JOSEPH BARTONEK VS. TOWNSHIP OF EDISON(L-5019-15, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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

6 A-2035-15T1
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.

12 A-2035-15T1
 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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