NJ Appeals Court Upholds Granting of Variance to Church to Lease a Portion of its Parking Lot to Off-Site Automobile Dealership

Presbyterian Church of Toms River submitted an application for a use variance to the Township of Toms River Zoning Board of Adjustment so that it could lease part of its parking lot to an off-site automobile dealership for the storage or parking of its automobiles. Carr, a resident of the Township and President of the Township’s Council, opposed the application, alleging the Church was required to present proof of “special reasons, proof of hardship or something of the planning nature” in order to obtain the variance. The Board granted the Church’s application, and the plaintiffs filed an action in lieu of prerogative writs in the Law Division challenging the Board’s action on various grounds. The trial court affirmed the Board’s action, and Carr appealed.
On appeal, Carr first argued that the Board did not have authority under the Municipal Land Use Law (MLUL) to adjourn the matter and continue the vote at the September 10, 2015 meeting, so that another eligible member could vote on the application. Here, the record indicated that after five of six members voted at the September 10, 2015 meeting, the sixth member unexpectedly abstained from voting due to a perceived conflict of interest. Thus, the Church’s application only garnered four affirmative votes, which was one short of the five votes required by N.J.S.A. 40:55D-70(d) for a use variance. The trial court judge found that the Board acted in good faith to preserve the integrity of the hearing process and that such action was “clearly within” the Board’s discretion. Furthermore, there was no provision of the MLUL that precluded the Board from taking this course of action. As such, the court found that the Board’s action was not arbitrary, capricious, or unreasonable.
Carr next contended that the Board’s action in granting the use variance to the Church was arbitrary, capricious, unreasonable, and unsupported by the record. Specifically, Carr argued that the Church failed to establish special reasons for the grant of the variance and the trial court erred by affirming the Board’s action. The court agreed that the proposed use of a portion of the Church’s parking lot did not meet the generally accepted view of an inherently beneficial use, and was not ancillary to the Church’s use of the property for church-related purposes. Despite this, the court found that the Church established “special reasons” for the variance by showing that the under-utilized section of its parking lot was “particularly suitable for the proposed use.” Additionally, the Board imposed conditions in its resolution that were intended to ensure that the proposed use had a minimal impact on the surrounding properties. Moreover, since the proposed use was not substantially different from the present allowed use of the property, no expert testimony was required. As the proposed use was indistinguishable from its present use, and the record indicated that the variance could be granted without any substantial detriment to the zoning ordinance or the zone plan, the trial court’s decision was affirmed.

Collins v Presbyterian Church of Tons River, 2018 WL 481780 (NJ App. 1/17/2018)

This post was authored by Matthew Loeser, Esq.