SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4349-15T3

RICHARD BARNASKAS and TERRI

BARNASKAS, his wife,

Plaintiffs-Appellants,

v.

ZONING BOARD OF ADJUSTMENT

OF THE TOWNSHIP OF JACKSON

and MIB PROPERTIES, LLC,

Defendants-Respondents.

_______________________________

Argued February 15, 2018 – Decided

Before Judges Haas, Rothstadt and Gooden 

Brown.

On appeal from Superior Court of New Jersey, 

Law Division, Ocean County, Docket No. 

L-1637-15.

Edward F. Liston, Jr., argued the cause for 

appellants.

Sean D. Gertner argued the cause for 

respondent Zoning Board of Adjustment of the

Township of Jackson (Gertner & Gertner, LLC,

attorneys; Sean D. Gertner, on the brief).

Robert C. Shea argued the cause for respondent 

MIB Properties, LLC (R.C. Shea & Associates, 

NOT FOR PUBLICATION WITHOUT THE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.

August 2, 2018
2 A-4349-15T3

PC, attorneys; Robert C. Shea and Dina M. 

Vicari, on the brief). 

PER CURIAM 

Plaintiffs Richard and Terri Barnaskas appeal from the May 

6, 2016 Law Division order, dismissing their complaint with 

prejudice. In so doing, the trial court affirmed the decision of 

defendant Zoning Board of Adjustment of the Township of Jackson 

(Board), approving the application of defendant MIB Properties, 

LLC (MIB) for a use variance along with preliminary and final 

major site plan approval. We affirm.

To place the current appeal in context, a brief history of 

the property is necessary. The subject property is located along 

and to the east of Cooks Bridge Road in Jackson, New Jersey. The 

property was originally a single parcel identified as Block 14801, 

Lot 5, consisting of approximately seven acres located in a planned 

retirement community (PRC) zone and owned by U.S. Home Corporation. 

Lot 5 was eventually conveyed to Manhattan Real Estate (MRE), 

which, in 2008, applied for a "use variance with preliminary/final 

site plan approval to construct an office park, including office 

buildings, a nursery school[,] and [a] bank . . . ." In an amended

application, MRE sought to

proceed[] with its presentation on a 

bifurcated basis, seeking only a determination 

. . . as to its use variance to permit a bank 

. . . on approximately 1.2 acres . . . and 
3 A-4349-15T3

reserving issues relating to a full site plan 

for the entire tract for a later application, 

such issues to include the use of the 

remaining parcel for age-restricted 

development.

In Resolution 2008-36, adopted on August 6, 2008, the Board

approved the application, subject to various conditions, 

including: 1) MRE agreeing to erect a bank on 1.2 acres of the 

site, "leaving the approximate six . . . remaining acres for 

subsequent development for an age-restricted residential 

development"; and 2) MRE agreeing that "it must receive preliminary 

and final site plan approval for the complete project . . . within 

one . . . year, at which time the use variance granted herein 

shall expire."

Subsequently, MRE sought "an amended preliminary and final 

site plan approval for the construction of a bank on the site, and 

preliminary approval for the construction of age-restricted 

condominiums." On January 21, 2009, in Resolution 2009-02, the 

Board approved MRE's application for the subdivision of Lot 5 

subject to several conditions, including MRE "commenc[ing]

construction of the condominiums within five years of the date of 

this resolution." The Resolution specified that "[f]ailure to do 

so [would] result in a nullification of any variances granted by 

this Resolution to enable [MRE], or its successors, to construct 

condominiums on the subject property." Thereafter, Lot 5 was 
4 A-4349-15T3

subdivided into Lots 5.01, where the proposed bank would sit, and 

Lot 5.02 where the age-restricted condominiums would be 

constructed.

After Resolution 2009-02 was issued, Lot 5.02 was sold to 

MIB. On December 23, 2014, MIB filed an application for a 

preliminary and final major site plan with "d" and "c" variance 

relief pursuant to N.J.S.A. 40:55D-70 to construct a funeral home 

with accessory uses, to include a residential apartment, banquet 

space and office space. Funeral homes were not a permitted use 

in the PRC zone. However, under N.J.S.A. 40:55D-70(c)(1), the

Board had the power to grant a variance 

[w]here: (a) by reason of exceptional 

narrowness, shallowness or shape of a specific 

piece of property, or (b) by reason of 

exceptional topographic conditions or 

physical features uniquely affecting a 

specific piece of property, or (c) by reason 

of an extraordinary and exceptional situation 

uniquely affecting a specific piece of 

property or the structures lawfully existing 

thereon, the strict application of any 

regulation pursuant to [the Municipal Land Use 

Law (MLUL)] would result in peculiar and 

exceptional practical difficulties to, or 

exceptional and undue hardship upon, the 

developer of such property . . . .

