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DeAngelis v. Zoning Board of the Township of West Milford

A-6077-98T3 (N.J. Super. App. Div. 2000) (Unpublished)

ZONING; NON-CONFORMING USES—A zoning board member’s statement that “zoning is confiscation of private property” was held not to have touched on the merits on an application for a variance to expand a prior non-conforming use.

The owner of a restaurant applied for expansion of a pre-existing, non-conforming use. The restaurant had operated in a residential area since 1921, before the advent of any zoning ordinances. The owner wanted to expand the kitchen, winterize a porch, and convert the upstairs for dining. These resulting changes made it necessary for the owner to also address off-street parking, septic location, lighting, landscaping, garbage removal, and other land development ordinance standards. An architect and planner testified before the zoning board on behalf of the owner citing “special reasons” in support of the variance, one of which was that the restaurant was “a high end, sit down restaurant which would fit well into the character of the neighborhood.” The planner also testified that “the proposed expansion would actually improve the way the property will fit in with the surrounding properties. The aesthetic improvements would not only enhance the property, but, ... would also soften the impact on surrounding properties.” Testimony from objectors, mostly adjoining property owners, also was heard. The primary objection to the variance was the anticipated additional noise and traffic. The zoning board considered the testimony and granted the variance subject to the following conditions: site plan approval, deliveries and garbage pick-up between the hours of 8:00 a.m. and 8:00 p.m., a maximum seating capacity of 110, no overnight guests at the premises, and that correction of a septic problem. During the zoning board meeting, one of the zoning board members remarked that “zoning is the confiscation of private property.” Two homeowners filed suit against the municipality and the restaurant owner seeking to invalidate the grant of the use expansion. In rejecting the homeowners’ challenge, the lower court held that the zoning board did not act arbitrarily or capriciously in reaching its decision because the zoning board opined that the restaurant owner’s attempts to ameliorate the conditions were reasonable and the board’s findings were based on evidence in the record and the testimony of the planner. The lower court also held that the remark made by the zoning board member did not indicate a predisposition, and that the restaurant owner was not unduly favored by it nor were the homeowners prejudiced under a totality of the circumstances analysis. One of the homeowners appealed, arguing four points: 1) the grant of the variance was arbitrary, capricious and unreasonable, 2) the restaurant owner failed to comply with the site plan ordinance, 3) the restaurant owner did not meet its negative burden of proof obligation, and 4) the vote by the board member who made the remark at the hearing should be invalidated. The Appellate Division upheld the lower court’s grant of the variance. With respect to the argument that the grant of the variance was arbitrary, capricious, and unreasonable, the Appellate Division held that “local people familiar with the community’s characteristics and interests are best equipped to assess the merits of a variance application. Public bodies must be given wide latitude in the exercise of their discretion. ... Consequently, there is a strong presumption in favor a zoning board’s decision, and that decision should not be overturned unless it is unreasonable and oppressive.” As to the claim that the restaurant owner failed to comply with the site plan ordinance, the Appellate Division found that this issue was not raised at trial and therefore could not be heard on appeal. As to the claim that the restaurant owner did not meet its negative burden of proof obligation, the Appellate Division recognized that the restaurant owner had to provide special reasons for the variance and also had to prove that the variance “can be granted without substantial detriment to public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.” Here, the Appellate Division concluded that the zoning board found no evidence from which to conclude that the grant of the variance would either be a substantial detriment to the public good or substantially affect the intent and purpose of the zoning laws. Instead, the zoning board found that the improvements would minimize the noise impact and would improve the screening between the restaurant and its neighbors. In this regard, the Appellate Division concluded that the zoning board did not act arbitrarily, capriciously or unreasonably. As to the final claim that the vote by the remarking board member should be invalidated, the Appellate Division concluded that “there is no indication that the [board member’s] opinions touched on the actual merits of the ... variance. Even if this were the case, it would not necessarily be the equivalent of personal bias or prejudice; nor would it be an indication of malice toward one or favoritism toward another. ... While the [board member’s] expressions of opinion were, undoubtedly, inappropriate, they do not clearly indicate that he prejudged the ... [variance] application.” In this regard, the Appellate Division upheld the lower court’s finding that such remarks by the board member did not give rise to reversible error.

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