Pagano v. Zoning Bd. of Adjustment of Tp. of Edison

• Decision Date: 01 May 1992
• Citation: 257 N.J.Super. 382,608 A.2d 469
• Parties: Frank PAGANO and Tom Zecchino t/a T & F Outdoor Sports, Plaintiffs, v. ZONING BOARD OF ADJUSTMENT OF the TOWNSHIP OF EDISON, Defendant.
• Court: New Jersey Superior Court

Page 382

257 N.J.Super. 382

608 A.2d 469

Frank PAGANO and Tom Zecchino t/a T & F Outdoor Sports, Plaintiffs, v. ZONING BOARD OF ADJUSTMENT OF the TOWNSHIP OF EDISON, Defendant.

Superior Court of New Jersey, Law Division,

Middlesex County.

May 1, 1992.

Bernard H. Shihar, Metuchen, for plaintiffs (Convery, Convery & Shihar, attorneys).

Karl R. Lawnick, New Brunswick, for defendant.

WOLFSON, J.S.C.

I. Factual Background

Plaintiffs Frank Pagano and Tom Zecchino (trading as T and F Outdoor Sports) appeal from the September 17, 1991 resolution of the Zoning Board of Adjustment of the Township of Edison (the "Board") denying their application for a use variance to permit the utilization of the portion of premises located at 523 Raritan Center Parkway for a pistol range and for retail sales of hunting and fishing supplies. ¹ The subject property is located in the L-I (PUD) zone which allows neither the pistol range nor retail sales. ² A public hearing was held on June 18, 1991, at which the applicants provided the testimony of Frank Pagano (one of the partners of T and F Outdoor Sports) and Jack Giordano (a Port Authority police officer and National Rifle Association (NRA) certified firearms instructor) in support of the variance request.

Mr. Pagano testified ³ that the applicants were licensed to sell firearms by both Federal and State authorities as would be all employees, and that these requirements would be continually monitored by Municipal, State, and Federal authorities. Though not a planner, he opined that the proposed location for the pistol range, in the Raritan Center, was an appropriate site due to its location away from residential areas, while being convenient to Edison residents who presently must travel to other municipalities to engage in recreational shooting. He also concluded that the operation of the pistol range was safe, noting as follows:

No more than one individual would utilize a shooting stall at one time;

NRA certified officers would provide instruction and insure range safety;

Range safety equipment would be installed according to the specifications of Detroit Armory, an experienced company in the installation of range safety equipment;

Special security arrangements, including a vault for the storage of the firearms, electronic sensors, as well as direct emergency access to the local police department, would be installed.

In response to concerns about the noise levels that would be generated by the proposed use, Pagano explained:

Inside the range, hearing protection (as well as eye protection) would be mandatory through the use of special equipment;

Soundproofing would be required within the facility;

Little, if any, noise would be discernible outside the range, and that the existing mechanic shop, which shared the existing structure, would be louder That any requirements of the health department in this context would be addressed and satisfied. ⁴

The next witness was Jack Giordano, a Port Authority police officer and NRA certified firearms instructor, who testified as follows:

The shooting range installation company, (Detroit Armory) would use "state of the art" equipment and techniques and has been recognized as being safe, clean and otherwise desirable insofar as such ranges are concerned.

The U.S. government estimates that 70 million Americans own firearms and that there is a firearm in one out of every two homes.

From 1968 to 1988 firearms accidents dropped 52 percent, primarily because of places to shoot, practicing and increased effectiveness of safety programs and training.

Legal shooting ranges enhance the safety of persons both outside and within as contrasted against the discharge of firearms in a basement or outdoors.

The patrons of the range would most likely come from Edison although some would come from other areas.

The patrons would likely be good citizens.

Many police officers would utilize the range since they do not have a facility available on their own time.

Training would be provided to all employees working the range as NRA certified firearms instructors.

