Posted by: Patricia Salkin | January 3, 2013

NJ Appellate Court Upholds Variance to Enable Seasonal Christmas Tree Business to Operate on Lot Housing Another Seasonal Use

In September 2010, R & R Trees LLC applied for use and bulk variances to operate a seasonal Christmas tree and wreath lot in an R-2 residential zone for six weeks during the holiday season. From April through October, the lot was home to a nonconforming use—a hot dog stand—with a fenced-in outdoor area 50 by 120 feet in size, which was to house the Christmas tree business. R & R did not propose creating any permanent structures to support the business, but did plan to erect temporary signage and lighting, as well as a sales booth. The property was located on a four-lane highway, near a number of other businesses, restaurants, and gas stations.

After a public hearing, which was not attended by any member of the public, the Fort Lee Zoning Board of Adjustment unanimously approved the application, subject to several conditions, including limitations on the dates and hours of operation, and signage. In October 2010, the Board formally adopted a written resolution approving the variance request, finding that use of the area for the Christmas tree business, since it was already used during the warmer months for the hot dog stand and generally left empty in the colder months, would not cause overuse of the property; that the contemplated business activities would not typically create significant sound or traffic disturbances, even at peak hours; and that the existing parking was sufficient to support the new business activity. In the balance of things, the Board felt R & R had submitted sufficient evidence that the variance was merited.

Metropolitan Plant Exchange, the plaintiff in this case, filed suit in New Jersey Superior Court seeking to have the Board’s decision overturned, asserting that R & R had failed to meet its burden of proof necessary to obtain the variance. In that case, the judge held that R & R had provided sufficient evidence to support the assertion that the Christmas tree business would advance the public interest and not substantially harm the public, and that the site was suited to the use given its existing seasonal uses. Further, the judge concluded that the balance of benefits to detriments weighed in favor of the Board’s grant of the variance, and that the Board had acted reasonably in so granting. The case was dismissed. Metropolitan here appeals.

On appeal, Metropolitan argued that there was insufficient evidence on the record to support the Board’s decision, rendering that decision arbitrary and capricious and necessitating revocation of the variance. Specifically, Metropolitan claimed R & R should have been required to show that there were no other viable locations for the sale of Christmas trees, or that the property’s unique shape or character made it particularly suited to this use, as required by Funeral Home Mgmt., Inc. v. Basralian, 319 N.J.Super. 200, 210 (N.J. App.Div. 1999). However, the Court disagreed.

The Court noted that the local law governing the request stipulated that a variance could be issued to an applicant if the variance was “without substantial detriment to the public good and [would] not substantially impair the intent and the purpose of the zone plan and zoning ordinance.” In order to meet their burden under this provision, R & R needed to show positive and negative criteria, and either that the use was inherently in the public interest, or else that other “special reasons” existed for granting it. Such special reasons include the promotion of public health and safety, the prevention of sprawl, the enhancement of the visual environment, or proof that the site was particularly suited to the proposed use. In this case, the Court declined to interpret Basralian so strictly, holding instead that the applicant was simply required to prove that the variance would promote the general welfare because the site it proposed to use was particularly suited to the contemplated use. Further, the Court held that the Board had thoroughly reviewed the positive and negative criteria associated with the proposal, and had concluded that the area, unused during the holiday season and already suited to similar uses, was particularly well suited to R & R’s proposed use, with little detriment to the surrounding community. The Court could find no basis on which to overturn either the Board’s determination that the benefits outweighed the detriments, nor any reason to overturn the lower court’s holding.

Metropolitan Plant Exchange Inc. v. R & R Trees LLC, 2012 WL 6554222 (N.J. App. Div. 12/17/12)

The opinion can be accessed at:


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