Under N.J.S.A. 40:55D-70(d)(1), "[i]n particular cases for 

special reasons," the Board had the power to grant a variance "to 

allow departure from regulations pursuant to [the MLUL] to permit
5 A-4349-15T3

. . . a use or principal structure in a district restricted against 

such use or principal structure[.]" However, 

No variance or other relief may be granted 

under the terms of this section, . . . without 

a showing that such variance or other relief 

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.

[Ibid.]

On February 21, 2015, MIB provided notice of its application

in the Asbury Park Press, including a description of the project 

and the requested variances as well as a list of documents and 

plans on file with the Board and available for public inspection. 

MIB also sent notices to all property owners within 200 feet of 

the subject property. On March 4, 2015, the Board conducted its 

first public hearing on MIB's application, which was attended by 

the Board's professionals and during which members of the public 

opposed the application. To support its application, MIB presented 

expert testimony from its project architect, engineer and planner, 

and traffic engineer, along with testimony from its owner, 

providing an overview of the project as well as the operation of 

the proposed development. 

In essence, MIB sought to construct a funeral home that 

"incorporate[d] a whole variety of different uses under the roof 

of a funeral home." MIB's owner, Geraldine Oliverie Hennicke, a 
6 A-4349-15T3

Funeral Director since 1987, testified that her vision of the 

funeral home was "cutting edge of what [was] happening in the 

states around us where they [are] encompassing everything under 

one roof to satisfy the needs of the families and clients from 

pre-arrangements to . . . repass." 

The Board's professional planner added that MIB's funeral 

home was the principal use with "a number of customarily incidental 

accessory uses inside the building." John Amelchenko, MIB's 

architect, agreed that the funeral home was "designed to really 

function as a self-contained facility" with accessory uses for the 

"convenience [of] the friends and family of the deceased." He 

testified about the novelty of the concept, stating "[i]t [was] 

not your father's funeral home" but "a trend in funeral home design 

that is . . . happening all over . . . the country." Amelchenko 

explained that the approximately 19,000 square foot building was 

designed with complex roof lines, to "soften[] . . . the overall 

size of the building[,]" along with "white trim, white columns, 

cupolas, copper roofs[,]" and "stone veneers," in an attempt to 

provide a "residential quality[.]"

According to Amelchenko, the 14,000 square foot first floor 

of the building would have three viewing rooms, capable of holding 

eighty people each with a sitting area to provide a "residential 

feel[]" complete with a fireplace, bookcases, and a television. 
7 A-4349-15T3

There would also be two conference rooms used to meet with family 

members of the deceased to make selections on caskets or urns. 

According to Amelchenko, the other functional aspects of the 

funeral home where the deceased would be received and prepared for 

viewing were completely separated from the public portions of the 

building to avoid contact with visitors.

Amelchenko explained that one of the accessory uses that the 

funeral home would contain was a one-hundred-and-sixty-seat 

banquet hall with a "warming kitchen" to hold post-funeral 

repasses. According to Amelchenko, the banquet hall would not be 

open to the general public, as if it were a restaurant, and, 

instead, would be used "strictly for [the] repass[es.]" He 

described the kitchen as designed to serve pre-prepared food, 

rather than food prepared on site, "that passes through the 

kitchen, gets prepped, and then is brought out into the banquet 

facility." After the service, the family would access the banquet 

hall for the catered meal through an atrium space. 

In addressing health and safety concerns with having food 

served in a funeral home, Hennicke explained that the building was 

designed with an atrium in the middle and sets of doors separating

the banquet area to ensure that "food [would] never come in through 

the funeral home." Amelchenko confirmed that the atrium space 

separated the funeral home from the banquet facility and served
8 A-4349-15T3

as a sitting area with "a water feature" and "a large skylight 

that will provide some natural light . . . ." Additionally, 

according to Amelchenko, there would be a small retail area where 

guests might be able to purchase some flowers, prayer cards, or 

other "things of that nature." 

Another accessory use identified for the funeral home by 

Hennicke was a two-bedroom apartment for staff members "to be on 

the premises [twenty-four] hours a day to answer the families' 

needs[,]" as people can pass away at any hour of the day or night. 

Noting that the funeral home's hours of operation would be from 

8:00 a.m. to 10:00 p.m., Hennicke proposed that the apartment 

would be occupied by her daughter and her daughter's fiancé, who 

were both part of the business, as it was a "family owned and 

operated" business.

