TSI East Brunswick, LLC v. Zoning Board

71 A.3d 762, 215 N.J. 26, 2013 WL 3802499, 2013 N.J. LEXIS 739
CourtSupreme Court of New Jersey
DecidedJuly 23, 2013
StatusPublished
Cited by9 cases

This text of 71 A.3d 762 (TSI East Brunswick, LLC v. Zoning Board) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
TSI East Brunswick, LLC v. Zoning Board, 71 A.3d 762, 215 N.J. 26, 2013 WL 3802499, 2013 N.J. LEXIS 739 (N.J. 2013).

Opinion

Justice HOENS

delivered the opinion of the Court.

In this appeal we address a single, precisely drawn question that arises only in the context of applications made pursuant to [29]*29the Municipal Land Use Law (MLUL), N.J.S.A 40:55D-1 to -163, for conditional use variances. That question is whether, in considering an application for a conditional use variance, N.J.S.A. 40:55D-70(d)(3), the applicant must prove the negative criteria, see N.J.S.A. 4Q:55D-70, by an enhanced quality of proofs.

I.

The facts that are relevant to our analysis of the issue before us in this appeal are not in dispute. Defendant New Vornado/Saddle Brook, LLC (New Vornado) owns a large tract of land in East Brunswick. The property fronts on Route 18 South, which is a six-lane divided highway, and is located in East Brunswick’s HC-2 (General Highway Commercial District) zone. The site is improved with a large shopping center that includes a home improvement store, a variety of retail establishments, and one vacant freestanding building, which New Vornado sought to convert into an LA Fitness health club.

The East Brunswick zoning ordinance permits non-profit health club facilities in the HC-2 zone, see East Brunswick, N.J., Code 228-176(H), but treats a health club facility that is operated for profit as a conditional use in the same zone, see East Brunswick, N.J., Code 228-176.1(D). As a result, because the LA Fitness facility would be operated for profit, it was required to comply with the relevant conditions established in the zoning ordinance. Central to the dispute before this Court is the condition imposed by the ordinance that prohibits such a facility from being located within 500 feet of any residence or residential zone. East Brunswick, N.J., Code 228-176.1(D)(l).

New Vornado’s property is surrounded by commercial, warehouse, industrial, and office complexes. However, on the other side of Route 18, and behind other existing commercial buildings, there is a trailer park and a small residential neighborhood of approximately eight units. Because of where the vacant building proposed for the LA Fitness facility is placed on New Vornado’s large tract of land, it is approximately 1,200 feet from the closest [30]*30of these residential units. However, when measured from the edge of the tract, as required by the zoning ordinance, see ibid. (specifying that measurement shall be made from “nearest boundary line of the lot on which the proposed use is to be located”), one or more of the residential units is within 500 feet of New Vornado’s property. As a result, New Vornado filed an application seeking a conditional use variance to enable it to open the LA Fitness facility in spite of its failure to comply with the 500-foot distance requirement.

Plaintiff TSI East Brunswick, LLC (TSI) is the owner and operator of a New York Sports Club, a for-profit health club that is located in a shopping center across Route 18 from New Vornado’s property. Plaintiffs property is also located in the HC-2 zone and its New York Sports Club facility is within 500 feet of a residential zone. That facility was built after plaintiff succeeded in securing a conditional use variance from the East Brunswick Zoning Board. Plaintiff was the principal objector to New Vornado’s application for a conditional use variance. See N.J.S.A. 40:55D-70(d)(3).

The Zoning Board heard New Vornado’s application over the course of three days, during which the applicant presented testimony of four witnesses, the most important of whom, for purposes of this appeal, was a professional planner. The planner testified about the location and layout of the New Vornado property and the placement within that site of the building that New Vornado proposed to convert for use as the LA Fitness facility. He observed that the applicant could have avoided the need for a conditional use variance had it subdivided the property to carve out the proposed LA Fitness building. As he explained, that approach would have created a separate lot that would have been in excess of 500 feet from any residence, thus making it a completely conforming conditional use.

The planner also testified that there would be “essentially no substantial negative” impacts on the residences within the 500-foot radius of the property. He based that opinion on several [31]*31considerations. He first explained that the fitness facility itself is well in excess of the 500-foot limit imposed by the ordinance. He also observed that Route 18 serves as a barrier between the facility and the residences, pointing out that, in planning terms, the roadway independently creates major impacts on those residences. He further testified that, in contrast to the other recreational for-profit conditional uses listed in the ordinance, such as movie theaters, skating rinks, and bowling alleys, the LA Fitness facility would be a less intense, lower-activity use.

In further support of his opinion that the variance should be granted, the planner pointed to the New York Sports Club, which he described as providing him with a “laboratory example” of the insignificant impact that the proposed facility would have on any of the residences. He pointed out that the New York Sports Club is within 500 feet of 180 residences, is accessed by a road that runs through the residential neighborhood, and is not separated from any of them by Route 18, the roadway that would buffer the residential area from the proposed LA Fitness facility. The planner reasoned that, although the New York Sports Club is far closer to residences and would, therefore, be expected to have a more immediate impact on them, it did not appear to have had any adverse effect on the residential uses.

Relying on his understanding of the standards to be applied to an application for a conditional use variance, the planner focused on the negative criteria. See Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 297-98, 650 A.2d 340 (1994) (identifying standards to apply to evaluation of application for (d)(3) conditional use variance). He opined that, in evaluating the negative criteria, the enhanced quality of proofs ordinarily demanded for a use variance, see Medici v. BPR Co., 107 N.J. 1, 4, 526 A.2d 109 (1987), did not apply. In his evaluation of the first prong of the negative criteria, the planner considered “all the traditional land use impacts [on other properties] in terms of traffic, light and air, [and] noise,” and concluded that the proposed [32]*32LA Fitness facility “would not have any impact whatsoever on those few residential uses” within the 500-foot radius of the tract.

In addressing the second prong of the negative criteria, the planner examined the municipality’s master plan and zoning ordinance. He testified that “the land use plan essentially zones both sides of Route 18 as a highway commercial designation and, according to [the] master plan, it was to be responsive to the Route 18 regional economy.” The master plan, in his opinion, “recognized that Route 18 is a major road, draws from a large area[,] ... [and that the] highway commercial zone [anticipated] high density uses.” Comparing the permitted uses, which include “department stores, retail offices, services, governmental buildings ...

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71 A.3d 762, 215 N.J. 26, 2013 WL 3802499, 2013 N.J. LEXIS 739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tsi-east-brunswick-llc-v-zoning-board-nj-2013.