NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2035-15T1
JOSEPH BARTONEK, JOSEPH
BARTONEK, LLC, and BARTON
NURSERY ENTERPRISES, INC.,
Plaintiffs-Appellants,
v.
TOWNSHIP OF EDISON, TOWNSHIP
OF EDISON ZONING BOARD OF
ADJUSTMENT and DONNA SEREDY
d/b/a PRETTY PAWS PROFESSIONAL
PET GROOMING,
Defendants-Respondents.
____________________________________________
Argued September 12, 2017 – Decided September 21, 2017
Before Judges Yannotti, Carroll, and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
5019-15.
Lewis Goldshore argued the cause for
appellants.
Patrick J. Bradshaw argued the cause for
respondent Township of Edison Zoning Board of
Adjustment (Kelso and Bradshaw, attorneys; Mr.
Bradshaw, on the brief).
Jeffrey B. Lehrer argued the cause for
respondent Donna Seredy (DiFrancesco,
Bateman, Kunzman, Davis, Lehrer & Flaum, PC,
attorneys; Mr. Lehrer, of counsel and on the
brief; Susan F. Bateman, on the brief).
McManimon Scotland & Baumann, attorneys for
respondent Township of Edison, join in the
brief of respondent Township of Edison Zoning
Board of Adjustment.
PER CURIAM
Plaintiffs Joseph Bartonek (Bartonek), Joseph Bartonek, LLC,
and Barton Nursery Enterprises, Inc. appeal from a final judgment
entered by the Law Division on January 4, 2016, granting summary
judgment in favor of defendants Township of Edison (Township),
Township of Edison Board of Adjustment (Board), and Donna Seredy,
d/b/a Pretty Paws Professional Pet Grooming (Seredy). We affirm.
I.
We briefly summarize the salient facts. Seredy is the owner
of property on New Durham Road in the Township, where she has been
residing for more than fifty years. Seredy's property is located
in the Township's light-industrial (L-I) zone, where single-family
uses and commercial pet-grooming facilities are not permitted. In
2013, Seredy inherited the property from her parents, who acquired
it in 1961 from Seredy's grandparents, subject to an easement to
and from New Durham Road, across her grandparents' property.
In 1972, Seredy's grandparents sold the adjoining property
to Bartonek, and the property that Seredy's parents owned remained
subject to the access rights that they had pursuant to the
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easement. Bartonek resides and operates his nursery business on
his property. Four driveways provide access to Bartonek's
property, including the shared driveway over the easement.
Bartonek's family members, his retail customers, and landscapers
use the driveways to access the nursery.
On January 21, 2014, Seredy filed an application with the
Board seeking a use variance, several bulk variances, and
preliminary and final site plan approval to construct a 1200-
square-foot, two-car garage adjacent to her home. The application
indicated that Seredy would use approximately one-half of the
space to operate her dog-grooming business.
Seredy had been operating her business off-site. She takes
customers by appointment only and limits her business hours during
the week. Seredy also proposed having her existing gravel driveway
paved and additional parking spaces created for her customers.
On April 4, 2014, Seredy published notice of her application
and provided the time and place of the hearing at which the Board
would consider the application. Seredy also mailed notice to all
property owners within 200 feet of the property, as required by
the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163.
On April 29, 2014, the Board conducted a hearing on the
application. At the hearing, Seredy presented testimony from
Gregory Oman, a licensed professional engineer, and Christine
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Mazarro-Cofone, a licensed professional planner. Plaintiffs
objected to the application. Lester Nebenzahl, a licensed
professional planner, testified for plaintiffs. The Board voted
to approve the application, and on May 27, 2014, adopted a
resolution memorializing its decision.
On July 2, 2014, plaintiffs filed an action in lieu of
prerogative writs in the Law Division, challenging the Board's
approval of the application. On February 20, 2015, the judge
entered an order remanding the matter to the Board so that the
parties could present additional evidence and the Board could
issue a new decision.