MIB's application also included a nine-hundred square foot 

office space on the second floor for "the purpose of having a 

combination where an attorney and a financial advisor [would] work 

with . . . [Hennicke] for Medicare spend downs" and purchasing 

funeral services and crypts upfront. Acknowledging that she was 

unable to provide the expert advice that a financial planner and 

estate planning attorney could, Hennicke explained that MIB was

trying "to help families understand the laws and how to protect 

their assets and what they can do and cannot do within the law." 
9 A-4349-15T3

In addition, it was confirmed that "[t]his [was] not a situation 

where the attorney [would] do personal injury or workers' 

compensation, this [would] be affiliated with the funeral and the 

funeral operation" to continue "the concept of one service under 

one roof."

Supporting variance relief from the PRC zoning requirements, 

MIB's project engineer and planner, Brian Murphy, delineated the 

site plan and surrounding properties, including the Winding Ways 

Retirement Community, and detailed the requested waivers and C1 

and C2 variances connected with the PRC zone, including the needed 

increased building height for the garage to accommodate the storage 

of hearses. He agreed that the funeral home was the principal use 

and that "[n]one of these other uses exist without it." 

Murphy testified that the previously approved condominium 

units envisioned a very "long building[,]" whereas the MIB proposal 

had a "very residential look" and was an "attractive building." 

He also found the funeral home to be particularly well suited for 

the site and an appropriate use given the location of the property

and the other commercial uses in the area, particularly, the bank. 

According to Murphy, it was "a good transition between [the] 

residential use to the south and the bank [and municipal building]

which [were] to the . . . north and west." 
10 A-4349-15T3

Murphy explained further that the use was appropriate for the 

relatively small "size of the property only being [six] acres 

where[as] 100 acres [were] required in a [PRC] zone." Furthermore, 

he testified that the MIB proposal was a "less intense use on the 

site" than the condominium units, because the condominium units 

would involve vehicular access during peak hours, "unlike the 

funeral home, which is off peak hours pretty much for the entire 

use of the building." 

Murphy testified that the project satisfied the statutory 

requirements of N.J.S.A. 40:55D-2 in that the project provided 

adequate light, air, and open space, while exceeding the 25% of 

open space requirement. He explained that the way the building 

was situated, "it [was] not a wall of building, rather . . . it 

[was] nicely laid out with the atrium and all the windows, . . .

providing plenty of light into the facility." Additionally, Murphy

indicated the project provided sufficient space in the appropriate 

locations for a variety of commercial and residential uses. 

Further, he testified that the project "provide[d] a desirable and 

visual development" with "a very attractive building for the 

Township."

Murphy also addressed the negative criteria under N.J.S.A. 

40:55D-70d(1), and determined that the funeral home would be an 

improvement to the community. He invoked the Township's master 
11 A-4349-15T3

plan, specifying that "[a] key goal [was] to work towards a 

balanced community." Murphy indicated that "while the housing 

stock [was] now more than balanced[,] . . . commercial and 

industrial development need[ed] to be expanded to meet local 

needs." To that end, he found that "this project in particular 

exactly exemplifie[d] that goal." He testified that although 

there had been approval for housing stock on the property, he did 

not "believe it [was] all that viable[,]" as demonstrated by the 

lack of development "in the last five, six years." 

Murphy also stated that "[a] retirement community really [was 

not] appropriate on such a small lot," and given that there was 

"a lighted intersection and it would be sharing driveways with 

another commercial use," he believed "the commercial use [was]

more conducive to this property." Murphy opined that the "benefits 

of this project certainly outweigh[ed] any negatives" because it 

supported the goals of the master plan, and he saw no negative 

impact with the use, especially given the decrease in "traffic

impact than a permitted use would [be] on the property."

John Rea, MIB's traffic engineer, testified that the impact 

of the funeral home "on peak hour traffic at the intersection of 

Cooks Bridge Road and Manhattan Street" would "be less than what 

was previously studied [for the 2008 application], and . . . the 

intersection would operate acceptably." Rea opined that "the use 
12 A-4349-15T3

variance [could] be granted . . . without having an adverse or 

detrimental impact on traffic conditions." The Board's traffic 

engineer reviewed Rea's reports and testimony and agreed with his 

conclusions, indicating that he was "satisfied . . . [MIB could] 

address the safety concerns as they have been laid out."

The Board scheduled an additional hearing date for April 1, 

2015, in order to give more members of the public a chance to 

speak, and the Board more time to consider the application. 

