DR. AURORA BAIRAN VS. BOROUGH OF CLOSTER ZONING BOARD OF ADJUSTMENT(L-4268-14, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-3114-14T3

DR. AURORA BAIRAN,

Plaintiff-Respondent,

v.

BOROUGH OF CLOSTER ZONING
BOARD OF ADJUSTMENT,

Defendant-Appellant.

_____________________________________________

Argued October 26, 2016 – Decided November 21, 2017

Before Judges Fuentes, Simonelli and Gooden
Brown.

On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-4268-14.

Michael B. Kates argued the cause for
appellant (Kates Nussman Rapone Ellis & Farhi,
LLP, attorneys; Mr. Kates, of counsel and on
the brief).

Andrew S. Kohut argued the cause for
respondent (Wells, Jaworski & Liebman, LLP,
attorneys; Mr. Kohut, on the brief).

The opinion of the court was delivered by

GOODEN BROWN, J.A.D.
 Defendant Borough of Closter Zoning Board of Adjustment

(Board) appeals from a February 26, 2015 Law Division order, which

reversed the Board's denial of plaintiff Aurora Bairan's use

variance application for her property located on Harrington Avenue

in Closter. After reviewing the record and applicable legal

principles, we reverse.

I.

We glean the following facts from the record. The property

is a long, narrow lot, measuring forty feet in width and 224 feet

in depth. It contains three separate buildings located one behind

the other, designated as Building A, B, and C. Building A fronts

along Harrington Avenue and has two second-floor residential

units, a first-floor commercial storefront tenant facing the

street, and, in the rear, a first-floor 368 square foot residential

unit which is the subject of this appeal. Building B is set back

approximately three to four feet behind Building A and has two

residential units. Building C is a single-family dwelling located

in the rear of the property. In total, there are six residential

units and one commercial space on the property. Between Building

B and C is a paved area, which is used as a parking area for the

tenants.

Plaintiff has owned the property since 1985 and has

continuously used it in the same manner in which it had been used

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well before her ownership. On October 26, 2011, following an

investigation into various zoning deficiencies, the Borough's

Zoning Officer denied plaintiff's continued use of the property

in the same manner it had been used, and directed plaintiff to

file an application with the Board for relief. Pursuant to

N.J.S.A. 40:55D-70(a), plaintiff appealed the Zoning Officer's

decision to the Board and sought either confirmation that the

existing uses of multiple structures on one lot were legally

existing, nonconforming structures and uses pursuant to N.J.S.A.

40:55D-68, or, in the alternative, use and bulk variances pursuant

to N.J.S.A. 40:55D-70(d), sanctioning the existing uses and

structures as they had existed since at least 1985 when plaintiff

acquired the property.

On December 18, 2013, the Board voted to sanction the three

buildings and five of the six residential units on the ground that

they predated the Borough's 1940 zoning ordinance, and their

nonconforming status was therefore protected under N.J.S.A.

40:55D-68. The Board noted that the property is located in the

Borough's District No. 3 "Business Area[,]" which permits "one-

and two-family" residential dwellings "as well as retail

commercial uses." Although District No. 3 "clearly permits and

anticipates mixed commercial/residential buildings[,]" no "more

than two" residential units are permitted "in one building, with

3 A-3114-14T3
or without a commercial use as well." Therefore, the Board

concluded that while "[t]he one[-]family use" in Building C and

"[t]he two-family use" in Building B were "permitted[,]" Building

A was "non-conforming based on the presence of three [residential]

dwellings[,]" which is prohibited in that zone. Accordingly, as

to the 368 square foot first-floor residential unit in Building

A, the Board unanimously upheld the Zoning Officer and denied the

unit historical recognition because plaintiff was unable to

provide evidence of its pre-zoning existence.

The following month, plaintiff requested a use variance under

N.J.S.A. 40:55D-70(d)(1) to allow her to continue to use the unit

as the third residential unit in Building A and sixth residential

unit on the property. Plaintiff also sought a parking space

variance, allowing her to provide only seven parking spaces where

sixteen were required, and approval of an amended site plan for

improvements recommended by the Board.

At the January 15, 2014 hearing on the use variance, plaintiff

testified in support of her application along with two expert

witnesses, Michael Hubschman and Steve Lydon. There were no

objectors at the hearing. Plaintiff testified that during her

ownership of the property, the residential unit had been regularly

occupied without any complaints regarding nuisances, parking, or

ingress and egress of the property. Further, plaintiff received

4 A-3114-14T3
no inquiries about using the unit for commercial purposes and did

not believe the unit was a suitable space for commercial use given

its location.

