SUPERIOR COURT OF NEW JERSE Y

APPELLATE DIVISION

DOCKET NO . A

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NEW JERSEY CHINESE

COMMUNITY CENTER

, INC.,

Plaintiff

- Appellant

,

v.

FRANKLIN TOWNSHIP Z ONING

BOARD OF ADJUSTMENT, 101

METTLERS ROAD, LLC, and

CENTRAL JERSEY COLLEGE

PREP CHARTER SCHOOL,

Defendants

- Respondents

.

____________________ _ _ _ _ __ _ _ _ _

Argued March 6 , 2019

– Decided A pril 29, 2020

Before Judges Fuentes, Vernoia , and Moynihan.

On appeal from the Superior Court of New Jersey, Law

Division, Somerset County, Docket No. L

- 0 549

- 17.

Cynthia M. Hwang ar gued the cause for appellant.

James J. Kinneally, III, argued the cause fo r respondent

Franklin Township Z oning Board of Adjustment

( Marriot t Callahan & Blair , P C , attorneys; James J.

Kinneally, III, on the brief).

NOT FOR PUBLICATION WITHOUT THE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

- 3.2 A

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The opinion of the court was delivered by

FUENTES, P.J.A.D.

Pl aintiff New Jersey Chinese Community Center

, Inc. appeals from the

order of the Law Division that upheld the decision of the Franklin Township

Zoning Board of Adjustment (Board) to grant a use variance under N.J.S.A.

40:55D

- 70d to 101 Mettlers Road, LLC (t he Applicant). The use variance was

necessary to permit Central Jersey College Prep Charter School (Central Jersey

College Prep) to relocate to 101 Mettlers Road

, a zoning area that did not permit

schools. At the time of the application and prior to its relocation , Central Jersey

College Prep operated the school on a property it leased from plaintiff located

at 17 Schoolhouse Road

.

The Board conducted two public hearings to consider the Applicant's

request for the use variance

. The first hearing occurred on December 15, 2016

.

In addition to the site plan, architectural drawings, and engineering reports, the

Applicant presented the testimony of licensed engineer Craig Stires, licensed

architect David H. Feldman, Central Jersey C ollege Prep Principal Namik

Serkan, and licensed engineer Jay Troutman

.

The Board conducted the second and final hearing on January 5, 2017. At

the Board's request, architect Feldman explained the in feasibility of relocating3 A

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the school's gymnasium to a different area of the property located at 17

Schoolhouse Road

. The Board also heard testimony from its own planner Kevin

O'Brien, who noted :

[t] his school is considered an inherently beneficial use

and has received similar approvals from this Board for

both of its past locations. The school is chartered by

the New Jersey State Department of Education, it must

adhere to their rules and regulations, it must also adhere

to all Building Code regulations concerning

educational institutions. All the teachers and staff are

state certified and over 70 percent of the students come

from here in Franklin Township.

At this point t he Board opened the hearing to the public. An attorney who

represented the Chinese Community Center as an objector addressed the Board

and advocated against the approval of the application. The attorney warned that

if the Board approved the application, it would " be committing a tortious

interference of the parties' contract." The attorney alleged that the Franklin

Township Zoning Officer was aware of the lease agreement between plaintiff

and Central Jersey College Prep and "involved himself in [their] business

dealings despite his offici al capacity demanding neutrality ." After consulting

with its attorney, the Board determined the matters raised by plaintiff 's attorney

were not relevant to the Applicant's request for a use variance

. The Board

ultimately approved the application unanimous ly

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The Board thereafter adopted a n approval resolution that described the

specific facts that supported the use variance sought by the Applicant and found

the A pplicant had satisfied the positive and negative criteria codified in N.J.S.A.

40:55D

- 70d. Pursuant to Rule 4:69

- 6(b)(3), p laintiff appealed the Board's

decision in an action in lieu of prerogative writs

. The Law Division held a trial

de novo and affirmed the Board's grant of the use variance.

In this appeal, p laintiff argu es the Law Division judge erred when he

upheld the Board's decision. Plaintiff claims the Applicant did not present

sufficient evidence to support the Board's factual f inding s and legal application

of the positive and negative criteria to grant the use variance under N.J.S.A.

40:55

- 70d. After reviewing the record developed before the Board and mindful

of our standard of review, we affirm substantially for the reasons expressed by

Judge Thomas C. Miller in his comprehensive statement of reasons attached to

and i n support of his May 4, 2018 order.

