Opinion
DOCKET NO. A-5686-13T3
01-11-2016
ALEXANDER GOEHRING, Plaintiff-Respondent, v. CITY OF ELIZABETH ZONING BOARD OF ADJUSTMENT, Defendant-Appellant.
Sheri K. Siegelbaum argued the cause for appellant (Scarinci & Hollenbeck, L.L.C., attorneys; Ms. Siegelbaum, of counsel; Ms. Siegelbaum and Frances E. Barto, on the briefs). Larry Lavender, Jr. argued the cause for respondent (Wiley Lavender, P.C., attorneys; Mr. Lavender, of counsel and on the brief; Robert J. Jones, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Whipple. On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-4185-13. Sheri K. Siegelbaum argued the cause for appellant (Scarinci & Hollenbeck, L.L.C., attorneys; Ms. Siegelbaum, of counsel; Ms. Siegelbaum and Frances E. Barto, on the briefs). Larry Lavender, Jr. argued the cause for respondent (Wiley Lavender, P.C., attorneys; Mr. Lavender, of counsel and on the brief; Robert J. Jones, on the brief). PER CURIAM
Defendant, City of Elizabeth Zoning Board of Adjustment, (the Board) appeals from a July 1, 2014 order of the trial court reversing the denial of plaintiff's application for zoning variances and remanding the proceeding to the Board to grant the application. For the following reasons, we affirm in part and vacate in part, and remand in part to the Board for reconsideration.
We discern the following facts from the record. Plaintiff owns a building located in an R-3 multi-family residential zone in Elizabeth which is a three-apartment residence with a basement storage area. He wishes to convert a portion of the basement storage space into a fourth apartment for his own use.
The relevant zoning ordinance permits four-apartment buildings as a conditional use; however, because the building had pre-existing non-conformities plaintiff's proposed conversion required a conditional use variance. Accordingly, plaintiff's building contractor acting as plaintiff's agent, applied to the Board for approval of conditional use and bulk variances on December 6, 2012.
Plaintiff was only planning on making changes to the inside of the building, therefore, the outside would remain unchanged. Plaintiff needed a conditional use variance because he could not meet certain setback requirements for the building which already existed. The lot area per dwelling was required to be 950 square feet and plaintiff's proposed revision was for a 625 square foot apartment. The required bedroom size was 600 square feet.
The project also required three bulk variances for already existing conditions, including front and side yard setbacks and minimum open space. Plaintiff also sought a waiver for site illumination, allowing the building to use the same outside lighting it had previously used. --------
On September 12, 2013, a hearing was held before the Board. In addition to providing his own testimony, plaintiff presented the testimony of a civil engineer and planner, as well as an architect demonstrating that he was not expanding the exterior of the building, and that the variances sought were mostly for existing conditions. Plaintiff testified that the basement apartment would be for his own use and that he would continue to maintain a storage area in the basement. When the Board expressed concern that the basement storage area might be illegally converted into a living space, plaintiff stated that he was willing to agree to restrictions on such use. At the hearing, board members repeatedly expressed a general dislike of basement apartments, despite their legality.
After the hearing, the Board voted to deny the application, which was memorialized in a resolution on October 10, 2013. In its resolution, the Board summarily denied the application.
Plaintiff filed a complaint in lieu of prerogative writ on November 22, 2013. The trial court considered submissions by both parties and heard arguments on June 30, 2014. On July 1, 2014, the trial judge issued an order reversing the Board's resolution and remanding the application in its entirety for the Board to grant the variances. This remand was conditioned upon plaintiff's assurance that the basement storage area would not be used as additional living space and that the apartment is in compliance with all applicable code provisions. The Board appealed.
On appeal, the Board argues that plaintiff failed to meet the burden of proof required for granting conditional use variances; that the Board appropriately denied the bulk variances sought; and that the trial court substituted its own judgment for that of the Board when it reversed and granted plaintiff's application.
We review the decisions of the trial court de novo, giving deference to the Board's broad discretion, and reverse only if the municipal action was arbitrary, capricious or unreasonable. See Booth v. Bd. of Adj. of Rockaway, 50 N.J. 302, 306 (1965); Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268, 296-97 (1965).
Use variances require proof of both positive and negative criteria. Sica v. Bd. of Adjustment, 127 N.J. 152, 156 (1992). To satisfy the positive criteria, the applicant must demonstrate "'special reasons' for the grant of the variance." Ibid. Therefore, "a conditional-use variance applicant must show that the site will accommodate the problems associated with the use even though the proposal does not comply with the conditions the ordinance established to address those problems." Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 299 (1994). As for the negative criteria, it necessitates "proof that the variance can be granted without substantial detriment to the public good and that it will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." Sica, supra, 127 N.J. at 156 (internal quotation marks omitted).
When evaluating a conditional use variance request, the Board considers whether the proposed site can accommodate the problems associated with the use, even though the proposed plan does not meet all the conditions contained in the zoning ordinance under a relaxed standard of proof. Coventry Square, supra, 138 N.J. at 298; TSI East Brunswick, LLC v. Zoning Bd. of Adjustment of Twp. of East Brunswick, 215 N.J. 26, 40 (2013).
Here the trial judge determined that the Board considered inappropriate criteria when it required plaintiff to demonstrate a need for the additional unit rather than requiring a showing that the site would accommodate the problems associated with use as a fourth apartment. The Board simply restated the reasons plaintiff sought a variance from open space landscaping requirements, but did not explain why the variance request was denied.
The Board's resolution stated that plaintiff failed to demonstrate a need for the additional unit but plaintiff only had to demonstrate that the site would accommodate the use rather than a "need," notwithstanding the proposed noncompliance with the statutory conditions. Coventry Square, supra, 138 N.J. at 299. The Board's resolution further cited plaintiff's failure to meet open space, landscaping, and land area requirements, but these are the precise reasons plaintiff sought a variance and, as the trial court correctly noted, are insufficient reasons to deny the request. The Board also noted its concern that the apartment may be put to illegal use at some point in the future. This speculative concern, without any additional supporting evidence, is insufficient grounds for denying plaintiff's application, especially given his willingness to agree to restrictions on such use. Finally, the Board found that the applicant failed to show how the negative criteria was met, and further found that granting the variance would have a negative impact on the zone plan. These statements are conclusory and do not satisfy the Board's obligation to make specific findings.
The Board also made it clear during the hearing that its members had personal aversions to basement apartments, despite their admitted legality. Given the foregoing, the trial court was correct in finding that the Board insufficiently explained its reasoning and that it considered inappropriate criteria in denying plaintiff's request.
However, the trial court did not make specific findings of fact in support of its decision to grant the variance. We have held that, where the record contains inadequate administrative findings, justice is best served by remanding the case to the Zoning Board for reconsideration and specific findings, wherein it may require further proofs and obtain additional information regarding the disputed facts. See Smith v. Fair Haven Zoning Bd. of Adj., 335 N.J. Super. 111, 123 (App. Div. 2000).
We affirm the trial court's reversal of the Board's decision, vacate the portion of the order granting the variance and remand to the Zoning Board for further proceedings in conformity with this opinion. We do not retain jurisdiction.
Affirmed in part, vacated in part and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION