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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2634-07T12634-07T1
250 PASSAIC, L.L.C.,
Plaintiff-Appellant,
v.
TONYMAR, L.L.C., and
THE BOARD OF ADJUSTMENT
OF THE CITY OF NEWARK,
Defendant-Respondents.
Argued December 15, 2008 - Decided
Before Judges Reisner and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-10018-
05.
Michael Edelson argued the cause for appellant (Hellring Lindeman Goldstein & Siegal,
L.L.P., attorneys; Mr. Edelson and Bruce S. Etterman, on the brief).
Tonya M. Smith argued the cause for respondent Tonymar, L.L.C. (Giantomasi & Oliveira,
attorneys; Ms. Smith, on the brief).
Piro, Zinna, Cifelli, Paris & Genitempo, attorneys for respondent The Board of
Adjustment of the City of Newark (Angelo Cifelli, Jr., on statement in lieu of a brief).
PER CURIAM
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This zoning case involves a decision by the Newark Board of Adjustment to grant defendant Tonymar, L.L.C. a use
variance to construct a massive carwash near the Passaic River in Newark (the City). The City's Master Plan
designates the area for waterfront development, and its zoning ordinance prohibits car washes. Plaintiff 250
Passaic, L.L.C. appeals from a trial court order dated January 14, 2008, finding that the Board's decision was not
arbitrary and capricious but remanding the variance application to the Board for more specific findings of fact.
Because we conclude that, regardless of any further factfinding the Board might make, the record does not contain
sufficient evidence to support a use variance, we reverse.
I
On February 25, 2004, Tonymar applied for a use variance to construct a carwash and oil change facility on Block
445, Lots 1-37 (the property) near the intersection of McCarter Highway and Passaic Street in Newark. It is
undisputed that the City's zoning ordinance prohibits car washes in the proposed location, which is in the I-2
Industrial zone, as well as prohibiting carwashes anywhere in the city.
Significantly, on December 6, 2004, the City's Central Planning Board adopted the Land Use Element of the
Master Plan for the City of Newark. Part of that plan was the creation of an S-W waterfront zone, which included the
area in which Tonymar proposed to build the carwash. The relevant portion of the Master Plan provides as follows:
This designation is applied to that portion of the Passaic River waterfront that the City
intends to redevelop as a mixed-use environment —— residential retail, entertainment
and open space and recreation uses and office uses —— with a particular emphasis and
orientation to waterfront activities, i.e., marinas, boating, walkways along the
waterfront, outdoor cafes, etc. Design principles articulated in the Passaic Riverfront
Redevelopment Plan should be incorporated into the zoning designation for this area
which in addition to encouraging mixed uses and a waterfront orientation and public
access, should call for a protection of view corridors, setbacks from the waterfront to
provide waterfront esplanades with public access, active ground-floor uses at the
water's edge, pedestrian connections to residential neighborhoods behind the
waterfront, and a uniform set of design standards for public improvements, including
such items as lighting, paving, landscaping, street furniture, signage, colors, materials
and style. The area to be designated S-W not only include[s] the area in the Passaic
Riverfront Redevelopment Plan Study, i.e., the area of riverfront between Minish Park
and Newark Bears and Eagles Riverfront Stadium, but all of the riverfront between the
Passaic River and McCarter Highway stretching from the Belleville border in the north
all the way to Penn Station in the downtown and then between the Passaic River and
Raymond Boulevard from Penn Station into the North Ironbound neighborhood.
Much of the waterfront area adjacent to the downtown has been cleared and is ready
for redevelopment. Portions of the area designated S-W Waterfront use between
Newark Bears and Eagles Riverfront Stadium and Interstate 280 are still developed for
industrial or retail or other uses, and north of Interstate 280, these areas contain mostly
active industrial uses. As the market for waterfront development becomes established
adjacent to the downtown and in the Passaic Riverfront Redevelopment area, it is
hoped that such uses would spread northward and replace the older industrial and
other uses along the waterfront.
II
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The following relevant evidence was introduced at the variance hearing before the Board, which began in
April 2005. The applicant first presented testimony from an architect, Albert Alvarez. He outlined the location of the
property between McCarter Highway and Passaic Street in Newark, the configuration of the planned building, and
its proposed use as a carwash, car detailing center and quick-lube facility. He also addressed traffic and parking
issues.