Several members of the public, including plaintiff Terri 

Barnaskas, testified at the hearing, opposing the application and 

raising concerns about the adverse impact on traffic and home 

values, garnering the necessary licensing from the applicable

licensing agencies, and housing as a preferred use of the site.

Following the hearings, by a majority vote, the Board approved

MIB's application for variances and design waivers along with

preliminary and final major site plan approval. On May 6, 2015, 

the Board adopted Resolution 2015-21, memorializing its approval 

for MIB to construct a "two-story structure for use as a funeral 

home that will contain a total of 19,771 square feet which would 

include related offices, rental offices, a banquet facility, an 

apartment, paved parking lot with . . . 172 parking spaces, a 

trash enclosure area and a detached garage." 
13 A-4349-15T3

In the Resolution, the Board reviewed the history of the site 

as well as the testimony and exhibits entered into the record. 

The Board also addressed the positive and negative criteria for 

the project, noting that "the parcel was substantially undersized 

for the use for which it [was] zoned." Through its review, the 

Board determined that MIB "established special reasons for the 

grant of a variance pursuant to N.J.S.A. 40:55D-70(d)(1) in that 

the site . . . [was] appropriate" for the proposed use 

"notwithstanding the deviations from one or more of the conditions 

imposed by the Land Use and Development Regulations of the 

Township." Further, the Board determined that MIB "established 

that development of the proposed use [would] not cause such damage 

to the character of the surrounding neighborhood so as to 

constitute substantial detriment to the public good nor . . .

substantially impair the intent and purpose of the zone plan and 

zoning ordinance." 

As to the negative criteria, the Board indicated that the 

proposed construction had "an aesthetically pleasing design," and 

MIB agreed "to obtain required approvals to address both better 

signage and timing of the existing traffic signal," "to maintain 

the existing open space requirement of a related parcel from a 

previous approval," and to "improve[e] interior circulation . . . 

as suggested by Board professionals." The Board imposed various 
14 A-4349-15T3

conditions, however, including requiring MIB to obtain "approval 

of all other outside agencies exercising jurisdiction in this 

matter," and to "contact the Board of Mortuary Science and any 

other State or County Agency having jurisdiction over the approved 

use with ancillary uses . . . in order to assure that the regulatory 

oversight agencies approve the design and use concept approved" 

by the Board.

On June 10, 2015, plaintiffs filed a complaint in lieu of 

prerogative writs, contending that the Board's decision was 

arbitrary, capricious and unreasonable, and seeking to overturn 

the Board's decision as against the weight of the evidence and the 

law. On April 8, 2016, Judge Robert E. Brenner conducted a bench 

trial on the record, and issued an oral opinion on April 27, 2016, 

affirming the Board and dismissing plaintiffs' complaint with 

prejudice. In rendering his decision, Judge Brenner addressed all 

of the contentions in plaintiffs' complaint.

First, the judge rejected plaintiffs' contention that MIB was

bound by the condition to build age-restricted condominiums 

imposed on former Lot 5 in the 2008 and 2009 Resolutions. Judge 

Brenner reviewed Resolutions 2008-36 and 2009-02, in conjunction 

with the history of former Lot 5 and the subsequent subdivision, 

and concluded that the prior resolutions did not preclude the 

Board from approving MIB's application. According to the judge, 
15 A-4349-15T3

Lots 5.01 and . . . 5.02 are independent of 

each other as a result of the previous 

subdivision. The lots were developed at 

different time periods and did not have common 

zoning or construction permits. They're 

currently owned by different entities. The 

bank is constructed and has been operating for 

many years. . . . Resolutions 2008-36 and 

2009-02 do not permanently bind Lots 5.01 and 

5.02 together and do not preclude the Board 

from approving what I see as a new application 

by MIB.

To support his conclusion, the judge explained that 

Resolution 2009-02 indicated that MRE "requested two separate 

reliefs in its applications because Lots 5.01 and 5.02 would 

ultimately be subdivided and potentially owned by two different 

owners." Accordingly, "the approvals on Lots 5.01 and 5.02 were 

not contingent on each other because if they were[,] MRE would 

have sought preliminary and final site plan approval for both lots 

simultaneously." Moreover, Resolution 2009-02 provided an 

explicit five-year limitation on the construction of the 

condominium units and, according to Judge Brenner, "the failure 

to do so resulted in a nullification of any variances granted by 

the Resolution." 

