SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3114-14T3

DR. AURORA BAIRAN,

Plaintiff-Respondent,

v. 

BOROUGH OF CLOSTER ZONING

BOARD OF ADJUSTMENT,

Defendant-Appellant.

_____________________________________________

Argued October 26, 2016 – Decided

Before Judges Fuentes, Simonelli and Gooden 

Brown.

On appeal from the Superior Court of New 

Jersey, Law Division, Bergen County, Docket 

No. L-4268-14.

Michael B. Kates argued the cause for 

appellant (Kates Nussman Rapone Ellis & Farhi, 

LLP, attorneys; Mr. Kates, of counsel and on 

the brief). 

Andrew S. Kohut argued the cause for 

respondent (Wells, Jaworski & Liebman, LLP, 

attorneys; Mr. Kohut, on the brief). 

 The opinion of the court was delivered by 

GOODEN BROWN, J.A.D.

NOT FOR PUBLICATION WITHOUT THE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.

November 21, 2017
2 A-3114-14T3

Defendant Borough of Closter Zoning Board of Adjustment 

(Board) appeals from a February 26, 2015 Law Division order, which

reversed the Board's denial of plaintiff Aurora Bairan's use 

variance application for her property located on Harrington Avenue 

in Closter. After reviewing the record and applicable legal 

principles, we reverse.

I.

We glean the following facts from the record. The property 

is a long, narrow lot, measuring forty feet in width and 224 feet 

in depth. It contains three separate buildings located one behind 

the other, designated as Building A, B, and C. Building A fronts 

along Harrington Avenue and has two second-floor residential 

units, a first-floor commercial storefront tenant facing the 

street, and, in the rear, a first-floor 368 square foot residential 

unit which is the subject of this appeal. Building B is set back 

approximately three to four feet behind Building A and has two 

residential units. Building C is a single-family dwelling located 

in the rear of the property. In total, there are six residential

units and one commercial space on the property. Between Building 

B and C is a paved area, which is used as a parking area for the 

tenants. 

Plaintiff has owned the property since 1985 and has 

continuously used it in the same manner in which it had been used 
3 A-3114-14T3

well before her ownership. On October 26, 2011, following an 

investigation into various zoning deficiencies, the Borough's 

Zoning Officer denied plaintiff's continued use of the property 

in the same manner it had been used, and directed plaintiff to 

file an application with the Board for relief. Pursuant to 

N.J.S.A. 40:55D-70(a), plaintiff appealed the Zoning Officer's 

decision to the Board and sought either confirmation that the 

existing uses of multiple structures on one lot were legally 

existing, nonconforming structures and uses pursuant to N.J.S.A.

40:55D-68, or, in the alternative, use and bulk variances pursuant 

to N.J.S.A. 40:55D-70(d), sanctioning the existing uses and 

structures as they had existed since at least 1985 when plaintiff 

acquired the property. 

On December 18, 2013, the Board voted to sanction the three 

buildings and five of the six residential units on the ground that 

they predated the Borough's 1940 zoning ordinance, and their 

nonconforming status was therefore protected under N.J.S.A.

40:55D-68. The Board noted that the property is located in the 

Borough's District No. 3 "Business Area[,]" which permits "oneand two-family" residential dwellings "as well as retail 

commercial uses." Although District No. 3 "clearly permits and 

anticipates mixed commercial/residential buildings[,]" no "more 

than two" residential units are permitted "in one building, with 
4 A-3114-14T3

or without a commercial use as well." Therefore, the Board 

concluded that while "[t]he one[-]family use" in Building C and 

"[t]he two-family use" in Building B were "permitted[,]" Building 

A was "non-conforming based on the presence of three [residential]

dwellings[,]" which is prohibited in that zone. Accordingly, as 

to the 368 square foot first-floor residential unit in Building 

A, the Board unanimously upheld the Zoning Officer and denied the 

unit historical recognition because plaintiff was unable to 

provide evidence of its pre-zoning existence. 

The following month, plaintiff requested a use variance under

N.J.S.A. 40:55D-70(d)(1) to allow her to continue to use the unit

as the third residential unit in Building A and sixth residential 

unit on the property. Plaintiff also sought a parking space 

variance, allowing her to provide only seven parking spaces where 

sixteen were required, and approval of an amended site plan for 

improvements recommended by the Board.

At the January 15, 2014 hearing on the use variance, plaintiff 

testified in support of her application along with two expert 

witnesses, Michael Hubschman and Steve Lydon. There were no 

objectors at the hearing. Plaintiff testified that during her 

ownership of the property, the residential unit had been regularly 

occupied without any complaints regarding nuisances, parking, or

ingress and egress of the property. Further, plaintiff received 
5 A-3114-14T3

no inquiries about using the unit for commercial purposes and did 

not believe the unit was a suitable space for commercial use given 

its location.

Hubschman, a licensed civil engineer, opined that due to the 

narrow passageway for vehicles to access the building, the unit 

is better suited for residential purposes to avoid the additional 

traffic attendant to commercial use. Hubschman acknowledged, 

however, that there was a municipal parking lot approximately 100 

feet from the property and street parking available. In addition, 

after describing how the unit is separated from the rest of 

Building A, Hubschman explained that combining the unit with the 

existing commercial space was illogical because it could not be 

done without removing and relocating the existing stairwell 

leading to the second floor, or remodeling the existing foyer. He 

admitted, however, that it was possible to have "two side-by-side 

stores[.]" Much of Hubschman's rationale supporting the continued 

residential use of the unit was predicated on the fact that the 

unit had functioned in that capacity for over thirty years. 

Lydon, plaintiff's second expert witness and a licensed 

professional planner, opined that the residential use of the unit 

was "a better fit[,]" and promoted Smart Growth principles by 

providing affordable housing and opportunities to live near the 

Borough's downtown and public transportation. According to Lydon, 
6 A-3114-14T3

the "master plan" and the "land use plan" were reexamined in 2008,

"and the reexamination report recommend[ed] allowing residential 

apartments over ground floor retail as an inducement to improve 

and retenant ground floor retail spaces." Lydon acknowledged that 

the current application does not "squarely meet the recommendation 

of the master plan because it is a first floor residential space 

. . . , not a second floor[.]" However, he believed that "the 

overall intent of having mixed uses in downtown is furthered by 

this application[,]" even if "not exactly as laid out by the 

[B]orough." 

Lydon disagreed with the Board Chairman that the "quality of 

life" issues associated with a "first floor" apartment "on [M]ain 

[S]treet[,]" including engine fumes, "traffic going by[,]" 

"noise," "security concerns," and the elevated "density factor," 

were legitimate concerns. Lydon explained that although Building 

A is "the only building that's readily visible from the street[,]" 

the unit's location in the rear of Building A gives it no presence 

along Harrington Avenue. According to Lydon, while the lack of 

street presence is not suitable for commercial purposes, it is 

ideal for residential use. 

Lydon also testified that given the unit's proximity to the 

five other residential units, using the unit as a residential 

space was compatible with all of the other uses in the rear of the 
7 A-3114-14T3

property. Lydon went on to say that converting the unit to 

commercial space would most likely exacerbate internal traffic and 

safety concerns, whereas the residential use limited the amount 

of traffic generated. Lydon also agreed with Hubschman that, 

"from a site layout perspective[,]" the unit could not be 

reasonably adapted into a "commercial space[,]" and, given the 

glut of commercial space available in the Borough, transforming 

the unit into commercial space, with its significant physical 

constraints, would not benefit the Borough. Lydon pointed to the 

property's "very high occupancy rate" to "demonstrate[] a need for 

this type of use, a small apartment, in this particular location."

Lydon opined that overcoming the physical limitations 

inherent in the building to convert the space to commercial use

would cause "undue hardship, which is a basis under the Municipal 

Land Use Law for the granting of a use [variance] application[.]" 

