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Kinderkamack Road Associates, LLC v. Mayor and Council of the Borough of Oradell

421 N.J. Super. 8, 22 A.3d 129 (App. Div. 2011)

ZONING; VARIANCES — A land use board does not need to accept an expert’s opinion in deciding whether an applicant has satisfied the positive criteria or has established that a particular piece of property is suitable for the proposed use.

A developer owned four lots in a municipality. One was in a residential zone and the others were in a business zone. The developer sought a variance seeking to construct a drive-through business on the properties. The residential property was to be used strictly as a landscaped buffer zone with no structures, commercial or otherwise. Over a year, the municipality conducted twelve hearings. The developer presented four expert witnesses: a licensed architect; a municipal engineer; a traffic engineer; and an urban planner. The developer also called one fact witness: a supervisor for the proposed store.

Regarding the positive criteria required by state law, the planner testified that the residential lot was well-suited for the proposed use because the plan would make the block consistent with the zone boundary, allow a more efficient site layout by expanding the buffer, and eliminate a number of non-conforming conditions already existing on the lots. Regarding the negative criteria, the planner testified that the impact on the residential neighbors would be mitigated by the benefit of the proposed buffer.

The land use board found that using the residential lot solely as a landscaped and fenced buffer protected the adjoining residential properties and would create a substantial transition area between the two zones. It further found that the proposed landscaped, fenced, buffer area was a less intrusive use than currently existed. The board imposed a deed restriction to limit the use of the residential lot to a landscaped/fenced/buffered area and to make sure it would never be used for any active commercial or other use. In addition, it granted a number of bulk, signage, and parking variances for the business lots, finding none of them to be substantially detrimental to the surrounding neighborhoods. In sum, the board found that the proposal was a better zoning alternative and would constitute a benefit to the community; would not be substantially detrimental to the public good; and was consistent with the purpose and intent of the zoning ordinance, Master Plan, and the Municipal Land Use Law.

A community group appealed the board’s decision to the municipality’s governing body, which conducted a full de novo review. The governing body issued a resolution reversing the board’s decision. It rejected the board’s findings and conclusions concerning the residential lot and instead found that the proposed use would have the effect of allowing the developer to bring its business use, namely a parking area, closer to the adjacent residential property. The governing body also found that the buffer area would have the effect of allowing the developer to more intensively use the other business lots. Neither of these results was deemed consistent with the Master Plan and the zoning ordinances. Thus, the governing body found that the application failed to satisfy either the positive or the negative criteria.

The developer filed a complaint in lieu of prerogative writs, seeking reversal of the governing body’s decision and the reinstatement of the prior variance approval. The lower court concluded that the record supported the governing body’s conclusions as to the negative criteria; thus, it ruled the decision was not made in an arbitrary, capricious or unreasonable manner

On appeal, the developer argued that the proposal satisfied the positive and negative criteria; the municipality improperly rejected the developer’s expert testimony; the lower court had failed to consider several existing non-conformities that would have been eliminated by the proposal; and the lower court erred in affirming the municipality’s arbitrary, capricious, and unreasonable decision. The Appellate Division noted that a governing body need not accept an expert’s opinion. Further, the Court examined the record and agreed that the developer had failed to satisfy the positive criteria by not establishing the residential lot’s particular suitability for the proposed use. Similarly, the claim that the proposed use would eliminate non-conformities did not demonstrate any particular suitability for the proposed use. Therefore, the developer failed to establish the positive criteria, and the municipality’s decision was not arbitrary, capricious or unreasonable.


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