Next, Judge Brenner rejected plaintiffs' contention "that the 

Board's approval of the accessory uses to the funeral home [were]

a nullity because MIB neither sought nor received variance relief 

for what plaintiff[s] argue[] [were] separate principal uses." 
16 A-4349-15T3

Judge Brenner explained that the banquet facility was "totally 

associated with the funeral home and not to be used for outside 

purposes but to be used only for [repasses]"; the two-bedroom 

apartment was "to be occupied by the funeral home manager who 

assist[ed] with the operation of the business or other employees 

of the funeral home"; and the rental office space was to be used 

"for the purposes of having an attorney and financial planner to 

work with [Hennicke] for Medicare spend-downs and service as such." 

Relying on State v. P. T. & L. Construction Company, 77 N.J. 20 

(1978), the judge determined that "while the concept of providing 

one location for all . . . funeral needs is something new and 

trending, the law makes clear that that does not prevent this 

[c]ourt from rendering its decision that these are accessory uses 

to the principal . . . or primary use."1

Turning to plaintiffs' assertion "that the public did not 

receive sufficient notice . . . that the rental offices were 

separate principal uses[,] and . . . that MIB was seeking relief 

from the conditions . . . allege[dly] contained in the 2008 

Resolution[,]" Judge Brenner explained that plaintiffs did not 

raise any notice deficiencies in their complaint and thus "the 

 

1 Judge Brenner also rejected plaintiffs' contention that MIB 

proposed a coffee-snack bar, finding that "[i]t was not part of 

the record [and] . . . that the only food that will be on the 

premises is in regard to the banquet facility."
17 A-4349-15T3

argument [was] not properly before the [c]ourt." Nonetheless, the 

judge determined "that MIB's public notice complie[d] with 

N.J.S.A. 40:55D-11." The judge elaborated that MIB's notice timely 

and adequately conveyed the "date, time, and place of the hearing, 

the nature of the matters to be considered, and an identification 

of the property proposed for the development." The judge continued 

that the notice "depict[ed] in detail the specific types of 

variances sought," and "provided a specific list of items that 

were on file with the Board and available for inspection." The 

judge concluded that "[t]he public was not deprived of any 

pertinent information."

Judge Brenner also rejected plaintiffs' contention "that the 

Board lacked jurisdiction to reopen the hearing" on April 1, 2015. 

The judge noted that when the March 4, 2015 hearing was opened for 

public comment, the weather created a driving hazard "and many 

members of the public who attended the meeting left early." As a 

result, one of the Board members requested a continuance, stating 

that there was "an awful lot of testimony" and "information to be 

absorb[ed] in three hours." The Board member explained that he 

did not "feel like [he was] ready to vote on this one way or the 

other without thinking about what [he] heard[,]" and sought the

continuance to consider the proposal and also to permit members 

of the public who had already left a chance to comment. Judge 
18 A-4349-15T3

Brenner deferred to the Board's "broad discretion" and determined 

that the circumstances constituted a proper justification to 

reopen the hearing for an additional day, and that the Board acted 

reasonably.

Finally, Judge Brenner rejected plaintiffs' contention that 

"the variances should not have been granted on the record before 

the Board." Instead, citing Kohl v. Fair Lawn, 50 N.J. 268 (1967) 

and Burbridge v. Mine Hill, 117 N.J. 376 (1990), the judge found 

that "MIB satisfied the positive criteria to support the Board's 

granting of the use variance . . . ; that MIB satisfied the 

negative criteria . . . ; and that the Board's determination to 

grant the use variances [was] neither arbitrary nor capricious." 

To support his decision, the judge detailed the expert testimony 

presented by MIB, some of which was supported by the Board's 

professionals, and concluded that MIB produced uncontroverted 

expert testimony to support its application. The judge also 

recounted the history of Lot 5, which included a 2002 settlement 

agreement requiring the approval of the Winding Ways Retirement 

Community Homeowners Association, which MIB had obtained. Thus, 

the judge affirmed the decision of the Board and dismissed 

plaintiffs' complaint with prejudice. This appeal followed. 

On appeal, plaintiffs renew the arguments rejected by Judge 

Brenner as follows:
19 A-4349-15T3

I. MIB NEVER SOUGHT, AND THE BOARD NEVER 

GRANTED, RELIEF FROM THE CONDITIONS AGAINST 

FURTHER COMMERCIAL DEVELOPMENT WHICH WERE 

IMPOSED ON FORMER LOT 5 AS PART OF THE BANK 

APPROVAL ON CURRENT LOT 5.01; ANY VARIANCE 

RELIEF FOR COMMERCIAL DEVELOPMENT ON CURRENT 

LOT 5.02 IS A NULLITY.

