Quick Plus Realty, LLC v. City of Bridgeton Zoning Bd.

• Decision Date: 13 June 2019
• Docket Number: DOCKET NO. A-4509-17T4
• Parties: QUICK PLUS REALTY, LLC, Plaintiff-Appellant, v. CITY OF BRIDGETON ZONING BOARD, VISHNU PATEL (improperly pleaded as Vishna Patel) and DIPAK PATEL, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

QUICK PLUS REALTY, LLC, Plaintiff-Appellant, v. CITY OF BRIDGETON ZONING BOARD, VISHNU PATEL(improperly pleaded as Vishna Patel) and DIPAK PATEL, Defendants-Respondents.

DOCKET NO. A-4509-17T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted March 25, 2019

June 13, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Messano and Gooden Brown.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0618-17.

Law Offices of Igor Sturm, attorneys for appellant (William C. MacMillan, on the briefs).

Kathleen McGill Gaskill, attorney for respondent City of Bridgeton Zoning Board.

Howard D. Melnicove, attorney for respondents Vishnu Patel and Dipak Patel.

PER CURIAM

Pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, a zoning board of adjustment may "grant a variance . . . to permit . . . a use . . . in a district restricted against such use . . . ." N.J.S.A. 40:55D-70(d). A variance may be granted "[i]n particular cases for special reasons," the so-called positive criteria, but the applicant must also demonstrate "that such 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[,]" the so-called negative criteria. N.J.S.A. 40:55D-70; see Price v. Himeji, LLC, 214 N.J. 263, 285-86 (2013) (explaining the positive and negative criteria).

Defendants Dipak Patel and his father, Vishnu Patel, (the applicants) were contract purchasers of certain property in Bridgeton (the property). The property was located in the R-1 zone, a low-density residential district, but immediately adjacent to the C-4 commercial district, and had been used as a funeral home for approximately sixty years. A religious group purchased the property in December 2009, intending to convert it into a church. The group abandoned that plan, and the property fell into disrepair.

The applicants wanted to demolish the existing structure and build a new commercial building housing a beauty salon and beauty supply store. They applied to defendant City of Bridgeton Zoning Board of Adjustment (the Board) for a use variance pursuant to N.J.S.A. 40:55D-70(d)(1). The applicants provided public notice for the June 8, 2017 hearing, specifying the location of the property and the date and place of the hearing. The notice also stated:

The applicants . . . are seeking a use variance for the development of a retail sales and beauty salon facility which type of commercial uses are not permitted in the R-1 [z]oning [d]istrict, in which the property is located.

A copy of said application and documents are on file with the . . . Board . . . and may be inspected during business hours by all interested parties prior to said meeting.

Dipak Patel testified before the Board, as did George Scull, a local realtor, and Thomas J. D'Arrigo, an architect, in support of the application. Scull opined that it was not financially feasible to demolish the existing structure and parking lot and construct a new single-family home. D'Arrigo described the proposed development, which he opined would be a substantial aesthetic improvement from the existing condition of the property. Dipak Patel admitted that the applicants likely would still purchase the property without a use variance.

Members of the public expressed concerns about increased traffic in the area, and one suggested that the public notice should have contained the specific address of the Board. The attorney for plaintiff Quick Plus Realty, LLC maintained that the proposed use violated the intent of the R-1 zone. He acknowledged that plaintiff's managing member was related to the applicants, and there was "some type of [] family . . . disagreement," although he did not elaborate.

The Board approved the variance application by a vote of five-to-two, conditioned on subsequent approval of a site plan. See N.J.S.A. 40:55D-76(b) (permitting bifurcation of application for development and requiring approval to be conditioned on subsequent approvals). In its July 13, 2017 memorializing resolution, the Board found the applicants satisfied the "positive criteria" by establishing "special reasons" for the variance, "as the proposed site [was] particularly suited for this intended use." It noted the current building had been used for commercial purposes for at least sixty years and "[t]he developed existing conditions . . . [were] completely inconsistent with residential use." Furthermore, converting the property to a residential use "would be cost prohibitive . . . ." Therefore, the Board held that compelling the residential useof the property would cause it to "remain in its present vacant and deteriorating state and in a state of inutility."