The Board conducted another hearing in the matter on April
28, 2015. Oman and Mazarro-Cofone presented further testimony for
Seredy, and Nebenzahl again testified for plaintiffs. The Board
voted to approve the application, and on August 18, 2015, adopted
a resolution memorializing its decision.
On August 24, 2015, plaintiffs filed another action in lieu
of prerogative writs in the Law Division. In counts one and two
of the complaint, plaintiffs sought a judgment invalidating the
Board's approval of the application. In count three, plaintiffs
sought relief with regard to an alleged impermissible increase in
use of the driveway that Seredy and plaintiffs shared.
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On December 17, 2015, the judge considered the matter and
determined that defendant's motion for summary judgment should be
granted. The judge found that the Board's approval of Seredy's
application was supported by the testimony and evidence presented
to the Board, and was consistent with the applicable law. The
judge entered an order dated January 4, 2016, which granted summary
judgment to defendants on counts one and two of the complaint. The
order noted that plaintiffs had voluntarily dismissed count three
of the complaint with prejudice. This appeal followed.
On appeal, plaintiffs argue: (1) they were denied due process
and fundamental fairness because Seredy's counsel erroneously
stated that a court previously had held Bartonek in contempt for
failing to maintain the shared driveway; (2) Seredy did not satisfy
the requirements for issuance of a use variance pursuant to
N.J.S.A. 40:55D-70(d)(1); (3) Seredy's proposal failed to satisfy
the requirements of N.J.S.A. 40:55D-70(d)(2); and (4) the Board
should not have considered whether the property was reasonably
adapted to a conforming use, and failed to consider whether the
property was capable of being developed for uses permitted in the
L-I zone.
II.
We turn first to plaintiffs' contention that they were denied
due process and fundamental fairness because at the hearing before
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the Board in 2014, Seredy's counsel asked Bartonek whether a court
had held him in contempt in 1987 for failing to comply with a
consent order regarding maintenance of the shared driveway.
Bartonek replied that he had not been held in contempt.
The court's order was produced, and Bartonek's attorney said
the order indicated that Bartonek had not been held in contempt.
Seredy's counsel agreed and stated that his question was only
intended to show that on a previous occasion, Bartonek failed to
maintain the shared driveway, and that a court order had been
required to ensure compliance. Bartonek then testified that since
the court proceedings in 1987, he has maintained the driveway. His
attorney also asserted that Bartonek had not received any
complaints from the Township regarding the easement since 1996.
After the attorneys finished questioning Bartonek, some
members of the Board posed questions, but they did not ask about
the 1987 court order. During the remand hearing in 2015, no one
mentioned the court order of 1987, and no one asserted that a
court had held Bartonek in contempt.
On appeal, plaintiffs argue that they were unfairly and
irreparably prejudiced and that they were denied their right to
due process by the questions raised at the 2014 hearing suggesting
that in 1987, a court had held Bartonek in contempt. Plaintiffs
note that the trial court's remand order allowed the Board to rely
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upon the record created at the first hearing. Plaintiffs contend
that Seredy's counsel should have explained to the Board at the
second hearing that Bartonek had never been held in contempt.
According to plaintiffs, Seredy's counsel proceeded with the
remand hearing as though nothing untoward had occurred at the
previous hearing.
The judge found that plaintiffs were not prejudiced by the
questions raised at the first hearing about the alleged contempt
finding. The judge noted that the Board did not make any negative
findings about Bartonek, and the Board had not determined that he
lacked credibility. The judge also pointed out that the allegation
that Bartonek had been held in contempt did not have a bearing
upon the Board's ultimate decision on Seredy's application, and
the record of both hearings showed that there was no evidence that
plaintiffs suffered any prejudice in this regard.
The record supports the judge's findings. As we have
explained, the allegation that a court in 1987 had held Bartonek
in contempt had been addressed and refuted at the first hearing.
The court's order made clear that there had been no contempt
finding, and Seredy's counsel conceded the point. There is nothing
in the record to show that the allegation played any role in the
Board's decision to approve the Seredy application.