II. NEITHER THE PRACTICE OF LAW, NOR FINANCIAL 

PLANNING, NOR POST-FUNERAL BANQUET HALL 

RENTALS, NOR A COFFEE/SNACK BAR STORE, NOR THE 

TWO-BEDROOM APARTMENT, CAN BE ACCESSORY TO A 

FUNERAL HOME; SINCE MIB NEITHER SOUGHT NOR 

RECEIVED VARIANCE RELIEF FOR THESE SEPARATE 

PRINCIPAL USES, THE APPROVAL IS A NULLITY.

III. THE PUBLIC DID NOT RECEIVE SUFFICIENT 

NOTICE THAT THE 'RENTAL OFFICES' WERE SEPARATE 

PRINCIPAL USES, AND THE PUBLIC DID NOT RECEIVE 

ANY NOTICE WHATSOEVER THAT RELIEF FROM THE 

2008 CONDITIONS OF APPROVAL WERE SOUGHT; THE 

BOARD'S DECISION IS NULL AND VOID FOR LACK OF 

JURISDICTION.

IV. THE BOARD OF ADJUSTMENT'S INABILITY TO 

DECIDE ON THE APPLICATION AFTER THE PROOFS 

WERE CLOSED SHOULD HAVE RESULTED IN A DENIAL 

OF THE APPLICATION; THE BOARD LACKED 

JURISDCTION TO REOPEN THE PROOFS.

V. THE BOARD DID NOT HAVE SUFFICIENT RECORD 

SUPPORT TO GRANT MIB'S APPLICATION; THE TRIAL 

COURT ACCEPTED THE BOARD'S ERRONEOUS LEGAL 

REASONING AND UNTENABLE FACTUAL FINDINGS.

We review a zoning board's decision using the same standard 

as the trial court, Cohen v. Bd. of Adjustment of the Borough of 

Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007), and, like 

the trial court, our review is limited. Smart SMR of N.Y., Inc. 

v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 
20 A-4349-15T3

(1998). We give deference to a zoning board's decision and will 

only reverse if the decision was arbitrary, capricious, or 

unreasonable. Kane Properties, LLC v. City of Hoboken, 214 N.J. 

199, 229 (2013). However, where the issue on appeal involves a 

purely legal question, we afford no special deference to the trial 

court's or the zoning board's decision, and must determine if the 

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

Inc. v. Planning/Zoning Bd. of the Borough of Sea Bright, 408 N.J. 

Super. 345, 351-52 (App. Div. 2009). 

In affording deference to the zoning board, a reviewing court 

may not substitute its judgment for that of the municipal body. 

Kramer v. Bd. of Adjustment, 45 N.J. 268, 296-97 (1965). As Justice 

Long emphasized in Jock v. Zoning Bd. of Adjustment:

In the final analysis . . . public bodies, 

because of their peculiar knowledge of local 

conditions, must be allowed wide latitude in 

their delegated discretion. The proper scope 

of judicial review is not to suggest a 

decision that may be better than the one made 

by the board, but to determine whether the 

board could reasonably have reached its 

decision on the record.

[184 N.J. 562, 597 (2004) (citations 

omitted).]

Consistent with this jurisprudential policy of deference to a 

local board's peculiar knowledge of local conditions, "[a] court 

should sustain a local zoning board's determination to grant a 
21 A-4349-15T3

zoning variance if that board's decision comports with the 

statutory criteria and is founded on adequate evidence [in the 

record.]" Burbridge, 117 N.J. at 385. Applying the above 

standards, we discern no reason to disturb the trial court's or 

the Board's decision and affirm substantially for the reasons 

expressed in Judge Brenner's cogent oral opinion. We add the 

following comments.

We recognize that "[z]oning variances are often made subject 

to conditions, contravention of which constitute violations of 

land use ordinances." Washington Commons, LLC v. City of Jersey 

City, 416 N.J. Super. 555, 560 (App. Div. 2010). The conditions, 

like the variances themselves, run with the land and are binding 

on subsequent owners. Aldrich v. Schwartz, 258 N.J. Super 300, 

308 (App. Div. 1992). 

Here, however, Resolution 2009-02 contained explicit

nullifying language, specifically, that any variances granted in 

connection with the age-restricted condominiums would expire if 

they were not constructed within five years. As such, the failure 

to commence construction of the condominiums within the required 

five years of the resolution nullified the variances. In addition, 

we agree with Judge Brenner that Resolution 2009-02 clearly showed

that MRE requested two separate forms of relief. Thus, we reject 

plaintiffs' contention that the Board's "failure to require [MIB]
22 A-4349-15T3

to apply for variance/changed-circumstances relief" from the 

conditions imposed in the resolutions "deprived it of 

jurisdiction."

