PL SQUARED, LLC VS. ZONING BOARD OF ADJUSTMENT OF THETOWNSHIP OF HOPEWELL(L-2800-15, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-5104-15T3

PL SQUARED, LLC,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT OF
THE TOWNSHIP OF HOPEWELL, a
Municipal Corporation of the
State of New Jersey,

Defendant-Respondent.
______________________________

Argued telephonically September 26, 2017 –
Decided October 5, 2017

Before Judges Fasciale and Moynihan.

On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-
2800-15.

Eric Goldberg argued the cause for appellant
(Stark & Stark, attorneys; Mr. Goldberg and
Gene Markin, of counsel and on the briefs).

Kevin A. Van Hise argued the cause for
respondent (Mason, Griffin & Pierson, P.,
attorneys; Cory K. Kestner, of counsel and on
the brief).

PER CURIAM
 In this action in lieu of prerogative writs, plaintiff PL

Squared, LLC appeals from a June 21, 2016 order upholding a

resolution by defendant Zoning Board of Adjustment of the Township

of Hopewell (the Board) denying plaintiff's application seeking a

N.J.S.A. 40:55D-70(d)(1) use variance and various N.J.S.A. 40:55D-

70(c)(1) bulk variances. There exists substantial credible

evidence in the record to support the Board's findings, there is

no clear abuse of discretion, and the decision is not arbitrary,

capricious, or unreasonable. We therefore affirm.

Plaintiff owns a single-family dwelling (the property)

located in a Mountain Resource Conservation Zoning District (MRC).

Plaintiff intended to develop the property as a convenience store

and gas station. As part of that proposed development, plaintiff

applied to the Board for the use variance, and requested other

variance relief from certain bulk requirements.

The Board conducted hearings on several days, took testimony

from witnesses, and reviewed documents admitted into evidence. In

denying the applications, the Board concluded that plaintiff

failed to demonstrate the site was suited for the proposed uses.

The Board also found that granting the variances conflicted with

the town's master plan, and contravened an applicable ordinance,

which precluded multiple uses for lots located in the MRC District.

Plaintiff then filed this complaint.

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 On appeal, plaintiff argues that the Board's denial of the

use variance was arbitrary, capricious, and unreasonable.

Plaintiff contends there is insufficient evidence in the record

to support the Board's denial of the use variance. Plaintiff

maintains that the Board, and the judge, failed to appreciate that

denying the variances would result in "economic inutility," which

plaintiff contends constitutes "special reasons" to issue the use

variance.

Our standard of review is well settled. "In evaluating a

challenge to the grant or denial of a variance, the burden is on

the challenging party to show that the zoning board's decision was

'arbitrary, capricious, or unreasonable.'" Price v. Himeji, LLC,

214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adjustment, 45

N.J. 268, 296 (1965)). "[Z]oning boards, 'because of their

peculiar knowledge of local conditions[,] must be allowed wide

latitude in the exercise of delegated discretion.'" Ibid. (second

alteration in original) (quoting Kramer, supra, 45 N.J. at 296).

Therefore, a zoning board's decision "enjoy[s] a presumption of

validity, and a court may not substitute its judgment for that of

the [zoning] board unless there has been a clear abuse of

discretion." Ibid. (citing Cell S. of N.J., Inc. v. Zoning Bd.

of Adjustment, 172 N.J. 75, 81 (2002)).

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 The level of deference given to a zoning board's decision to

grant a variance is less than the level of deference given for 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) (citing Funeral Home Mgmt., Inc. v. Basralian, 319 N.J.

Super. 200, 208 (App. Div. 1999)). Nevertheless, a zoning board

must base its decision on substantial evidence in the record. Cell

S. of N.J., Inc., supra, 172 N.J. at 89. We review any issue of

law de novo. Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405

N.J. Super. 189, 197 (App. Div. 2009).

We begin by addressing plaintiff's use variance application.

Applicants seeking a use variance pursuant to N.J.S.A. 40:55D-

70(d)(1) must show positive and negative criteria. Medici v. BPR

Co., 107 N.J. 1 (1987). The legal principles associated with

these terms are well settled.

As to the positive criteria, plaintiff must show "special

reasons." N.J.S.A. 40:55D-70(d). Such an obligation may be

established when (1) "'the proposed use inherently serves the

public good'"; (2) "'the property owner would suffer "undue

hardship" if compelled to use the property in conformity with the

[zoning ordinance]'"; or (3) "'the use would serve the general

welfare because the . . . site is particularly suitable for the

proposed use.'" Nuckel v. Borough of Little Ferry Planning Bd.,

4 A-5104-15T3
208 N.J. 95, 102 (2011) (quoting Saddle Brook Realty, LLC, supra,

388 N.J. Super. at 76). "[P]eculiar suitability special reasons

exist 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."

