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Reich v. The Borough of Fort Lee Zoning Board of Adjustment

414 N.J. Super. 483, 999 A.2d 507 (App. Div. 2010)

ZONING; VARIANCES —If a proposed use of a prior non-conforming use would not expand the use any more than a similar, but permitted use would expand use of the premises, then a zoning use board would be arbitrary, capricious or unreasonable in denying the variance.

An endodontist purchased a commercial condominium unit within a residential condominium complex. Several years later, the endodontist was served with a “cease and desist” order by the municipality after residents complained that a second dentist was practicing in the office in violation of the unit’s single certificate of occupancy (CO). The endodontist appealed the order, explaining to that he had only hired an associate to cover his emergencies when he was not working there. The zoning board adopted its attorney’s interpretation that a second dentist practicing at the premises was acceptable as long as the two dentist’s working hours did not overlap and result in utilizing the space at the same time.

Several years later, the endodontist desired to increase the use of his space by sharing his space with a periodontist. The shared use would result in the dentists occasionally overlapping in the space. The periodontist applied for a certificate of occupancy, but the construction official denied it based on the zoning board’s prior conclusion that two practitioners could not use the premises at the same time. The periodontist filed an application with the zoning board seeking an interpretation of the construction official’s decision as well as permission to have two dental practices operating concurrently within the space. At some point before the hearing, the zoning board’s attorney advised the periodontist to amend his application to include a request for a “d” variance.

During the hearings, the endodontist’s attorney claimed that while he was seeking a separate CO for the periodontist, the underlying medical use was a permitted accessory use under the zoning code and he was merely adding another doctor to the office. While acknowledging that the office did not comply with interior access and parking requirements, he argued that the non-conforming use of the property was not changing. The endodontist’s planner opined that the proposal was identical to an earlier zoning board application in which the zoning board allowed a second dentist to occupy an existing dental office without requiring the second dentist to supply additional parking. The planner also noted that the application would not require an increase in the size of the building’s footprint. In contrast, the residents complained that parking already was difficult in the area, and that the addition of another dentist would increase the problem. They also complained that the additional working hours would increase the noise level and disrupt the residents of the condominium.

The zoning board rejected the application, finding that the endodontist had failed to satisfy the requirements for expanding a nonconforming use. It found that addition of another dentist, medical staff, and patients was not particularly suited to the area was an intensification of the existing use. The endodontist sued.

The lower court found that the zoning board’s decision was not arbitrary, capricious or unreasonable, but the Appellate Division reversed, finding that the municipality never enacted an ordinance limiting the number of professionals or staff in an office accessory to an apartment building. Therefore, the endodontist could have brought in as many associates and staff as needed to utilize the space within his unit without further application to the zoning board, except to obtain conditional use permit. The Court also found that the zoning board’s reliance on it is attorney’s interpretation that the endodontist could not have an overlapping employee was arbitrary. In addition, it ruled that the zoning board’s reliance on parking complaints from the neighbors was also unreasonable.

The zoning board’s basis for finding that the additional dentist would intensify the non-conforming use was the shortage of parking and increase in noise that could occur with an additional dentist present. The problem for the Court was that those problems would also apply if a second dentist were permitted to practice in the endodontist’s space but without any overlap between the two dentists. The Court also noted that there was testimony showing that the two dentists’ practices were complimentary, and had less volume and turnover than another dentist operating in the area. Lastly, the Court found that in other cases, over the years, the zoning board appeared to allow the addition of medical professionals without requiring a variance. Based on these circumstances, the Court found that the zoning board’s determination that the endodontist was increasing the intensity of his non-conforming use and required a variance, and its denial of a variance, was arbitrary, capricious, and unreasonable.


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