Lydon concluded that allowing another residential unit would have 

little to no impact on the neighborhood given its compatibility 

with the surrounding area, particularly since residential uses are 

already permitted in the zone, the property was developed long 

before the adoption of the Borough's Zoning Ordinance or Master 

Plan, and residential use "work[ed] well" for the last thirty 

years.
8 A-3114-14T3

Following the hearing, the use variance failed to achieve the 

super-majority of five votes mandated by N.J.S.A. 40:55D-70(d). 

The vote was four in favor of granting the use variance and three 

against. Because the use variance was denied, the Board did not 

vote on the parking space variance or the amended site plan. The 

memorializing resolution, adopted on April 16, 2014, identified 

the exhibits, summarized some of the testimony, and recited the 

applicable law. The resolution acknowledged that plaintiff 

proffered proofs through Lydon's testimony that her "application 

advances the promotion of the general welfare by providing 

sufficient space in appropriate locations for a variety of uses, 

including residential and commercial[.]" However, the resolution 

indicated the Board could not "conclude[] that [plaintiff] would 

face 'undue hardship'" if it "disallowed" the ground floor 

residential unit in Building A. On the contrary, because Building 

A had "none of the[] deficiencies" present in Buildings B and C 

that would preclude commercial use, it could "accommodate a 

conforming commercial use[,]" and "it is on this basis that three 

Board members opposed a ground floor residential use" in Building 

A. 

On May 6, 2014, plaintiff filed a complaint in lieu of 

prerogative writs in the Law Division challenging the Board's 

denial. The trial court conducted a bench trial on the record 
9 A-3114-14T3

below on December 8, 2014. On February 10, 2015, the court issued 

a written decision reversing the Board's denial of the use variance 

and entering judgment in favor of plaintiff. The court concluded 

that "the Board ha[d] not based its conclusions in the Resolution 

on evidence in the record." The court explained:

In the instant matter, the court finds 

the Planning Board acted in an arbitrary, 

capricious and unreasonable manner regarding 

the [a]pplication. Further, plaintiff has met 

her burden under N.J.S.A. 40:55D-70. 

Plaintiff has demonstrated that she would 

suffer an undue hardship if she is compelled 

to make the unit suitable for commercial use. 

Also, the site is particularly suitable for 

residential use. The unit is not visible from 

the street[,] and residential use is 

compatible with other uses in the rear of the 

[p]roperty.

Additionally, plaintiff has proven that 

residential use of the unit does not create a 

substantial detriment to the public good, and 

the intent and purpose of the zone plan and 

zoning ordinance will not be substantially 

impaired. There are no objecting neighbors 

or community members, and residential use is 

consistent with surrounding property use. 

Further, defendant has not presented any 

compelling evidence as to why a variance 

should not be granted in this instance. The 

unit has been utilized as an apartment for 

over thirty years, and it has not interfered 

with the nature or intent of the zoning 

ordinance or plan. No evidence has been 

presented by defendant proving a deleterious

effect on the community. Furthermore, no 

evidence has been presented to support the 

findings made in the resolution. The decision 

of the Board must be based on evidence before 

it. Such was not done here.
10 A-3114-14T3

 

The court entered a memorializing order on February 26, 2015, and 

this appeal followed. 

II.

On appeal, the Board raises the following points1 for our 

consideration:

POINT I

DUE DEFERENCE WAS NOT PAID TO THE BOARD.

POINT II

ON THE SINGULAR VOTE IN ISSUE, PLAINTIFF DID 

NOT MEET THE STATUTORY CRITERIA UNDER N.J.S.A.

40:55D-70(d)(1).

POINT III

THE TESTIMONY OF PLAINTIFF'S EXPERT WITNESSES 

CONCERNING THE PROHIBITIVE COST OF CONVERTING 

FROM RESIDENTIAL TO COMMERCIAL USE WERE[] "NET 

OPINIONS" AND THUS COULD BE IGNORED.

 

We begin with the standard of review. We apply the same 

limited standard of review as the trial court when reviewing a 

zoning board's decision to grant or deny a variance. Bressman v. 

Gash, 131 N.J. 517, 529 (1993); D. Lobi Enters., Inc. v. 