Hubschman, a licensed civil engineer, opined that due to the

narrow passageway for vehicles to access the building, the unit

is better suited for residential purposes to avoid the additional

traffic attendant to commercial use. Hubschman acknowledged,

however, that there was a municipal parking lot approximately 100

feet from the property and street parking available. In addition,

after describing how the unit is separated from the rest of

Building A, Hubschman explained that combining the unit with the

existing commercial space was illogical because it could not be

done without removing and relocating the existing stairwell

leading to the second floor, or remodeling the existing foyer. He

admitted, however, that it was possible to have "two side-by-side

stores[.]" Much of Hubschman's rationale supporting the continued

residential use of the unit was predicated on the fact that the

unit had functioned in that capacity for over thirty years.

Lydon, plaintiff's second expert witness and a licensed

professional planner, opined that the residential use of the unit

was "a better fit[,]" and promoted Smart Growth principles by

providing affordable housing and opportunities to live near the

Borough's downtown and public transportation. According to Lydon,

5 A-3114-14T3
the "master plan" and the "land use plan" were reexamined in 2008,

"and the reexamination report recommend[ed] allowing residential

apartments over ground floor retail as an inducement to improve

and retenant ground floor retail spaces." Lydon acknowledged that

the current application does not "squarely meet the recommendation

of the master plan because it is a first floor residential space

. . . , not a second floor[.]" However, he believed that "the

overall intent of having mixed uses in downtown is furthered by

this application[,]" even if "not exactly as laid out by the

[B]orough."

Lydon disagreed with the Board Chairman that the "quality of

life" issues associated with a "first floor" apartment "on [M]ain

[S]treet[,]" including engine fumes, "traffic going by[,]"

"noise," "security concerns," and the elevated "density factor,"

were legitimate concerns. Lydon explained that although Building

A is "the only building that's readily visible from the street[,]"

the unit's location in the rear of Building A gives it no presence

along Harrington Avenue. According to Lydon, while the lack of

street presence is not suitable for commercial purposes, it is

ideal for residential use.

Lydon also testified that given the unit's proximity to the

five other residential units, using the unit as a residential

space was compatible with all of the other uses in the rear of the

6 A-3114-14T3
property. Lydon went on to say that converting the unit to

commercial space would most likely exacerbate internal traffic and

safety concerns, whereas the residential use limited the amount

of traffic generated. Lydon also agreed with Hubschman that,

"from a site layout perspective[,]" the unit could not be

reasonably adapted into a "commercial space[,]" and, given the

glut of commercial space available in the Borough, transforming

the unit into commercial space, with its significant physical

constraints, would not benefit the Borough. Lydon pointed to the

property's "very high occupancy rate" to "demonstrate[] a need for

this type of use, a small apartment, in this particular location."

Lydon opined that overcoming the physical limitations

inherent in the building to convert the space to commercial use

would cause "undue hardship, which is a basis under the Municipal

Land Use Law for the granting of a use [variance] application[.]"

Lydon concluded that allowing another residential unit would have

little to no impact on the neighborhood given its compatibility

with the surrounding area, particularly since residential uses are

already permitted in the zone, the property was developed long

before the adoption of the Borough's Zoning Ordinance or Master

Plan, and residential use "work[ed] well" for the last thirty

years.

7 A-3114-14T3
 Following the hearing, the use variance failed to achieve the

super-majority of five votes mandated by N.J.S.A. 40:55D-70(d).

The vote was four in favor of granting the use variance and three

against. Because the use variance was denied, the Board did not

vote on the parking space variance or the amended site plan. The

memorializing resolution, adopted on April 16, 2014, identified

the exhibits, summarized some of the testimony, and recited the

applicable law. The resolution acknowledged that plaintiff

proffered proofs through Lydon's testimony that her "application

advances the promotion of the general welfare by providing

sufficient space in appropriate locations for a variety of uses,

including residential and commercial[.]" However, the resolution

indicated the Board could not "conclude[] that [plaintiff] would

face 'undue hardship'" if it "disallowed" the ground floor

residential unit in Building A. On the contrary, because Building

A had "none of the[] deficiencies" present in Buildings B and C

that would preclude commercial use, it could "accommodate a

conforming commercial use[,]" and "it is on this basis that three

Board members opposed a ground floor residential use" in Building

A.

On May 6, 2014, plaintiff filed a complaint in lieu of

prerogative writs in the Law Division challenging the Board's

denial. The trial court conducted a bench trial on the record

8 A-3114-14T3
below on December 8, 2014. On February 10, 2015, the court issued

a written decision reversing the Board's denial of the use variance

and entering judgment in favor of plaintiff. The court concluded

that "the Board ha[d] not based its conclusions in the Resolution

on evidence in the record." The court explained:

In the instant matter, the court finds
the Planning Board acted in an arbitrary,
capricious and unreasonable manner regarding
the [a]pplication. Further, plaintiff has met
her burden under N.J.S.A. 40:55D-70.
Plaintiff has demonstrated that she would
suffer an undue hardship if she is compelled
to make the unit suitable for commercial use.
Also, the site is particularly suitable for
residential use. The unit is not visible from
the street[,] and residential use is
compatible with other uses in the rear of the
[p]roperty.