The Board also concluded the applicants "satisfied the negative criteria," because it could grant the variance "without substantial detriment to the public good." Regarding traffic concerns, the Board noted the proposed use was less intense than the prior use of the property as a funeral parlor. The Board also found it could grant the variance "without substantial impairment of the zoning plan as the actual historical development of the . . . [p]roperty ha[d] been commercial and the . . . application [was] converting one pre-existing commercial use to another."

Plaintiff filed a complaint in lieu of prerogative writs challenging the Board's approval. It alleged that the notice was inadequate and the applicants failed to present sufficient evidence supporting the Board's findings regarding the positive and negative criteria. At argument before the Law Division judge, plaintiff challenged the Board's finding of the property's economic inutility, noting Dipak Patel's testimony. It disputed the conclusion that the application satisfied the "negative criteria" because the Board premised this on consideration of the already "pre[-]existing, non-conforming use" of the property.

In a comprehensive oral decision, Judge Benjamin C. Telsey addressed these arguments and concluded the Board properly considered the evidence supporting the positive and negative criteria under N.J.S.A. 40:55D-70(d) and did not act in an arbitrary, capricious or unreasonable manner in granting the variance. He dismissed plaintiff's complaint and this appeal followed.

We set forth some well-known principles. "Our standard of review for the grant or denial of a variance is the same as that applied by the Law Division." Advance at Branchburg II, LLC v. Twp. of Branchburg Bd. of Adjustment, 433 N.J. Super. 247, 252 (App. Div. 2013) (citing Bressman v. Gash, 131 N.J. 517, 529 (1993)). "[Z]oning boards, 'because of their peculiar knowledge of local conditions[,] must be allowed wide latitude in the exercise of delegated discretion.'" Price, 214 N.J. at 284 (second alteration in original) (quoting Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965)). A zoning board's decision "enjoy[s] a presumption of validity, and a court may not substitute its judgment for that of the board unless there has been a clear abuse of discretion." Ibid. (citing Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002)).

While we accord substantial deference to the factual findings of the Board, its conclusions of law are subject to de novo review. Wyzykowski v. Rizas, 132N.J. 509, 518 (1993). "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, 214 N.J. at 284 (quoting Kramer, 45 N.J. at 296).

Plaintiff contends the public notice was insufficient, thereby depriving the Board of jurisdiction to hear the application. Plaintiff also argues that the applicants failed to adduce sufficient evidence supporting both the positive and negative criteria. Having considered these arguments in light of the record and applicable legal standards, we affirm.

The MLUL requires that the public notice for a variance application include: (1) "the date, time and place of the hearing," (2) "the nature of the matters to be considered," (3) "an identification of the property proposed for development by street address," and (4) "the location and times at which" any supporting documents for application are available. N.J.S.A. 40:55D-11. Plaintiff argues the applicants' public notice was insufficient as to (2) and (4), because the notice omitted details as to the nature of the application and failed to indicate where the supporting documents were available for inspection. The argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). We add only the following.

"[P]roper public notice in accordance with the requirements of the MLUL is a jurisdictional prerequisite for a zoning board's exercise of its authority." Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 350 (App. Div. 2008) (citing Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 237 (App. Div. 1996)). The "[f]ailure to provide proper notice deprives a municipal planning board of jurisdiction . . . ." Shakoor Supermarkets, Inc. v. Old Bridge Twp. Planning Bd., 420 N.J. Super. 193, 201 (App. Div. 2011) (citing Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment, 154 N.J. 62, 79 (1998)).

The MLUL only requires "a common sense description of the nature of the application, such that the ordinary layperson could understand its potential impact upon him or her . . . ." Perlmart, 295 N.J. Super. at 239. The notice here did that. We also reject, as did Judge Telsey, any claim that advising the public all relevant documents were...