SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5104-15T3

PL SQUARED, LLC,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT OF

THE TOWNSHIP OF HOPEWELL, a

Municipal Corporation of the 

State of New Jersey,

Defendant-Respondent.

______________________________

 Argued telephonically September 26, 2017 –

Decided October 5, 2017

Before Judges Fasciale and Moynihan.

On appeal from Superior Court of New Jersey, 

Law Division, Mercer County, Docket No. L2800-15.

Eric Goldberg argued the cause for appellant 

(Stark & Stark, attorneys; Mr. Goldberg and 

Gene Markin, of counsel and on the briefs).

Kevin A. Van Hise argued the cause for 

respondent (Mason, Griffin & Pierson, P., 

attorneys; Cory K. Kestner, of counsel and on 

the brief).

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE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-5104-15T3

In this action in lieu of prerogative writs, plaintiff PL 

Squared, LLC appeals from a June 21, 2016 order upholding a 

resolution by defendant Zoning Board of Adjustment of the Township 

of Hopewell (the Board) denying plaintiff's application seeking a 

N.J.S.A. 40:55D-70(d)(1) use variance and various N.J.S.A. 40:55D70(c)(1) bulk variances. There exists substantial credible 

evidence in the record to support the Board's findings, there is 

no clear abuse of discretion, and the decision is not arbitrary, 

capricious, or unreasonable. We therefore affirm.

Plaintiff owns a single-family dwelling (the property)

located in a Mountain Resource Conservation Zoning District (MRC). 

Plaintiff intended to develop the property as a convenience store 

and gas station. As part of that proposed development, plaintiff 

applied to the Board for the use variance, and requested other 

variance relief from certain bulk requirements. 

The Board conducted hearings on several days, took testimony 

from witnesses, and reviewed documents admitted into evidence. In 

denying the applications, the Board concluded that plaintiff 

failed to demonstrate the site was suited for the proposed uses. 

The Board also found that granting the variances conflicted with

the town's master plan, and contravened an applicable ordinance, 

which precluded multiple uses for lots located in the MRC District. 

Plaintiff then filed this complaint. 
3 A-5104-15T3

On appeal, plaintiff argues that the Board's denial of the 

use variance was arbitrary, capricious, and unreasonable. 

Plaintiff contends there is insufficient evidence in the record

to support the Board's denial of the use variance. Plaintiff 

maintains that the Board, and the judge, failed to appreciate that 

denying the variances would result in "economic inutility," which 

plaintiff contends constitutes "special reasons" to issue the use 

variance.

Our standard of review is well settled. "In evaluating a 

challenge to the grant or denial of a variance, the burden is on 

the challenging party to show that the zoning board's decision was 

'arbitrary, capricious, or unreasonable.'" Price v. Himeji, LLC,

214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adjustment, 45 

N.J. 268, 296 (1965)). "[Z]oning boards, 'because of their 

peculiar knowledge of local conditions[,] must be allowed wide 

latitude in the exercise of delegated discretion.'" Ibid. (second

alteration in original) (quoting Kramer, supra, 45 N.J. at 296). 

Therefore, a zoning board's decision "enjoy[s] a presumption of 

validity, and a court may not substitute its judgment for that of 

the [zoning] board unless there has been a clear abuse of 

discretion." Ibid. (citing Cell S. of N.J., Inc. v. Zoning Bd. 

of Adjustment, 172 N.J. 75, 81 (2002)). 
4 A-5104-15T3

The level of deference given to a zoning board's decision to 

grant a variance is less than the level of deference given for a 

denial of a variance. Saddle Brook Realty, LLC v. Twp. of Saddle 

Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75 (App. Div. 

2006) (citing Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. 

Super. 200, 208 (App. Div. 1999)). Nevertheless, a zoning board 

must base its decision on substantial evidence in the record. Cell 

S. of N.J., Inc., supra, 172 N.J. at 89. We review any issue of 

law de novo. Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 

N.J. Super. 189, 197 (App. Div. 2009).

We begin by addressing plaintiff's use variance application. 

Applicants seeking a use variance pursuant to N.J.S.A. 40:55D70(d)(1) must show positive and negative criteria. Medici v. BPR 

Co., 107 N.J. 1 (1987). The legal principles associated with 

these terms are well settled. 

As to the positive criteria, plaintiff must show "special

reasons." N.J.S.A. 40:55D-70(d). Such an obligation may be 

established when (1) "'the proposed use inherently serves the 

public good'"; (2) "'the property owner would suffer "undue 

hardship" if compelled to use the property in conformity with the 

[zoning ordinance]'"; or (3) "'the use would serve the general 

welfare because the . . . site is particularly suitable for the 

proposed use.'" Nuckel v. Borough of Little Ferry Planning Bd., 
5 A-5104-15T3

208 N.J. 95, 102 (2011) (quoting Saddle Brook Realty, LLC, supra,

388 N.J. Super. at 76). "[P]eculiar suitability special reasons 

exist where, generally, the use is one that would fill a need in 

the general community, where there is no other viable location, 

and where the property itself is particularly well fitted for the 

use either in terms of its location, topography or shape." 