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We therefore conclude that plaintiffs were not denied a fair
hearing or due process when Seredy's counsel confronted Bartonek
at the 2014 hearing with the allegation that he had been held in
contempt of court. Furthermore, there is nothing in the record to
show that the allegation had any impact upon the Board's decision
to grant Seredy's application, which would render that decision
arbitrary, capricious, or unreasonable.
III.
We next consider plaintiffs' contention that the trial court
erred by upholding the Board's decision. Plaintiffs argue that
Seredy did not satisfy the requirements for issuance of a use
variance pursuant to N.J.S.A. 40:55D-70(d)(1). Plaintiffs further
argue that Seredy did not meet the requirements under N.J.S.A.
40:55D-70(d)(2) for intensifying and expanding a nonconforming
use.
"[M]unicipalities are authorized to impose conditions on the
use of property through zoning by a 'delegation of the police
power' that must 'be exercised in strict conformity with the
delegating enactment – the MLUL.'" Price v. Himeji, LLC, 214 N.J.
263, 284 (2013) (quoting Nuckel v. Borough of Little Ferry Planning
Bd., 208 N.J. 95, 101 (2011)). "The MLUL exhibits a preference for
municipal land use planning by ordinance rather than by variance,
which is accomplished through the statute's requirements that use
8 A-2035-15T1
variances be supported by special reasons, and by proof of the
negative criteria." Ibid. (citations omitted).
Our courts have recognized that "because of their peculiar
knowledge of local conditions," zoning boards "must be allowed
wide latitude in the exercise of delegated discretion." Kramer v.
Bd. of Adjustment, 45 N.J. 268, 296 (1965). A "board's decisions
enjoy a presumption of validity, and a court may not substitute
its judgment for that of the board unless there has been a clear
abuse of discretion." Price, supra, 214 N.J. at 284 (citing Cell
S. of N.J. Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81
(2002). A party challenging that grant or denial of a variance
must "show that the zoning board's decision was 'arbitrary,
capricious, or unreasonable.'" Ibid. (quoting Kramer, supra, 45
N.J. at 296).
N.J.S.A. 40:55D-70(d) authorizes a zoning board, "[i]n
particular cases for special reasons, [to] grant a variance to
allow departure from regulations pursuant to [the MLUL] to permit:
(1) a use or principal structure in a district restricted against
such use or principal structure, [or] (2) an expansion of a
nonconforming use[.]" In addition, N.J.S.A. 40:55D-70 states that
a zoning board may not grant a variance unless the applicant shows
that it "can be granted without substantial detriment to the public
9 A-2035-15T1
good and will not substantially impair the intent and the purpose
of the zone plan and zoning ordinance."
A. Use Variance
Generally, a zoning board may find "special reasons" for the
issuance of a use variance:
(1) where the proposed use inherently serves
the public good, such as a school, hospital
or public housing facility; (2) where the
property owner would suffer "undue hardship"
if compelled to use the property in conformity
with the permitted uses in the zone; and (3)
where the use would serve the general welfare
because "the proposed site is particularly
suitable for the proposed use."
[Nuckel, supra, 208 N.J. at 102 (citations
omitted) (quoting Saddle Brook Realty, LLC v.
Twp. of Saddle Brook Zoning Bd. of Adjustment,
388 N.J. Super. 67, 76 (App. Div. 2006)).]
The showing required to satisfy the negative criteria "focuses on
the effect that granting the variance would have on the surrounding
properties[,] . . . [and] must reconcile the grant of the variance
for the specific project at the designated site with the
municipality's contrary determination about the permitted uses as
expressed through its zoning ordinance." Price, supra, 214 N.J.
at 286 (citations omitted).
Here, Seredy's proposed use did not involve an inherently
beneficial use, and in her application, she did not assert that
10 A-2035-15T1
she would suffer an "undue hardship" if she is required to use her
property in conformity with the permitted uses in the L-I zone.