It is long

- settled that a court will only set aside a local zoning

determination when the record shows its decision was arbitrary, capricious or

unreasonable. Kramer v. Bd. of Adjustment

, 45 N.J. 268, 296

- 97 (1965).

Pursuant to N.J.S.A. 40:55D

- 70d(1), a zoning board has the power, "[i]n

particular cases for special reasons, [to] grant a variance to allow departure from5 A

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regulations . . . of this act to permit: (1) a use or principle structure in a district

restricted a gainst such use or principal structure . . . ." The Municipal Land Use

Law (MLUL) "requires an applicant to prove both positive and negative criteria

to obtain a use variance." Price v. Himeji, LLC , 214 N.J. 263, 286 (2013)

(quoting Smart SMR of New York , Inc. v. Fair Lawn Bd. of Adj. , 152 N.J. 309,

323 (1998)).

An applicant must first demonstrate special reasons for granting the

variance, N.J.S.A. 40:55D

- 70d(1) . These s pecial reasons are referred to as the

positive criteria. The Supreme Court has ident ified three categories of

circumstances where special reasons may be found:

(1) where the proposed use inherently serves the public

good, such as a school, hospital or public housing

facility; (2) where the property owner would suffer

"undue hardship" if compelled to use the property in

conformity with the permitted uses in the zone; and (3)

where the use would serve the general welfare because

"the proposed site is particularly suitable for the

proposed use."

[ Nuckel v. Little Ferry Planning Bd. , 208 N .J. 95, 102

(2011) (internal citations omitted) (quoting Saddle

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

Bd. of Adj. , 388 N.J. Super. 67, 76 (App. Div. 2006)).]

The applicant must also satisfy the negative criteria, which are defined in

N.J.S.A. 40:55D

- 70 as follows:6 A

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terms of this section, including a variance or other relief

involving an inherently beneficial use, without a

showing that such variance or other relief can be

granted without subst antial detriment to the public good

and will not substantially impair the intent and the

purpose of the zone plan and zoning ordinance.

The first prong of the negative criteria "focuses on the effect that granting

the variance would have on the surroundi ng properties" while proof of the

second prong "must reconcile the grant of the variance . . . with the

municipality's contrary determination about the permitted uses as expressed

through its zoning ordinance." Price , 214 N.J. at 286 (citing Medici v. BPR Co.

,

107 N.J. 1, 21

- 22 (1987) ).

Satisfaction of both negative criteria prongs generally requires "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

pur pose of the master plan and zoning ordinance." Medici , 107 N.J. at 21.

However, when a proposed use is inherently beneficial

, satisfaction of the

negative criteria does not require enhanced proof. Sica v. Bd. of Adjustment

,

127 N.J. 152, 160

- 61 (1992)

. Instead, under these circumstances, the zoning

board must balance the positive and negative criteria by considering the

following procedure its determination : (1) identify the public interest is at stake,7 A

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(2) identify the detrimental effect, (3) determine whether the detrimental effect

can be reduced by imposing reasonable conditions on the use, and (4) determine

whether there would be a substantial detriment to the public good. Id. at 165

- 66.

Here, the Board accept ed the testimony of its planne r

, Kevin O'Brien.

Consistent with well

- established law, O'Brien testified that a charter school was

an inherently beneficial use. Northeast Towers, Inc. v. Zoning Bd. of

Adjustment for W. Paterson

, 327 N.J. Super. 476, 4 87 (App. Div. 2000)

.

O'Brien opined the proposed school would not have a detrimental effec t

, no

accommodations were needed

, and the balancing test weighed in f avor of

granting the variance. O'Brien also noted that one of the goals of Franklin

Township's Master Plan is to continue to provide adequate services to meet the

needs of the Township and evaluate the adequacy of existing facilities. O'Brien

testified that the use variance complie d with the Master Plan because the

Schoolhouse Road location was to o small for Central Jersey College Prep's

expansion plan.

Plaintiff's counsel did not present any evidence to undermine or challeng e

any of the Board 's findings and conclusions. In its resolution

, the Board found

the Applicant satisfied the criteria necessary to grant a use variance pursuant to

N.J.S.A. 40:55D

- 70d

. The record fully supports Judge Miller's legal8 A

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conclusions. We thus affirm substantially for the reasons expressed by Judge

Miller in his comprehensive

, well

- reasoned written opinion.

A ffirmed.