the zoning ordinance or the master plan of Readington Township.

2. Since the use is dual in nature and primarily one of a residence, it cannot be classified as inherently beneficial. Given this situation, there was no showing that this particular dual use was particularly fitted to the property in question. On the contrary, it appeared that the dual use would be a much more intense use injected in the middle of an otherwise tranquil residential area. In fact, the location itself seemed to be inadequate for the religious portion of the use since it was located on a bend in a residential road wherein numerous traffic accidents had taken place.

3. In terms of the negative criteria, the dual use proposed would in fact substantially impair the intent and purpose of the zoning ordinance and the master plan since it was not recognized anywhere in both the zoning ordinance and master plan as permitted. Unlike other churches located in the area with substantial following, the proposal was dominated by the residential quality of the use proposed, making the church usage ancillary.

4. In terms of the substantial impairment of the public good, other than net evidence produced by a witness unqualified relative to property values, there was no evidence produced whatsoever which would support the conclusion that the proposed use would not have a substantial impact on the values of surrounding properties nor on the quality and nature of the usage of the surrounding residential area.

5. In addition, the use proposed did not appear to be consistent with the zoning ordinance or with the master plan, and hence did not meet the requirements of the Medici decision.

Considering these findings upon the R. 4:69 review, the trial judge determined that it was unnecessary to address the positive criteria of N.J.S.A. 40:55D-70d. The judge concluded that plaintiffs had not satisfied the negative criteria burden to demonstrate that granting the variances would not substantially impair the public good or the intent and purpose of the Zoning Plan and Zoning Ordinance, and accordingly affirmed the variance denial. We reverse.

II

Plaintiffs argue that the evidence presented at the municipal level hearing satisfied both positive and negative criteria of N.J.S.A. 40:55D-70d, as interpreted by settled case law, and that denial of their variance applications was arbitrary and capricious. ¹

The standards for granting a use variance are set forth in N.J.S.A. 40:55D-70d:

d. In particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: (1) a use or principal structure in a district restricted against such use or principal structure, (2) ..., (3) deviation from a specification or standard pursuant to section 54 of P.L.1975, c. 291 (C. 40:55D-67) pertaining solely to a conditional use, ... A variance under this subsection shall be granted only by affirmative vote of at least five members, in the case of a municipal board, or two-thirds of the full authorized membership, in the case of a regional board, pursuant to article 10 of this act.

* * * * * *

No variance or other relief may be granted under the terms of this section unless 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.

Accordingly, an applicant must show that special reasons exist for the variance (positive criteria), and that the variance can be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning ordinance (negative criteria). See Sica v. Board of Adjustment of Tp. of Wall, 127 N.J. 152, 603 A.2d 30 (1992); Medici v. BPR Co., 107 N.J. 1, 18-23, 526 A.2d 109 (1987).

In addressing the positive criteria, an applicant must establish that the proposed use is either "inherently beneficial" or that a demand for the use exists and that the use itself is particularly fitted to the property in question. See Cox, New Jersey Zoning and Land Use Administration, §§ 7-2.1 to 7-2.2 (1993).

Where a proposed use is inherently beneficial, a balancing test must be employed to determine whether the proposed use complies with the negative criteria. Sica, supra, 127 N.J. at 165-66, 603 A.2d 30. A board must first identify the public interest at stake in the proposed use, then identify any detrimental effect which would ensue were the variance to be granted. Id. The board should then determine whether the detrimental effects can be reduced by imposing reasonable conditions on the use. Id. at 166, 603 A.2d 30. Finally, the board "should weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good." Id.

As ...