Basralian, supra, 319 N.J. Super. at 210. Plaintiff focuses on 

the second and third categories. 

Economic inutility of a parcel of land, resulting from the 

parcel not being reasonably adapted to a conforming use, is 

recognized as an undue hardship, and thus, can constitute grounds 

for a variance. Medici, supra, 107 N.J. at 17 n.9. Plaintiff 

reiterates its assertion that the property has "declining 

suitability for residential use." The record demonstrates, 

however, that the dominating uses in the surrounding area of the 

property are residential and open space. Moreover, the New Jersey

Department of Environmental Protection (NJDEP) owns property 

immediately behind and around the property, which the NJDEP uses 

for open space. Finally, property uses on Route 518 and Route 31 

are predominantly residential or abandoned commercial uses. 

Consequently, we agree with the judge that there is no credible 

basis in the record to conclude that the purported economic 

inutility amounts to a special reason constituting undue hardship. 
6 A-5104-15T3

As to the negative criteria, plaintiff must show "that the

variance 'can be granted without substantial detriment to the 

public good' and that it 'will not substantially impair'" the 

zoning regulations. Price, supra, 214 N.J. at 286 (2013) (quoting 

N.J.S.A. 40:55D-70). The first element "focuses on the effect 

that granting the variance would have on the surrounding 

properties." Ibid. (citing Medici, supra, 107 N.J. at 22 n.12). 

The second requires proof "reconcil[ing] 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). An "enhanced quality of proof" is 

required, "as well as clear and specific findings . . . that the 

grant of a use variance is not inconsistent with the intent and 

purpose of the master plan and zoning ordinance." Medici, supra, 

107 N.J. at 4. 

There is sufficient credible evidence in the record to support 

the Board's findings that plaintiff failed to satisfy its burden, 

especially as to the negative criteria. The findings include the 

manner in which granting the variances would contradict the town's 

master plan and contravene the local ordinance. 

[S]ince adoption of the 2002 Township Master 

Plan and subsequent Master Plan ReExaminations, the Township has continued to 
7 A-5104-15T3

maintain a commitment to limit and discourage 

highway dependent commercial uses where such

uses do not already exist. Thus, the Township 

has specifically provided for, by zoning, 

specific commercial corridors in the Township. 

The subject property is not within such an 

area. The Board finds that the proposed use 

would be appropriately located in a commercial 

corridor, [rather than] the subject 

property[,] where such highway[-]dependent 

businesses have been specifically precluded. 

Moreover, the Board notes that the subject 

property had previously been zoned for 

commercial use, but was specifically rezoned 

to low density residential as part of the MRC

zoning enactment following the 2002 Master 

Plan reexamination. Therefore, the Board 

remains concerned that granting the variances 

requested here would be an impermissible 

usurpation of the governing body's exclusive 

power to zone, and would be directly contrary 

to the intent and purpose of the Master Plan 

and zoning ordinance. 

In light of these factors, the Board finds 

that [plaintiff] has not sustained its burden 

of satisfying the positive and negative 

criteria necessary for obtaining the requested 

variances, or that the application is in 

compliance with the applicable standards set 

by the MLUL and [ordinances]. 

For these reasons, the Board finds that there 

will be a substantial detriment to the public 

good and there will be substantial detriment 

to the zone plan and zoning ordinance if the 

requested relief were granted. Furthermore, 

the Board's granting of the requested 

variances would in fact impair and impede the 

goals of the Township Master Plan and 

[ordinances].

We see no reason to disturb these findings.
8 A-5104-15T3

Although plaintiff focuses primarily on the denial of its use 

variance application, the Board also denied plaintiff's 

application for various bulk variances. N.J.S.A. 40:55D-70(c), 

which generally authorizes the Board to grant bulk variances, 

provides in part:

(1) Where: (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 article 8 of this act 

would result in peculiar and exceptional 

practical difficulties to, or exceptional and 

undue hardship upon, the developer of such 

property, [the board of adjustment shall have 

the power to] grant, upon an application or 

an appeal relating to such property, a 

variance from such strict application of such 

regulation so as to relieve such difficulties 

or hardship[.]

In addition, an applicant must establish the aforementioned 

negative criteria. N.J.S.A. 40:55D-70(d). There are sufficient 

facts in the record to support the Board's findings that plaintiff 

failed to do so. 

We therefore conclude that plaintiff failed to show that the 

Board's decision was arbitrary, capricious, or unreasonable. The 

Board followed the applicable law, based its decision on 
9 A-5104-15T3

substantial evidence in the record, and correctly denied the 

applications. Applying the wide latitude to zoning boards in the 

exercise of their delegated discretion, and seeing no abuse of 

discretion here, we decline to substitute our judgment for that 

of the Board's. 

Affirmed.