Basralian, supra, 319 N.J. Super. at 210. Plaintiff focuses on

the second and third categories.

Economic inutility of a parcel of land, resulting from the

parcel not being reasonably adapted to a conforming use, is

recognized as an undue hardship, and thus, can constitute grounds

for a variance. Medici, supra, 107 N.J. at 17 n.9. Plaintiff

reiterates its assertion that the property has "declining

suitability for residential use." The record demonstrates,

however, that the dominating uses in the surrounding area of the

property are residential and open space. Moreover, the New Jersey

Department of Environmental Protection (NJDEP) owns property

immediately behind and around the property, which the NJDEP uses

for open space. Finally, property uses on Route 518 and Route 31

are predominantly residential or abandoned commercial uses.

Consequently, we agree with the judge that there is no credible

basis in the record to conclude that the purported economic

inutility amounts to a special reason constituting undue hardship.

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 As to the negative criteria, plaintiff must show "that the

variance 'can be granted without substantial detriment to the

public good' and that it 'will not substantially impair'" the

zoning regulations. Price, supra, 214 N.J. at 286 (2013) (quoting

N.J.S.A. 40:55D-70). The first element "focuses on the effect

that granting the variance would have on the surrounding

properties." Ibid. (citing Medici, supra, 107 N.J. at 22 n.12).

The second requires proof "reconcil[ing] 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). An "enhanced quality of proof" is

required, "as well as clear and specific findings . . . that the

grant of a use variance is not inconsistent with the intent and

purpose of the master plan and zoning ordinance." Medici, supra,

107 N.J. at 4.

There is sufficient credible evidence in the record to support

the Board's findings that plaintiff failed to satisfy its burden,

especially as to the negative criteria. The findings include the

manner in which granting the variances would contradict the town's

master plan and contravene the local ordinance.

[S]ince adoption of the 2002 Township Master
Plan and subsequent Master Plan Re-
Examinations, the Township has continued to

6 A-5104-15T3
 maintain a commitment to limit and discourage
highway dependent commercial uses where such
uses do not already exist. Thus, the Township
has specifically provided for, by zoning,
specific commercial corridors in the Township.
The subject property is not within such an
area. The Board finds that the proposed use
would be appropriately located in a commercial
corridor, [rather than] the subject
property[,] where such highway[-]dependent
businesses have been specifically precluded.
Moreover, the Board notes that the subject
property had previously been zoned for
commercial use, but was specifically rezoned
to low density residential as part of the MRC
zoning enactment following the 2002 Master
Plan reexamination. Therefore, the Board
remains concerned that granting the variances
requested here would be an impermissible
usurpation of the governing body's exclusive
power to zone, and would be directly contrary
to the intent and purpose of the Master Plan
and zoning ordinance.

In light of these factors, the Board finds
that [plaintiff] has not sustained its burden
of satisfying the positive and negative
criteria necessary for obtaining the requested
variances, or that the application is in
compliance with the applicable standards set
by the MLUL and [ordinances].

For these reasons, the Board finds that there
will be a substantial detriment to the public
good and there will be substantial detriment
to the zone plan and zoning ordinance if the
requested relief were granted. Furthermore,
the Board's granting of the requested
variances would in fact impair and impede the
goals of the Township Master Plan and
[ordinances].

We see no reason to disturb these findings.

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 Although plaintiff focuses primarily on the denial of its use

variance application, the Board also denied plaintiff's

application for various bulk variances. N.J.S.A. 40:55D-70(c),

which generally authorizes the Board to grant bulk variances,

provides in part:

(1) Where: (a) by reason of exceptional
narrowness, shallowness or shape of a specific
piece of property, or (b) by reason of
exceptional topographic conditions or
physical features uniquely affecting a
specific piece of property, or (c) by reason
of an extraordinary and exceptional situation
uniquely affecting a specific piece of
property or the structures lawfully existing
thereon, the strict application of any
regulation pursuant to article 8 of this act
would result in peculiar and exceptional
practical difficulties to, or exceptional and
undue hardship upon, the developer of such
property, [the board of adjustment shall have
the power to] grant, upon an application or
an appeal relating to such property, a
variance from such strict application of such
regulation so as to relieve such difficulties
or hardship[.]

In addition, an applicant must establish the aforementioned

negative criteria. N.J.S.A. 40:55D-70(d). There are sufficient

facts in the record to support the Board's findings that plaintiff

failed to do so.

We therefore conclude that plaintiff failed to show that the

Board's decision was arbitrary, capricious, or unreasonable. The

Board followed the applicable law, based its decision on

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substantial evidence in the record, and correctly denied the

applications. Applying the wide latitude to zoning boards in the

exercise of their delegated discretion, and seeing no abuse of

discretion here, we decline to substitute our judgment for that

of the Board's.

Affirmed.

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