The property owner, Mario Decosta, who was also the managing member of Tonymar, testified that he owned a
large number of other carwashes, including a newly-opened facility elsewhere on McCarter Highway in Newark. The
gist of his testimony was that the project would be a well-designed, environmentally sound, state-of-the art
carwash, detailing, and oil-change facility. It would employ a maximum of twenty people. DeCosta testified that the
property was a convenient location for a carwash because there was a lot of existing traffic in the area. In answer to
a question from a Board member, DeCosta testified that he had not considered any other possible use for the
property. He also testified that although he was seeking to subdivide the property, and place the carwash on one of
the newly—created lots, he had no current plans for other proposed lot.
The applicant also presented key testimony from Ilene Binyra, a licensed professional planner. She testified that she
had reviewed two prior master plans, as well as the City's current master plan adopted in December 2004, and the
zoning ordinance. Her testimony was designed to show that the site was "particularly suitable for the intended use,"
and to address the positive and negative criteria for purposes of obtaining a use variance. See 231 N.J. Super. 239,
248 (App. Div. 1989). Unless, as here, the record clearly cannot support the challenged variance, where a Board has
issued a deficient resolution, a trial court should remand to the Board for a more complete resolution without
placing the court's advance imprimatur on the grant of the variance.
III
In reviewing the trial court's decision, we employ the same standard of review that the trial court used to consider
the Board's Resolution.
"When reviewing the decision of a trial court that has reviewed municipal action, we are
bound by the same standards as was the trial court." Because of its "peculiar knowledge
of local conditions," the Board's factual findings are entitled to substantial deference
and are presumed to be valid. The Board's conclusions of law are subject to de novo
review. However, "although we construe the governing ordinance de novo, we
recognize the board's knowledge of local circumstances and accord deference to its
interpretation."
[Grubbs v. Slothower, 389 N.J. Super. 377, 382-83 (App. Div. 2007)(citations omitted).]
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We will uphold the Board's decision so long as it is not arbitrary, capricious or unreasonable, is supported by
substantial record evidence, and is consistent with applicable law. See Medici v. BPR Co., 107 N.J. 1, 15 (1987);
Northeast Towers, Inc. v. W. Paterson Zoning Bd. of Adjustment, 327 N.J. Super. 476, 493-94 (App. Div. 2000).
However, we owe less deference to a board's grant of a variance than to a denial of a variance. Saddle Brook Realty,
LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75 (App. Div. 2006); Northeast Towers,
supra, 327 N.J. Super. at 494. "This greater deference [to a denial] arises in part from the recognition that only
exceptional cases warrant use variances because this state's legislative policy strongly favors 'land use planning by
ordinance rather than by variance.'" Northeast Towers, supra, 327 N.J. Super. at 494 (citation omitted).
The granting of a use variance is governed by the Municipal Land Use Law:
No variance or other relief may be granted under the terms of this section, including a
variance or other relief involving an inherently beneficial use, without a showing that
such variance or other relief can be granted without substantial detriment to the public
good and will not substantially impair the intent and the purpose of the zone plan and
zoning ordinance.
[ 152 N.J. 309, 323 (1998)(citations omitted).]
An applicant can satisfy the positive criteria by showing that the proposed use is inherently beneficial, that the
owner would suffer undue hardship without the variance, or that the use would serve the general welfare because
the site is particularly suitable for the proposed use. Saddle Brook, supra, 388 N.J. Super. at 76. Tonymar relies on
the latter category, contending that the property is particularly suitable for a carwash. Having reviewed the record,
we find that the evidence does not support such a finding.
In determining whether a site is "particularly suited" for the use proposed by a variance, "benefit to the general
welfare derives not from the use itself but from the development of a site in the community that is particularly
appropriate for that very enterprise." Medici, supra, 107 N.J. at 18. Courts will find the standard met where
"generally, the use is one that would fill a need in the general community, where there is no other viable location,
and where the property itself is particularly well fitted for the use either in terms of its location, topography or
shape." Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 210 (App. Div. 1999). However, mere
convenience to potential customers of a commercial establishment does not qualify to make a use "particularly
suited" to a site. Saddle Brook, supra, 388 N.J. Super. at 77-78.
In Medici, supra, we reversed a trial court's denial of a variance for construction of a motel in South Plainfield, a use
that was not permitted by the zoning ordinances of the municipality. Id. at 5, 8-9. In ordering a grant of the
variance, we cited as among the positive criteria the fact that the location had "proximity to highways." Id. at 8-9.
