Urban Farms, Inc. v. Borough of Franklin Lakes

• Decision Date: 08 May 1981
• Citation: 431 A.2d 163,179 N.J.Super. 203
• Parties: URBAN FARMS, INC. and Urban Farms Shopping Center, Inc., Plaintiffs, Respondents, v. BOROUGH OF FRANKLIN LAKES, Defendant-Appellant. URBAN FARMS, INC., a corporation of the State of New Jersey, Plaintiff- Appellant, v. The BOROUGH OF FRANKLIN LAKES, a municipality under the laws of the State of New Jersey, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 203

179 N.J.Super. 203

431 A.2d 163

URBAN FARMS, INC. and Urban Farms Shopping Center, Inc., Plaintiffs, Respondents, v.BOROUGH OF FRANKLIN LAKES, Defendant-Appellant.

URBAN FARMS, INC., a corporation of the State of New Jersey, Plaintiff- Appellant, v.The BOROUGH OF FRANKLIN LAKES, a municipalityunder the laws

of the State of New Jersey, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Feb. 17, 1981.

Decided May 8, 1981.

Donald A. Klein, Hackensack, for Borough of Franklin Lakes (Winne, Banta, Rizzi & Harrington, Hackensack, attorneys; Joseph L. Basralian, Hackensack, of counsel).

Jerome A. Vogel, Hawthorne, for Urban Farms, Inc. and Urban Farms Shopping Center, Inc.(Jeffer, Walter, Tierney De Korte, Hopkinson & Vogel, Hawthorne, attorneys; Robert M. Schwartz, Hawthorne, on the brief).

Before Judges ALLCORN, PRESSLER and FURMAN.

The opinion of the court was delivered by

PRESSLER, J. A. D.

These appeals, consolidated by the court on its own motion, involve a land-use controversy between the Borough of Franklin Lakes and Urban Farms, Inc., the developer of a proposed nursing home, formerly a permitted special-exception use.

The nursing home development plan here in issue was first presented to the municipality for special-exception approval in 1972 and was ultimately rejected by it in 1977.Urban Farms challenged this rejection by way of an action in lieu of prerogative writs and obtained a judgment directing that it be issued a building permit subject to specified conditions.Franklin Lakes' appeal from that judgment is the first of the appeals now before us.While that appeal was pending, the municipality in 1979 amended its zoning ordinance to eliminate nursing homes as a permitted or conditionally permitted use anywhere within its borders.That action was sustained by a different judge of the Law Division as a valid exercise of the zoning power, and Urban Farms' appeal from the judgment so declaring is the second of the appeals before us.The fundamental issue projected by this complex of litigation is whether this developer can be deprived of the apparently decisive judicial declaration of its rights by a subsequent zoning ordinance barring its proposed use.In the factual circumstances before us and for the reasons hereinafter set forth, we hold that it may not.

According to the record, Franklin Lakes is a small, primarily residential but not wholly developed municipality, in northwestern Bergen County.Its geographical area is some ten square miles and its population has increased from 7,550 in 1970 to 8,754 in 1980.¹Urban Farms owns a parcel of land just under 26 acres in size, located in a residential zone at the southwest intersection of two main local arteries, Franklin Lake Road and High Mountain Road.Despite the residential zoning of the subject premises, they are virtually surrounded by commercial, public and quasi -public uses, including a privately-owned golf club complex, a public elementary school, a parochial elementary school and convent building, a municipal fire house, a gasoline station, a shopping center and, adjacent to the shopping center, a sewage treatment plant, proposed to be enlarged to handle the projected needs of the nursing home.

The zoning ordinance, prior to its 1979amendment, provided for five categories of permissible conditional uses in the residential districts of the borough, including churches and church-related uses, hospitals and nursing homes, public and private elementary and secondary schools, golf courses, and nonprofit recreational facilities.²Approval of conditional uses were made subject to prior administrative findings that the specifically proposed use "will not be detrimental to the health, safety and general welfare of the community and is reasonably necessary for the convenience of the community and will not be injurious to the remainder of the district as a place of residence."The conditional uses were also subject to minimum bulk requirements dependent upon the category of use involved.In the case of nursing homes, the limiting schedule required a 25-acre minimum lot size, 200-foot road frontage and setback from all property lines, 10% maximum building coverage, 2-story maximum height, specified parking and buffer strip requirements and a specification of permitted accessory uses.