Planning/Zoning Bd. of Borough of Sea Bright, 408 N.J. Super. 345, 

360 (App. Div. 2009). As such, "when a party challenges a zoning 

board's decision through an action in lieu of prerogative writs, 

 

1 We have condensed the points raised by defendant for clarity.
11 A-3114-14T3

the zoning board's decision is entitled to deference." Kane 

Props., LLC v. City of Hoboken, 214 N.J. 199, 229 (2013). "Its 

factual determinations are presumed to be valid[,] and its decision 

to grant or deny relief is only overturned if it is arbitrary, 

capricious or unreasonable." Ibid. (citing Burbridge v. Twp. of 

Mine Hill, 117 N.J. 376, 385 (1990)).

A "board's decisions enjoy 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." Price v. Himeji, 

LLC, 214 N.J. 263, 284 (2013) (citing Cell S. of N.J., Inc. v. 

Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002)). "[Z]oning 

boards, 'because of their peculiar knowledge of local 

conditions[,] must be allowed wide latitude in the exercise of 

delegated discretion.'" Ibid. (quoting Kramer v. Bd. of 

Adjustment, 45 N.J. 268, 296 (1965)). To that end, we extend even 

greater deference to a zoning board's decision to deny a variance 

in preservation of a zoning plan than to a decision to grant a 

variance. Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. 

of Adjustment, 361 N.J. Super. 22, 38 (App. Div. 2003). However, 

where the issue on appeal involves a purely legal question, this 

court affords no special deference to the trial court's or zoning

board's decision, and instead must determine if the board 
12 A-3114-14T3

understood and applied the law correctly. See D. Lobi Enters., 

supra, 408 N.J. Super. at 351-52.

Under N.J.S.A. 40:55D-70(d)(1):

The board of adjustment shall have the power 

to:

. . . .

In particular cases for special reasons, grant 

a variance to allow departure from . . . this 

act to permit: (1) a use or principal 

structure in a district restricted against 

such use or principal structure . . . . A 

variance under this subsection shall be 

granted only by affirmative vote of at least 

five members, in the case of a municipal 

board[.]

Where a zoning board has denied a variance, the applicant must 

prove that the evidence before the board was "overwhelmingly in 

favor of the applicant." Nextel, supra, 361 N.J. Super. at 38

(quoting Ne. Towers, Inc. v. Zoning Bd. of Adjustment, 327 N.J. 

Super. 476, 494 (App. Div. 2000)). "As is evident, the burden on 

a variance applicant is not insignificant[,]" Nuckel v. Borough 

of Little Ferry Planning Bd., 208 N.J. 95, 102 (2011), "because 

the grant of a use variance always represents an exception to the 

generally applicable zoning scheme[.]" Price, supra, 214 N.J. at 

286. 

An applicant seeking a use variance must demonstrate "special 

reasons" — commonly referred to as the positive criteria — why the 
13 A-3114-14T3

variance should be granted. N.J.S.A. 40:55D-70(d)(1). "Special 

reasons" are those that promote the general purposes of zoning, 

enumerated in N.J.S.A. 40:55D-2. Burbridge, supra, 117 N.J. at 

386 (citing Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 276 (1967)). 

"Special reasons" generally fall into one of three categories:

(1) [W]here the proposed use inherently serves 

the public good, such as a school, hospital 

or public housing facility, see [Sica v. Bd. 

of Adjustment of Wall, 127 N.J. 152, 159-60

(1992)]; (2) where the property owner would 

suffer "undue hardship" if compelled to use 

the property in conformity with the permitted 

uses in the zone, see Medici v. BPR Co., 107 

N.J. 1, 17 n.9 (1987); and (3) where the use 

would serve the general welfare because "the 

proposed site is particularly suitable for the 

proposed use." [Smart SMR of N.Y., Inc. v. 

Borough of Fair Lawn Bd. of Adjustment, 152 

N.J. 309, 323 (1998).]

[Saddle Brook Realty, LLC v. Twp. of Saddle 

Brook Zoning Bd. of Adjustment, 388 N.J. 

Super. 67, 76 (App. Div. 2006).]