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The Supreme Court reversed, stating that "[t]he fact that the site is near an interstate highway does not distinguish
it from any other property in the vicinity of the highway," concluding that the applicant had not carried its burden
with respect to the criteria. Id. at 24.
Likewise, in Funeral Home, supra, we held that an applicant had not established grounds for a use variance to build
a funeral home in an area where such a use was prohibited. The applicant claimed that the funeral home would
create a transition between a residential zone and a business zone. However, "Medici makes clear that although
property may be thought to be particularly suitable for a proposed use because the use fits well with the
surrounding area (such as the Board's "buffer" or transition notion here), that does not equate to special reasons."
Funeral Home, supra, 319 N.J. Super. at 209. We noted that "we have found peculiar suitability special reasons exist,
where, generally, the use is one that would fill a need in the general community," and "there is no other viable
location." Id. at 210.
The funeral home applicant, however, did not meet this standard:
[T]he Board made no finding that a funeral home use was not available in other
locations in the area or, indeed, that there was a community need for such use. . .                                     . We
know that there are four funeral homes already in the area. We know that one of them,
plaintiff's, preexisted the current ordinance. There is no evidence, then, that funeral
home use was nonexistent or uncommon at the time of the last required ordinance
revision. Neither is there any evidence of substantial changes in the character of the
surrounding neighborhood, or the alteration of the needs and character of the
community that would reconcile the nonpermitted use with the present zoning
ordinance.
[Id. at 214-15.]
In another analogous case, Saddle Brook, supra, we addressed the grant of a variance to build a Wendy's fast-food
restaurant in a shopping mall in a town where the zoning ordinance prohibited fast-food restaurants. We found the
zoning board's findings inadequate to justify a use variance:
In addressing [the positive criteria], the Board stated: "The Board finds that the
proposed use fits within the scheme of the existing shopping center." This finding does
not support the conclusion that the proposed location of the Wendy's is "particularly
suitable" for a fast food restaurant. See Funeral Home Mgmt., supra, 319 N.J. Super. at
209 (holding that "although property may be thought to be particularly suitable for a
proposed use because the use fits well with the surrounding area . . . , that does not
equate to special reasons"). The Board did not find that the mall is a more suitable
location for a fast food restaurant than any other location in the Saddle Brook
commercial district, which is a prerequisite for finding that there are special reasons
justifying a use variance. See Medici, supra, 107 N.J. at 24 (holding that "[t]he fact that
the site is near an interstate highway does not distinguish it from any other property in
the vicinity of the highway" and thus does not constitute a special reason sufficient to
sustain a use variance).
Nor does the Board's finding that "a fast food restaurant with a drive through facility has
a lower parking demand than a traditional restaurant" support the conclusion that the
mall is a particularly suitable location for the proposed fast food restaurant because this
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would be equally true of any other site where the restaurant might be located. See
Funeral Home Mgmt., supra, 319 N.J. Super. at 212 (holding that alleviation of traffic or
parking congestion was not a special reason justifying use variance where proposed use
as funeral home would "add to the traffic in the area, albeit perhaps less so than a
permitted use" as an office). Moreover, there undoubtedly are other potential
commercial uses of the fourth building in the mall that would require less parking
facilities than either a traditional or fast food restaurant.
At best, the evidence Grillco presented to the Board could support a finding that a fast
food restaurant would be a convenience to some customers of the existing retail stores.
However, such a convenience does not constitute "an inherent benefit to the general
welfare" that can support the finding of "special reasons" required for the grant of a use
variance. Medici, supra, 107 N.J. at 18. To support a finding of special reasons, "any
benefit to the general welfare [must] derive[] not from the use itself but from the
development of a site in the community that is particularly appropriate for that very
enterprise." Ibid. There is no evidence in the record that could support a finding that
the Brighton mall is a particularly appropriate site for a fast food restaurant, particularly
in view of the fact that there already are several fast food restaurants located nearby
and two other stores in the mall that sell take-out food.
[Saddle River, supra, 388 N.J. Super. at 77-78.]
We also concluded that the Board had not reconciled the grant of the variance with the municipal governing body's
decision to specifically prohibit fast-food restaurants in the town:
Initially, we note that Grillco's proposed fast food restaurant is not simply "a use
omitted from" the permitted uses listed in the zoning ordinance. Instead, it is a use that
the Saddle Brook governing body has expressly prohibited in every zoning district. As
one commentator has observed: [W]here a particular use was specifically addressed by .