Likewise, we reject plaintiffs' assertion that each of the 

uses the Board and Judge Brenner deemed accessory to the principal 

use were, in fact, principal uses that each required separate 

requests for variance relief. Jackson Township Code Sec. 244-6 

defines "Principal Use" as "[a] use of land, building or structure, 

or portion thereof, allowed in a zoning district and subject to 

the restrictions applicable to that district." An "Accessory Use" 

is defined as "[a] use of land, or of a building or portion of a 

building or of a structure . . . customarily incidental and 

subordinate to the principal use . . . located on the same lot 

with such principal use." Ibid. 

Although "[z]oning ordinances frequently permit uses that are 

accessory or incidental to an expressly permitted use[,] . . .

they often do not define those permitted accessory uses, and courts 

must determine whether the proposed accessory use is 'customarily 

incidental' to the main activity." Wyzykowski v. Rizas, 132 N.J. 

509, 518 (1993). "[A]n accessory use is implied as a matter of 

law as a right which accompanies the principal use." Shim v. 

Washington Twp. Planning Bd., 298 N.J. Super. 395, 401 (App. Div. 

1997). "Zoning ordinances which permit 'customarily incidental'
23 A-4349-15T3

accessory uses to the main activity permit, by implication, any 

use that logic and reason dictate are necessary or expected in 

conjunction with the principal use of the property." Charlie 

Brown of Chatham, Inc. v. Board of Adjustment, 202 N.J. Super.

312, 323 (App. Div. 1985)).

"In analyzing whether a use is customarily incident to the 

permitted use, two determinations must be made. The first is 

whether the use is incidental to the main use: does the use bear 

a close resemblance and obvious relation to the main use to which 

the premises are put?" P. T. & L., 77 N.J. at 26-27 (alteration 

omitted). "Second, it must be determined whether a use which is 

found to be incident to the permitted use is also a customary 

use." Id. at 27. "Generally, a use which is so necessary or 

commonly to be expected that it cannot be supposed that the 

ordinance was intended to prevent it will be found to be a 

customary use." Ibid. "The fact that a use is not customarily 

indulged in, however, is not conclusive, and even if the use in 

question is found in a small percentage of similar main uses, the 

use may still be found to be 'customary.'" Ibid.

Here, the funeral home is clearly the principal use and the 

other proposed uses are "incidental and subordinate" to the funeral 

home. The attorney's and financial planner's offices are to be 

used only for the benefit of the funeral home's customers. They 
24 A-4349-15T3

are not permitted to work on outside matters or have clients who

are not also clients of the funeral home.2 Likewise, the banquet 

hall is not a restaurant and is not open to the general public for 

dining. Indeed, its only purpose is to provide a banquet facility 

for catered dining following a funeral.

3

Similarly, the two-bedroom apartment to be used by MIB's 

employees is incidental to the funeral home. In that regard, 

Charlie Brown is distinguishable. There, we affirmed the Board's 

denial of a variance for Charlie Brown's construction of second 

floor apartments to provide sleeping accommodations for the 

restaurant's personnel as part of the company's compensation 

program. 202 N.J. Super. at 318-19. The Board denied the 

application, which violated the zoning laws' prohibition against

residential uses mixed with commercial uses, finding that the use 

did not constitute an accessory use. Id. at 318.

We affirmed because there was no proof presented that 

providing employees with sleeping quarters on the premises of a 

restaurant was reasonably related or incidental to its operation. 

Id. at 324. In so doing, we viewed the term "incidental" in the 

 

2 We leave to these two professionals the task of determining 

whether this arrangement raises ethical concerns with their 

respective licensing entities. 

3 Like Judge Brenner, we reject plaintiffs' continued reference 

to a snack bar as it is not part of the record.
25 A-4349-15T3

definition of "accessory use" to incorporate two concepts; the use 

must be "subordinate and minor in significance" and must also bear 

a "reasonable relationship with the primary use." Ibid. "It is 

not enough that the use be subordinate; it must also be attendant 

or concomitant." Ibid.

Here, MIB presented sufficient evidence that their employees 

residing on site was directly related, subordinate and attendant

to the main permitted use of the property's operation as a funeral 

home, as opposed to a part of MIB's compensation program. As 

Hennicke pointed out, people do not die between normal business 

hours and employees living on site would be able and available to 

answer calls and assist families at any hour of the day or night. 