Additionally, plaintiff has proven that
residential use of the unit does not create a
substantial detriment to the public good, and
the intent and purpose of the zone plan and
zoning ordinance will not be substantially
impaired. There are no objecting neighbors
or community members, and residential use is
consistent with surrounding property use.
Further, defendant has not presented any
compelling evidence as to why a variance
should not be granted in this instance. The
unit has been utilized as an apartment for
over thirty years, and it has not interfered
with the nature or intent of the zoning
ordinance or plan. No evidence has been
presented by defendant proving a deleterious
effect on the community. Furthermore, no
evidence has been presented to support the
findings made in the resolution. The decision
of the Board must be based on evidence before
it. Such was not done here.

9 A-3114-14T3
The court entered a memorializing order on February 26, 2015, and

this appeal followed.

II.

On appeal, the Board raises the following points1 for our

consideration:

POINT I

DUE DEFERENCE WAS NOT PAID TO THE BOARD.

POINT II

ON THE SINGULAR VOTE IN ISSUE, PLAINTIFF DID
NOT MEET THE STATUTORY CRITERIA UNDER N.J.S.A.
40:55D-70(d)(1).

POINT III

THE TESTIMONY OF PLAINTIFF'S EXPERT WITNESSES
CONCERNING THE PROHIBITIVE COST OF CONVERTING
FROM RESIDENTIAL TO COMMERCIAL USE WERE[] "NET
OPINIONS" AND THUS COULD BE IGNORED.

We begin with the standard of review. We apply the same

limited standard of review as the trial court when reviewing a

zoning board's decision to grant or deny a variance. Bressman v.

Gash, 131 N.J. 517, 529 (1993); D. Lobi Enters., Inc. v.

Planning/Zoning Bd. of Borough of Sea Bright, 408 N.J. Super. 345,

360 (App. Div. 2009). As such, "when a party challenges a zoning

board's decision through an action in lieu of prerogative writs,

1
We have condensed the points raised by defendant for clarity.

10 A-3114-14T3
the zoning board's decision is entitled to deference." Kane

Props., LLC v. City of Hoboken, 214 N.J. 199, 229 (2013). "Its

factual determinations are presumed to be valid[,] and its decision

to grant or deny relief is only overturned if it is arbitrary,

capricious or unreasonable." Ibid. (citing Burbridge v. Twp. of

Mine Hill, 117 N.J. 376, 385 (1990)).

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 v. Himeji,

LLC, 214 N.J. 263, 284 (2013) (citing Cell S. of N.J., Inc. v.

Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002)). "[Z]oning

boards, 'because of their peculiar knowledge of local

conditions[,] must be allowed wide latitude in the exercise of

delegated discretion.'" Ibid. (quoting Kramer v. Bd. of

Adjustment, 45 N.J. 268, 296 (1965)). To that end, we extend even

greater deference to a zoning board's decision to deny a variance

in preservation of a zoning plan than to a decision to grant a

variance. Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd.

of Adjustment, 361 N.J. Super. 22, 38 (App. Div. 2003). However,

where the issue on appeal involves a purely legal question, this

court affords no special deference to the trial court's or zoning

board's decision, and instead must determine if the board

11 A-3114-14T3
understood and applied the law correctly. See D. Lobi Enters.,

supra, 408 N.J. Super. at 351-52.

Under N.J.S.A. 40:55D-70(d)(1):

The board of adjustment shall have the power
to:

. . . .

In particular cases for special reasons, grant
a variance to allow departure from . . . this
act to permit: (1) a use or principal
structure in a district restricted against
such use or principal structure . . . . A
variance under this subsection shall be
granted only by affirmative vote of at least
five members, in the case of a municipal
board[.]

Where a zoning board has denied a variance, the applicant must

prove that the evidence before the board was "overwhelmingly in

favor of the applicant." Nextel, supra, 361 N.J. Super. at 38

(quoting Ne. Towers, Inc. v. Zoning Bd. of Adjustment, 327 N.J.

Super. 476, 494 (App. Div. 2000)). "As is evident, the burden on

a variance applicant is not insignificant[,]" Nuckel v. Borough

of Little Ferry Planning Bd., 208 N.J. 95, 102 (2011), "because

the grant of a use variance always represents an exception to the

generally applicable zoning scheme[.]" Price, supra, 214 N.J. at

286.

An applicant seeking a use variance must demonstrate "special

reasons" — commonly referred to as the positive criteria — why the

12 A-3114-14T3
variance should be granted. N.J.S.A. 40:55D-70(d)(1). "Special

reasons" are those that promote the general purposes of zoning,

enumerated in N.J.S.A. 40:55D-2. Burbridge, supra, 117 N.J. at

386 (citing Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 276 (1967)).