An applicant for a use variance must also satisfy what are 

known as the "negative criteria." Specifically, an applicant must 

show that the variance "can be granted without substantial 

detriment to the public good," and that "the variance 'will not 

substantially impair the intent and the purpose of the zone plan 

and zoning ordinance.'" Price, supra, 214 N.J. at 286 (quoting 

N.J.S.A. 40:55D-70). "The showing required to satisfy the first 

of the negative criteria focuses on the effect that granting the 
14 A-3114-14T3

variance would have on the surrounding properties." Ibid. (citing 

Medici, supra, 107 N.J. at 22 n.12). "The proof required for the 

second of the negative criteria must reconcile the grant of the 

variance for the specific project at the designated site with the 

municipality's contrary determination about the permitted uses as 

expressed through its zoning ordinance." Ibid. (citing Medici, 

supra, 107 N.J. at 21). This requires, "in addition to proof of 

special reasons, an enhanced quality of proof and clear and 

specific findings by the board of adjustment that the variance 

sought is not inconsistent with the intent and purpose of the 

master plan and zoning ordinance." Medici, supra, 107 N.J. at 21.

A zoning board "acts as a quasi-judicial body. As such, it 

is called upon to become involved in a weighing process, much like 

a court, before determining whether the positive and/or negative 

criteria have been met." Price Co. v. Zoning Bd. of Adjustment

of Twp. of Union, 279 N.J. Super. 207, 209 (App. Div. 1994). 

Here, defendant argues the court erred in concluding that the 

Board's "denial was arbitrary, capricious or unreasonable" and 

"unsupported in the record." We agree. The minority Board members 

opposed the variance because plaintiff failed to satisfy the 

affirmative criteria, specifically, undue hardship and site 

suitability. The Board members rejected plaintiff's assertion 

that overcoming the physical limitations inherent in the building 
15 A-3114-14T3

by relocating the stairwell or remodeling the foyer would cause 

undue hardship. That determination was supported by Hubschman's 

acknowledgement that it was possible to have "two side-by-side 

stores[.]" Proof of undue hardship requires proof "that the 

property is not reasonably adapted to a conforming use[.]" Medici, 

supra, 107 N.J. at 17 n.9. Plaintiff failed to make the requisite 

showing here. 

Likewise, the Board members concluded that Building A was 

particularly well-fitted for an additional commercial, rather than 

residential, unit because it had none of the "deficiencies" present 

in Buildings B and C. According to Lydon, the fact that Buildings

B and C were not visible from the street and had limited parking 

and vehicular access made those buildings particularly unsuitable 

for non-residential uses. In contrast, Building A had none of 

those deficiencies, making it suitable for non-residential use. 

While "almost all lawful uses of property can be said to promote 

the general welfare to some degree, . . . any application for a 

use variance based on the particularly suitable standard has always 

called for an analysis that is inherently site-specific." Price, 

supra, 214 N.J. at 288. 

Although the availability of alternative 

locations is relevant to the analysis, 

demonstrating that a property is particularly 

suitable for a use does not require proof that 

there is no other potential location for the 
16 A-3114-14T3

use[,] nor does it demand evidence that the 

project "must" be built in a particular 

location. Rather, it is an inquiry into 

whether the property is particularly suited 

for the proposed purpose, in the sense that 

it is especially well-suited for the use, in 

spite of the fact that the use is not permitted 

in the zone.

[Id. at 292-93.]

Here, plaintiff's proofs fell short of meeting that test, and the 

record supports the Board's rationale.

In short, plaintiff failed to show the necessary positive 

criteria and failed to overcome the presumption of validity 

afforded the Board's decision. We find adequate support in the 

record for the Board's conclusions and no support for the court's 

determination that the Board's decision was arbitrary, capricious,

or unreasonable. Accordingly, we reverse the Law Division order 

and reinstate the Board's resolution denying the use variance. In 

light of our conclusion, we need not reach the Board's remaining 

contentions that the court erroneously shifted the burden of proof 

to defendant and that the Board was not required to accept the net 

opinions offered by plaintiff's experts. 

Reversed.