Therefore, Seredy was required to show that the site of her
proposed use was "particularly suitable for the proposed use."
Nuckel, supra, 208 N.J. at 102 (quoting Saddle Brook Realty, supra,
388 N.J. Super. at 76).
At the first hearing, Mazzaro-Cofone testified that the
property was particularly suitable for Seredy's proposed use. She
explained that the size of the lot was undersized for the permitted
uses in the L-I zone, and that the permitted uses are much more
intensive than Seredy's proposed use for her dog-grooming
business. Mazzaro-Cofone noted that Seredy planned to operate her
business from a small facility. It would operate during a limited
number of hours, and have a limited number of daily customers.
Based upon this testimony, the Board concluded that the scope
of Seredy's proposed use would be "very small" and "akin to a home
occupational use." The Board granted Seredy's application for the
use variance, with certain conditions intended to ensure that
Seredy would maintain the limited use she had proposed.
Plaintiffs argue, however, that the trial court erred by
finding that Seredy had shown the property was particularly
suitable for the proposed use. They argue that Seredy failed to
show that the property was well-suited for its proposed use as a
11 A-2035-15T1
dog-grooming business. Plaintiffs contend that Mazzaro-Cofone did
not consider the "fact-specific and site-sensitive" limitations
of the lot.
Plaintiffs further assert that the property lacks qualities
that would make it particularly well-suited for commercial use,
such as visibility, accessibility, and proximity to other
commercial uses. They assert that Seredy's business could have
been located in several of the Township's other zones.
We are not persuaded by these arguments. We are convinced
that there is sufficient evidence in the record to support the
judge's finding that Seredy presented sufficient evidence to show
that the proposed use was particularly suitable for the site.
Plaintiffs' arguments on this issue lack sufficient merit to
warrant further comment. R. 2:11-3(e)(1)(E).
Plaintiffs also argue that the trial court erred by finding
that Seredy satisfied the negative criteria for issuance of the
use variance. Plaintiffs contend Mazzaro-Cofone failed to take
into account the alleged adverse impact the proposed use would
have on plaintiffs' property. They also contend that Mazzaro-
Cofone failed to consider the detrimental effect to the zone plan
and zoning ordinance that would result from devoting land in the
L-I zone to a use other than a light industrial use.
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As we noted previously, Seredy was required to demonstrate
to the Board that her variance application could be granted without
"substantial detriment to the public good," and that her proposed
use would not "substantially impair the intent and the purpose of
the zone plan and zoning ordinance." N.J.S.A. 40:55D-70. In doing
so, Seredy was required to focus on the effect that the proposed
use would have on the surrounding properties, and reconcile the
granting of her application for a variance with the Township's
"contrary determination" as to the permitted uses that are
permitted in the L-I zone. Price, supra, 214 N.J. at 286 (citing
Medici v. BPR Co., 107 N.J. 1, 21 (1987)).
At the hearings before the Board, Mazzaro-Cofone testified
that because Seredy's proposed use is limited in both size and
function, it would not have a substantial adverse impact on the
surrounding property. She explained that the only material impact
on plaintiffs' property would be increased activity on the shared
driveway. She explained, however, that this activity would be
limited since Seredy would be the only employee of the business,
and she limits the number of her daily customers.
Mazzaro-Cofone further explained that Seredy's proposed use
would be relatively less intense, when compared to plaintiffs'
current use and the uses permissible in the L-I zone. She noted
that the L-I zone allows manufacturing, processing, and other more
13 A-2035-15T1
intensive light-industrial uses. The uses in the L-1 zone would
be more disruptive and have a greater impact on the property and
the surrounding property than Seredy's dog-grooming business.
The Board found that Seredy's proposed use would result in
"minimal additional use [of the property] . . . on a limited
basis," and that this use would not be detrimental to the
Township's zoning plan and zoning ordinance. The Board found that
the grant of the variance could be reconciled with the zoning
ordinance because it would "permit a significantly less intense
use on [the] small property."
The trial court determined that the Board's decision was
supported by sufficient credible evidence in the record. We agree.