In 1972 Urban Farms, on the basis of a plan fully conforming with the ordinance requirements, sought and obtained special exception approval for a nursing home on the site in question.The approval was, however, conditioned upon the developer obtaining a certificate of need from the State Department of Health within one year.Urban Farms timely applied for the certificate of need but because of a Department of Health moratorium on nursing home approvals, was not successful in obtaining the certificate until January 1976.That certificate, in accordance with the submitted application, granted approval for a facility containing 120 long-term nursing beds subject to the developer's commitment to make at least 42 of those beds available for Medicaid recipients.

Since Urban Farms had not obtained its certificate of need within the one-year period prescribed by the original approval of its special exception application, it was required to reapply to the board of adjustment.Because of neighborhood opposition to the nursing home proposal which had developed in the interim, including opposition by a number of neighbor-attorneys, each representing himself, the board of adjustment proceedings were inordinately protracted, consuming 12 sessions and the presentation by Urban Farms of the testimony of a variety of experts, including an engineer, architect, traffic planner, nursing home administrator and real estate experts.The objectors presented countering experts.Ultimately, in December 1976 the board of adjustment, by a commendably thorough and detailed resolution, recommended to the governing body that it approve the special exception use subject to various terms and conditions to which the applicant made no objection.³The mayor and council however, rejected the recommendation and disapproved the application.

It was the view of the trial judge, based on the record of the local administrative proceedings, that the governing body's disapproval was arbitrary and capricious, and we agree substantially for the reasons expressed by Judge Petrella in his oral opinion.We add, however, several observations.

First, despite the unwarranted findings by the mayor and council to the contrary, the record is overwhelmingly supportive of the conclusion that the proposed use meets the negative criteria of both the ordinance itself and the enabling legislation pursuant to which the special exception was sought.Indeed, the minimal intensity of the use in relation to the size of the parcel, its location at an intersection generally devoted to nonresidential uses, the capacity of the involved roads to absorb whatever traffic the nursing home might generate, and the proposed colonial architecture of the planned single-story structure are factors which, among others, leave no question as to the exceptional suitability of the site for the proposed use and its minimal intrusion on the neighboring residential uses.

Even more compelling, however, than its compliance with the negative criteria is the compliance by the proposed use with the affirmative criterion of the ordinance, namely, its reasonable necessity for the convenience of the community.In this context we note first that a special exception or conditional use permitted by local zoning ordinance is not necessarily dependent upon a showing by the applicant that the use will affirmatively serve a specific zoning desideratum.The so-called special reasons prerequisite to the grant of a use variance were never intrinsic to the concept of a special exception or conditional use.Rather, a special exception or conditional use is a permitted use, subject to specific special controls and conditions.It is, moreover, a use which the municipality recognizes as not incompatible with the uses in the zone otherwise permitted but at the same time one which is not necessarily suitable everywhere in the district.SeeVerona, Inc. v. West Caldwell, 49 N.J. 274, 282, 229 A.2d 651(1967);Tullo v. Milburn Tp., 54 N.J.Super. 483, 490-491, 149 A.2d 620(App.Div.1959).The concept of a use variance, on the other hand, relates to a use prohibited in the district.Granting of both a special exception and a use variance was, under former N.J.S.A. 40:55-39, dependent upon a showing that the negative criteria of nonimpairment of the zone plan and lack of detriment to the public good were met.⁴But only the grant of a use variance required proof of special reasons grounded in legitimate zoning considerations the so-called affirmative criterion.Thus, it is apparent that the ordinance here in question, by imposing upon special exception uses the further requirement of a showing of its reasonable necessity for the convenience of the community, in effect superimposed upon the special exception use a special reasons criterion, thereby creating a hybrid special exception-use variance category in which the special exception use is virtually indistinguishable from the use variance.And in this posture it further appears that if an applicant for a special exception use were to have met all of the criteria of the ordinance, both affirmative and negative, he would thereby also have demonstrated his entitlement to a use variance as well.

We further note that the uses permitted by this ordinance as special exceptions in a residential zone are, to a large extent, within that category of uses generally classified as public or quasi -public institutional uses which are so inherently beneficial to the community that, whether or not nonprofit, they are susceptible to rejection by the municipality only if the...