Similarly, we reject plaintiffs' contention that the public 

did not receive sufficient notice that the "rental offices . . . 

were separate businesses," and "that the effect of MIB's 

application was to seek relief from the conditions of Resolutions 

2008-36 and 2009-2." Although this issue was not properly before

the trial court and, in turn, not properly before us, our decision 

that the rental offices were permissible accessory uses and that 

MIB was not required to seek relief from the conditions contained 

in the prior resolutions render these contentions moot.

Equally unavailing is plaintiffs' assertion that "[i]t was 

improper for the Board . . . , upon realizing that . . . MIB had 
26 A-4349-15T3

not met its burden of proof, to reopen the record and permit 

supplementation of the record to correct perceived deficiencies 

in the application." Despite plaintiffs' baseless assertions to 

the contrary, we find no reason to believe the matter was reopened 

for any improper reason. 

Finally, we reject plaintiffs' argument that MIB failed to 

satisfy both the positive and negative criteria required to warrant 

variance relief. Undoubtedly, an applicant seeking a use variance 

has the burden to "prove both positive and negative criteria" to 

a zoning board. Smart, 152 N.J. at 323. The positive criteria 

set forth in N.J.S.A. 40:55D-70(d)(1) authorizes a zoning board, 

"[i]n particular cases for special reasons, [to] grant a variance 

to allow departure from regulations pursuant to . . . [the MLUL] 

to permit . . . a use or principal structure in a district 

restricted against such use or principal structure . . . ."

The term "special reasons" is not defined in N.J.S.A. 40:55D70(d)(1). However, special reasons may be found where: (1) the 

proposed use inherently serves a public good; (2) the owner of the 

property would suffer an "undue hardship" if required to use the 

property in the manner permitted by the zoning ordinance; or (3) 

the use would serve the general welfare because the site is 

particularly suitable for the proposed use. Nuckel v. Little 

Ferry Planning Bd., 208 N.J. 95, 102 (2011).
27 A-4349-15T3

In general, particularly suitable means that "the general 

welfare is served because the use is peculiarly fitted to the 

particular location for which the variance is sought." Kohl, 50 

N.J. at 279. Our Supreme Court has observed that, in the context 

of the specific parcel, it means that strict adherence to the 

established zoning requirements would be less beneficial to the 

general welfare. See Kramer, 45 N.J. at 290-91. An application 

demonstrates a special reason if there is proof that "the subject 

property was particularly suitable for the proposed use." Medici 

v. BPR Co., 107 N.J. 1, 24 (1987).

At the same time, our Supreme Court has recognized that almost 

all lawful uses of property can be said to promote the general 

welfare to some degree, with the result that if general societal 

benefit alone constituted "an adequate special reason, a special 

reason almost always would exist for a use variance." Kohl, 50 

N.J. at 280. As a result, any application for a use variance 

based on the particularly suitable standard has always called for 

an analysis that is inherently site-specific. See Stop & Shop 

Supermarket Co. v. Bd. of Adjustment of Springfield, 162 N.J. 418, 

431 (2000).

The negative criteria set forth in N.J.S.A. 40:55D-70 states 

that the applicant must show the "variance or other relief can be 

granted without substantial detriment to the public good and will 
28 A-4349-15T3

not substantially impair the intent and the purpose of the zone 

plan and zoning ordinance." The applicant must establish the 

negative criteria with an "enhanced quality of proof." Price v. 

Himeji, LLC, 214 N.J. 263, 286 (2013). To do so, the applicant 

must focus "on the effect that granting the variance would have 

on the surrounding properties." Ibid. The applicant "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.

We conclude there was sufficient credible evidence supporting 

the Board's finding that MIB satisfied both the positive and 

negative criteria for the use variance. As to the positive 

criteria, the Board had ample evidence that the approximately six 

acres comprising Lot 5.02 was particularly suited for the funeral 

home and substantially undersized to construct condominium units. 

The funeral home would continue the residential feel of the 

surrounding area while providing a buffer between the commercial 

and residential uses. MIB met all applicable light, air, and open 

space requirements, while also addressing the decreased traffic 

impact. 

As to the negative criteria, as Judge Brenner found, although

residential development on the property had been approved, the 
29 A-4349-15T3

fact that it had been undeveloped for almost six years indicated

that residential use was not the most viable option. Additionally, 

both the Board's traffic engineer and MIB's traffic engineer agreed 

that the traffic impact would be less than if condominium units 

were constructed. Further, as Judge Brenner found, a funeral home 

with a residential look and aesthetically pleasing design would 

provide a balanced community, which was directly in line with 

Jackson Township's master plan. Therefore, we are satisfied that 

the Board's decision was not arbitrary, capricious, or 

unreasonable and was amply supported by the record.

Affirmed.