"Special reasons" generally fall into one of three categories:

(1) [W]here the proposed use inherently serves
the public good, such as a school, hospital
or public housing facility, see [Sica v. Bd.
of Adjustment of Wall, 127 N.J. 152, 159-60
(1992)]; (2) where the property owner would
suffer "undue hardship" if compelled to use
the property in conformity with the permitted
uses in the zone, see Medici v. BPR Co., 107
N.J. 1, 17 n.9 (1987); and (3) where the use
would serve the general welfare because "the
proposed site is particularly suitable for the
proposed use." [Smart SMR of N.Y., Inc. v.
Borough of Fair Lawn Bd. of Adjustment, 152
N.J. 309, 323 (1998).]

[Saddle Brook Realty, LLC v. Twp. of Saddle
Brook Zoning Bd. of Adjustment, 388 N.J.
Super. 67, 76 (App. Div. 2006).]

An applicant for a use variance must also satisfy what are

known as the "negative criteria." Specifically, an applicant must

show that the variance "can be granted without substantial

detriment to the public good," and that "the variance 'will not

substantially impair the intent and the purpose of the zone plan

and zoning ordinance.'" Price, supra, 214 N.J. at 286 (quoting

N.J.S.A. 40:55D-70). "The showing required to satisfy the first

of the negative criteria focuses on the effect that granting the

13 A-3114-14T3
variance would have on the surrounding properties." Ibid. (citing

Medici, supra, 107 N.J. at 22 n.12). "The proof required for the

second of the negative criteria 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." Ibid. (citing Medici,

supra, 107 N.J. at 21). This requires, "in addition to proof of

special reasons, an enhanced quality of proof and clear and

specific findings by the board of adjustment that the variance

sought is not inconsistent with the intent and purpose of the

master plan and zoning ordinance." Medici, supra, 107 N.J. at 21.

A zoning board "acts as a quasi-judicial body. As such, it

is called upon to become involved in a weighing process, much like

a court, before determining whether the positive and/or negative

criteria have been met." Price Co. v. Zoning Bd. of Adjustment

of Twp. of Union, 279 N.J. Super. 207, 209 (App. Div. 1994).

Here, defendant argues the court erred in concluding that the

Board's "denial was arbitrary, capricious or unreasonable" and

"unsupported in the record." We agree. The minority Board members

opposed the variance because plaintiff failed to satisfy the

affirmative criteria, specifically, undue hardship and site

suitability. The Board members rejected plaintiff's assertion

that overcoming the physical limitations inherent in the building

14 A-3114-14T3
by relocating the stairwell or remodeling the foyer would cause

undue hardship. That determination was supported by Hubschman's

acknowledgement that it was possible to have "two side-by-side

stores[.]" Proof of undue hardship requires proof "that the

property is not reasonably adapted to a conforming use[.]" Medici,

supra, 107 N.J. at 17 n.9. Plaintiff failed to make the requisite

showing here.

Likewise, the Board members concluded that Building A was

particularly well-fitted for an additional commercial, rather than

residential, unit because it had none of the "deficiencies" present

in Buildings B and C. According to Lydon, the fact that Buildings

B and C were not visible from the street and had limited parking

and vehicular access made those buildings particularly unsuitable

for non-residential uses. In contrast, Building A had none of

those deficiencies, making it suitable for non-residential use.

While "almost all lawful uses of property can be said to promote

the general welfare to some degree, . . . any application for a

use variance based on the particularly suitable standard has always

called for an analysis that is inherently site-specific." Price,

supra, 214 N.J. at 288.

Although the availability of alternative
locations is relevant to the analysis,
demonstrating that a property is particularly
suitable for a use does not require proof that
there is no other potential location for the

15 A-3114-14T3
 use[,] nor does it demand evidence that the
project "must" be built in a particular
location. Rather, it is an inquiry into
whether the property is particularly suited
for the proposed purpose, in the sense that
it is especially well-suited for the use, in
spite of the fact that the use is not permitted
in the zone.

[Id. at 292-93.]

Here, plaintiff's proofs fell short of meeting that test, and the

record supports the Board's rationale.

In short, plaintiff failed to show the necessary positive

criteria and failed to overcome the presumption of validity

afforded the Board's decision. We find adequate support in the

record for the Board's conclusions and no support for the court's

determination that the Board's decision was arbitrary, capricious,

or unreasonable. Accordingly, we reverse the Law Division order

and reinstate the Board's resolution denying the use variance. In

light of our conclusion, we need not reach the Board's remaining

contentions that the court erroneously shifted the burden of proof

to defendant and that the Board was not required to accept the net

opinions offered by plaintiff's experts.

Reversed.

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