The record supports the Board's finding that Seredy established
the negative criteria for issuance of a use variance.
B. Variance to Expand Nonconforming Use
Plaintiffs argue that the Board, and later the trial court,
erred by finding that Seredy's preexisting nonconforming use would
not be intensified or expanded with the approval of her application
for variance relief. They argue that Seredy failed to meet the
requirements for relief under N.J.S.A. 40:55D-70(d)(2).
"A nonconforming use is 'a use or activity which was lawful
prior to the adoption, revision or amendment of a zoning ordinance,
but which fails to conform to the requirements of the zoning
14 A-2035-15T1
district in which it is located by reasons of such adoption,
revision or amendment.'" Nuckel, supra, 208 N.J. at 106 (quoting
N.J.S.A. 40:55D-5). "Under the MLUL, nonconforming uses 'may be
continued upon the lot or in the structure so occupied.'" Ibid.
(quoting N.J.S.A. 40:55D-68).
However, because noncomforming uses are incompatible with
uniform zoning, "the courts have required that consistent with the
property rights of those affected and with substantial justice,
they should be reduced to conformity as quickly as is compatible
with justice." Ibid. (quoting Belleville v. Parrillo's, Inc., 83
N.J. 309, 315 (1980)). Although "'[t]he method generally used to
limit nonconforming uses is to prevent any increase or change in
the nonconformity,' . . . nonconforming uses may lawfully be
enlarged by resorting to the variance procedure." Ibid. (quoting
Belleville, supra, 83 N.J. at 316).
In this case, the Board found that there was no expansion of
use in Seredy's house because there would be no change in the
structure or its use. Therefore, Seredy's use of her present
nonconforming structure would not be intensified or expanded.
Nevertheless, the Board conducted an analysis for issuance of a
variance pursuant to N.J.S.A. 40:55D-70(d)(2) and determined that
Seredy had provided sufficient evidence to justify both expansion
15 A-2035-15T1
of the existing nonconforming use and issuance of a use variance
for the proposed structure and dog-grooming business.
The judge determined there is sufficient credible evidence
to support the Board's decision allowing Seredy to expand the
existing nonconforming use of her property. The judge found that
the Board's decision was not arbitrary, capricious, or
unreasonable. The record supports the judge's findings.
Plaintiffs' arguments on this point lack sufficient merit to
warrant additional comment. R. 2:11-3(e)(1)(E).
Plaintiffs further argue that the trial court erred by
deciding that Seredy's application for expansion of the
nonconforming use was subsumed in the use-variance application.
As we have explained, N.J.S.A. 40:55D-70(d)(2) allows a zoning
board to issue a variance allowing the expansion of an existing
nonconforming use. However, as defendants note, the criteria for
issuance of the variances are substantially the same. In any event,
the record supports the Board's determination that Seredy met the
criteria for issuance of variances under both N.J.S.A. 40:55D-
70(d)(1) and (2).
IV.
Plaintiffs also contend that at the first hearing Seredy
sought a use variance on the ground that the property was
particularly suitable for use as a dog-grooming business. They
16 A-2035-15T1
note that she did not assert that a use variance should be issued
on the basis of undue hardship. Plaintiffs contend the Law Division
judge erred in the initial remand order by allowing Seredy to
present proofs based on the theory that the subject property could
not be reasonably adapted to any conforming use.
Plaintiffs assert that at the second hearing, Seredy
attempted to demonstrate that the property could not be reasonably
developed for a conforming use. They assert that in reviewing the
Board's final decision following the remand proceedings, the trial
court judge erred by stating that Seredy was not required to show
she was not capable of using her property for a permitted use.
We are convinced that plaintiffs' arguments on this point
lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
We note, however, that it is undisputed that Seredy did not seek
a variance on the ground that she would suffer an undue hardship
if the ordinance were strictly applied. As the trial court found,
Seredy established both the positive and negative criteria for the
grant of the use variance on other grounds.
Affirmed.
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