. . the zoning ordinance[,] . . . arrogation of [the governing body's] planning
responsibilities should be at the forefront of a board of adjustment's concerns" in
considering an application for a use variance. William M. Cox, N.J. Zoning & Land Use
Administration, § 8-2.3 at 228-29 (2006). Furthermore, Grillco did not present any
evidence that "the character of [Saddle Brook] has changed substantially since the
adoption of the . . . zoning ordinance" prohibiting new fast food restaurants. Therefore,
the Board's grant of a use variance for a fast food restaurant in the face of the
governing body's express prohibition of this use constituted a usurpation of "the
legislative power reserved to the governing body of the municipality."
[Id. at 80-81. (citations omitted)]
Accordingly, we reversed a decision of the Law Division affirming the Board's grant of the use variance.
We find Medici, Funeral Homes, and Saddle Brook on point here. There is simply no proof in this record that
Tonymar's property is particularly suited for a carwash, as opposed to another use. In fact, Tonymar's owner testified
that he had not even considered any other possible uses, including uses that would be permitted by the zoning
ordinance. There was no evidence of any particular need for another car wash in Newark. The record reflects that
there are fifteen car washes in the City, including one located fairly close to the site.
In addition to falling short of satisfying the positive criteria, the application did not satisfy the negative
criteria:
[A]n applicant for a use variance must show by "an enhanced quality of proof . . . that
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the variance sought is not inconsistent with the intent and purpose of the master plan
and zoning ordinance[,]" and the Board must make "clear and specific findings" that this
showing has been made. 107 N.J. at 21. "The applicant's proofs and the board's findings
. . . must reconcile the proposed use variance with the zoning ordinance's omission of
the use from those permitted in the zoning district." Ibid.
[Saddle Brook, supra, 388 N.J. Super. at 79 (emphasis added) (quoting Medici, supra,
107 N.J. at 21).]
The proposed use is specifically prohibited by the zoning ordinance and is inconsistent with the master plan
recently adopted before the Board heard the application. Nothing in the language of the master plan supports
Binyra's testimony that the site was not within the waterfront district. The fact that the zone currently has a lot of
industrial buildings is hardly remarkable, given its current I-2 zoning. But the master plan contemplates a transition
to a different set of uses consistent with a more modern vision of the City. The Board's resolution failed to reconcile
the proposed use of the site with the master plan. Moreover, on this record, we conclude that the use cannot be
reconciled with the master plan.
Because the applicant did not satisfy the positive criteria or the negative criteria as set forth in Medici, supra, we
conclude that the trial court should have reversed the Board's decision to approve the application rather than
remanding to the Board for reconsideration.
Reversed.
0x01 graphic
Tonymar also applied for final site plan and subdivision approval. The subdivision application sought to merge two
existing lots and then subdivide them into two lots of different sizes, with the carwash and oil change facility to be
constructed on one of the lots. In light of our decision on the use variance, we will not address the issue of the site
plan.
Both parties presented extensive expert testimony on the issues of traffic and parking. However, we need not
address this evidence in detail as it is peripheral to our decision.
The objectors' traffic engineer, Brian Intindola, testified that although McCarter Highway was a heavily-traveled
road, cars would not be allowed to enter the carwash from McCarter Highway.
In response to light and noise concerns, the Board conditioned its approval upon Tonymar limiting the facility's
hours of operation.
Forty objectors appeared at the hearing. However, Santana was the only objector who testified.
The Board imposed several conditions on the approval, relating to site plan issues, which are not pertinent to our
decision. The trial judge concluded that the site plan approval was improper.
While we reverse the trial court's decision, this record illustrates the problems which may arise when a city adopts a
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visionary master plan that is substantially at odds with the current zoning and does not promptly amend its zoning
to conform to the master plan. If Newark does not amend the I-2 zoning of this district to conform to the master
plan, property owners may construct additional facilities that are inconsistent with the waterfront plan and are
inconsistent with the expectations of those owners, such as the Comfort Suites, that have built structures consistent
with the plan. For example, under current zoning, Tonymar could construct an oil change facility without a variance.
(continued)
(continued)
27
A-2634-07T1
January 9, 2009
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