Several citizens also testified both in favor of and in opposition to the proposed use, although such testimony for the most part, lacked an adequate factual foundation, representing mere "opinions" or "feelings". ⁵

The public hearing was closed on August 20, 1991. Following the Board's deliberations the application was denied four votes to three. A resolution memorializing this decision was adopted on September 17, 1991, which essentially concluded:

(1) that the applicants had failed to establish "special reasons" as a matter of law;

(2) that the use variance, if granted, would result in substantial detriment to the public good and would substantially impair the intent and purpose of the Township's master plan and zoning ordinance; and

(3) that the applicant failed to reconcile the proposed pistol range with the omission of this type of use from the L-I zone or any other district within the Township. ⁶

II. Scope of Review

In reviewing any decision of a zoning board, the court's power is tightly circumscribed. In recognition of the fact that local officials are "thoroughly familiar with their communities' characteristics and interests and ... are undoubtedly the best equipped to pass initially on such applications for variances," Ward v. Scott, 16 N.J. 16, 23, 105 A.2d 851 (1954), the Board's decisions are cloaked with a presumption of validity, which presumption attaches to both their acts and their motives. Public bodies, because of their peculiar knowledge of local conditions, are thus allowed wide latitude in the exercise of the discretion delegated them under the Municipal Land Use Law. N.J.S.A. 40:55D-1 et seq.

So long as there is substantial evidence to support it, the court may not interfere with or overturn the decision of a municipal board. Even when doubt is entertained as to the wisdom of the board's action, or even as to some part of it, there can be no judicial declaration of invalidity absent a clear abuse of discretion by the board. Consequently zoning determinations may be set aside only when the court has determined the decision to be arbitrary, capricious or unreasonable. Medici v. BPR Co., 107 N.J. 1, 15, 526 A.2d 109 (1987); Kramer v. Sea Girt, 45 N.J. 268, 296, 212 A.2d 153 (1965).

III. The Merits of the Variance Application

Under N.J.S.A. 40:55D-70(d), a use variance may be granted upon: a) an affirmative showing of "special reasons" (the "positive criteria"); together with b) a showing that the variance, if granted, will not result in substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance (the "negative criteria").

In Kohl v. Fair Lawn, 50 N.J. 268, 234 A.2d 385 (1967), and more recently in Medici, supra, the Supreme Court articulated the principles and standards to guide this court in determining whether, pursuant to this statutory scheme, a use variance may be granted.

Applying these standards, the Board's decision in this case was plainly deficient in several respects. Not only did the Board fail to provide a sufficient factual basis for rejecting the applicants' purported special reasons and their claimed satisfaction of the negative criteria, but it committed several legal errors as well. For the reasons set forth below, the resolution of September 17, 1991 must be vacated and the matter remanded for further proceedings not inconsistent with this opinion.

A. The Positive Criteria--Special Reasons

As was recognized long ago in Grimley v. Ridgewood, 45 N.J.Super. 574, 581, 133 A.2d 649 (App.Div.1957), "special reasons" is a flexible concept and no precise formula is feasible. Accordingly, each case must turn on its own facts and circumstances. Kohl v. Fair Lawn, supra, 50 N.J. at 276, 234 A.2d 385; Degnan v. Monetti, 210 N.J.Super. 174, 182, 509 A.2d 277 (App.Div.1986). The "special reasons" standard has generally been defined in relation to the purposes of zoning ( N.J.S.A. 40:55D-2), emphasizing the promotion of the general welfare as the zoning purpose that most clearly exemplifies its meaning. Medici, supra, 107 N.J. at 18, 526 A.2d 109.

The Supreme Court has repeatedly held that the special reasons standard is satisfied as a matter of law by uses which inherently serve the general welfare. ⁷ See Sica v. Bd. of Adj. of the Tp. of Wall, 127 N.J. 152, 603 A.2d 30 (1992) (private head trauma facility); Andrews v. Ocean Tp. Board of Adjustment, 30 N.J. 245, 249, 152 A.2d 580 (1967) (education of children); DeSimone v. Greater Engelwood Housing Corp., 50 N.J. 428, 440, 236 A.2d 138 (1970) (quasi-public housing).

Where the use is not of the type which inherently benefits the general welfare, ⁸ special reasons to support a use variance may be established by a finding that the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought. ⁹ Medici, supra, 107 N.J. at 4, 18, 24, 526 A.2d 109; Kohl, supra, 50 N.J. at 279-280, 234 A.2d 385.

Plaintiffs' contention is that special reasons were established here because two of the expressed purposes of zoning, e.g. promotion of the general welfare and provision of adequate recreational facilities, would be advanced by this use. ¹⁰ However, the record is devoid of any proof demonstrating that the general welfare was advanced due to the location of the pistol range at that site. Even though the general welfare may admittedly be advanced by the proposed use, absent proof that the general welfare would not similarly be advanced by locating the pistol range at other locations, ¹¹ or proof that no other suitable sites exist, the applicants could not be said to have satisfied their burden of establishing the particular suitability of the Raritan Center site for the proposed use. ¹² Indeed, as cautioned by the Supreme Court in Kohl, supra:

[I]f the general social benefits of any...