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Lentini v. Board of Adjustment of the Borough of Fair Lawn

A-3540-03T3 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING—Where a land use board lacks credible evidence to support its decision, that decision will not be afforded the usual deference given by the courts.

A restaurant owner applied for a use variance so that he could add a drive-thru to his restaurant. The restaurant was located on a corner lot fronting a highly traveled section of a county highway and was surrounded by commercial properties. To the rear of the restaurant, there was a residential neighborhood, but there was a decorative brick wall and landscaping, each serving as a buffer. The owner’s architect explained that in order to build the drive-thru, several parking spaces at the back of the restaurant and toward the residential neighborhood would be eliminated, the trash receptacle would be moved from the entrance between the restaurant and the neighboring restaurant, additional landscaping would be planted, more traffic signs would be added, and the shared driveway with the neighboring restaurant would be widened to increase the site lines. The owner argued that his proposal would increase safety by widening the site lines and moving the trash receptacle toward the back of the property. The owner also claimed that the addition of the drive-thru would not significantly increase vehicular traffic, but would increase safety for customers with younger children or disabled individuals who could order without leaving their cars. The board of adjustment’s experts did not disagree with the owner’s experts’ conclusions. In fact, the board expert concluded that the owner met the burden for receiving a variance. An expert in the fast food industry also concluded that the drive-thru had safety benefits but would not appreciably increase the traffic at the site. Nonetheless, the board denied the owner’s application. The owner appealed.

The lower court, while agreeing that a variance was needed, directed the board to elaborate on its findings denying the owner’s application for a variance. It also noted that the majority of the evidence presented was either favorable to the owner or not unfavorable. The board, in a supplemental resolution, again denied the application for a variance. It concluded that the benefit of a drive-thru was not for the community as a whole, but only for the patrons of the restaurants. Therefore, it found that the applicant had not met the positive criteria for obtaining a variance. With respect to the negative criteria, the board rejected the findings of the owner’s expert and its own expert with respect the increased safety. It also ignored the expert’s opinions in stating its belief that the drive-thru would bring increased noise and exhaust to the residential neighborhood. The owner again challenged the board’s findings. This time, the lower court deferred to the board’s findings and the owner appealed to the Appellate Division. That Court found that the board’s denial was not supported by credible evidence and contradicted all expert reports, and therefore it was arbitrary, capricious, and unreasonable. It noted that a board’s denial of a variance is entitled to greater deference than a decision approving a variance. Here, the Court found that beautifying an area and promoting safety are recognized as “special reasons” that satisfy the positive criteria for approving a variance. Since the owner showed “special reasons,” the board, in rejecting the experts’ testimony needed to explain why it rejected it. It also found that the board did not have any credible evidence to support its conclusions. With respect to the negative criteria, the owner demonstrated, through uncontrolverted expert testimony, that the addition of the drive-thru would improve safety through widening the entrance and site lines and would not appreciably increase traffic to the site. Lastly, the Court found that since the owner met the criteria for obtaining a variance, and the board had no credible evidence supporting its decision to deny it, the board’s decision was arbitrary, capricious, unreasonable, and not entitled to deference.


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