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 t elephonically September 26 , 2017

– D ecided October 5, 2017 Before Judges Fasciale and Moynihan. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L

2800

- 15. Eric Goldberg argued the cause for appella nt (Stark & Stark, attorneys; Mr. Goldberg and Gene Markin, of counsel and on the briefs). Kevin A. Van Hise argued the cause for responde nt (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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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

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In this act ion in lieu of prerogative writs, plaintiff PL Squared, LLC appeals from a June 21, 2016 order upholding a resolution by defendant Zoning Board of Adjustme nt 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. 40:55D

70 ( c ) (1) bulk variance s . 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 p roperty ) located in a Mountain Resource Conservation Zoning District (MRC). Plaintiff intended to develop the property a s a convenience store
and gas station . As part of that proposed development, p laintiff applied to the Board for the use variance, and requested other variance relief from certain bulk requirements. The Board conducted hearings on several day s, took testimony from witnesses, and reviewed documents admitted into evidence. In denying the app lication s, t he Board concluded that plaintiff failed to demonstrate the site was suited for the proposed uses.
The Board also found that granting the varia nces conflicted with the town's master plan , and contravened an applicable ordinance, which precluded multiple uses for lots located in the MRC District . Plai ntiff then filed this complaint .3 A - 5104

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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 o f the use variance. Plaintiff maintains th at the Board, and the judge, failed to appre ciate 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 (20 13) (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 exer cise 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

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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 re cord. 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.

A pplicant s s eeking a use variance pursuant to N.J.S.A. 40:55D

70(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 i n 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

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208 N.J. 95, 102 (2011) (quoting Saddle Br ook 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 locat ion, topography or shape." Basralian , supra , 319 N.J. Super. at 210. Plaintiff focuses on the second and third categories.

E conomic 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 i ts assertion that the property has "declining suitability for residential use." The record demonstrates,
howeve r, 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

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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

t hat 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). A n "enhanced qua lity 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.

T he re is sufficie nt 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 Re

Examinations, the Township has continued to7 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 lo cated in a commercial corridor, [rather than] the subject property [,] where such highway [ - ] dependent businesses have been specifically pre c luded. 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 posit ive 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 detrim ent 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 Townsh ip Master Plan and [ordinances]. We see no reason to disturb these findings.8 A - 5104

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Although plaintiff focuses primarily on the denial of i t s use variance application, the Board also denied plaintiff's application for various bulk variance s . 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 a re 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 t he

B oard's decision was arbitrary, capricious, or unreasonable . The Board followed the applicable law, based its decision on9 A - 5104

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substantial evidence in the record , and correctly denied the applications. Applying the wide latitude to zoning boards in the

exer cise of their delegated discretion, and seeing no abuse of di scretion here, we decline to substitute our judgment for that
of the Board's. Affirmed.