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Market Street Mission v. Zoning Board of Adjustment of the City of Asbury Park

A-0685-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; USE VARIANCES — A land use board cannot deny a use variance based upon expressed fears and speculation, but must instead rely on reasonable factual data.

A century-old, non-profit organization that ministered to the homeless and helpless filed an application for four use variances. It wanted them to operate a rescue mission within property it owned. Its property consisted of a two-story commercial structure with adjacent land located partially in a light industrial zone (LI) and partially in a business zone. There were two houses on the same block, and another house one block away. In the past, the property housed a religious institution as well as a used car operation.

The use variances being sought were for a soup kitchen, a forty person residence, a house of worship, and the continuance of the used car sales operation. The organization proposed to serve a hot meal every night to 100 men, women, and children, to provide religious services nightly, to house a total of 37 homeless people (who during the day would be released into the community), but only on an emergency basis for no more than seven days, and to operate a three month residential life change program for 10 men.

The zoning board conducted hearings and denied all of the requested variances. It found that the proposed use for the property was not inherently beneficial. The organization sued to challenge the decision and the lower court reversed and remanded the matter for further proceedings. The court found there was a preponderance of evidence in the record demonstrating the proposed use was inherently beneficial and that the board’s decision was arbitrary and capricious. On remand, the board granted the variances subject to fifteen conditions. They included the posting of a guard to conduct an outside patrol one hour before and after the dinner program and called for a guest waiting area for clients inside the facility. The board memorialized its decision. Thereafter, a local activist group sued to reverse the board’s decision. The lower court ordered the board to complete supplemental proceedings, but did not stay the board’s decision to permit the use. The organization began its meals program and opened its shelter as the board conducted further proceedings. At its conclusion, the board reversed its prior decision and ordered the organization to stop its operations. The organization sued, but the lower court affirmed the board’s decision, finding that the organization failed to satisfy its negative criteria in its application for variances while observing the earlier lower court’s ruling that the proposed use at the property was inherently beneficial. Specifically, the lower court concluded that there was a significant risk that those with criminal backgrounds would be welcome into the program, that there was no oversight of the program since it was unlicensed, and that drug and alcohol dependent people would roam the streets during the day and after the program was over. It also found there would be increased loitering in the streets and an increased homeless population. The organization appealed.

The Appellate Division reversed, finding the board’s determination to be arbitrary and unreasonable. It remanded the matter with instructions to the board to set reasonable conditions. It also ruled that the record upon which the board relied to deny the variances was based not upon reliable factual data, but upon expressed fears and speculation. In fact, the evidence before the board demonstrated that there was a substantial need in the municipality for the services as proposed by the organization. The Court reviewed the underlying record and found no evidence had been presented that the organization’s original operation in a different municipality served persons with a significant criminal history. Additionally, the organization presented evidence that it was a licensed shelter, subject to state and county health and safety regulations. No evidence was presented that showed, through historical data, any increase in criminal activity resulting from the original mission’s presence. There was no evidence presented that the original mission’s similarly operated program increased the male homeless population on a permanent basis.

The Court also indicated that the municipality’s master plan recommended that philanthropic uses, such as soup kitchens and addiction counseling centers, be located in the LI zone, which is where the organization’s facility would be located. The Court concluded, given the organization’s proofs, that the organization’s proposal was an inherently beneficial use, and would not cause substantial detriment to the public good.


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