DR. AURORA BAIRAN VS. BOROUGH OF CLOSTER ZONING BOARD OF ADJUSTMENT(L-4268-14, BERGEN COUNTY AND STATEWIDE)
A-3114-14T3
| N.J. Super. Ct. App. Div. | Nov 21, 2017Background
- Property owned by Bairan since 1985: long, narrow lot with three buildings (A front, B middle, C rear) containing six residential units and one commercial storefront; the disputed unit is a 368 sq ft first-floor apartment in Building A.
- Borough zoning permits one- and two-family dwellings in the Business Area; Building A contains three residential units, so the zoning officer directed Bairan to seek Board relief for the ground-floor unit.
- Board recognized historical nonconforming status for Buildings B and C and five residential units, but unanimously denied historical recognition for the 368 sq ft unit in Building A and upheld the zoning officer.
- Bairan applied for a use variance (N.J.S.A. 40:55D-70(d)(1)) to legalize the unit, and a parking variance; hearings included testimony from a civil engineer and a planner asserting undue hardship and site suitability for residential use; no objectors testified.
- The Board denied the use variance by a 4–3 vote (failing to reach the five-member supermajority required for a use variance); Law Division reversed the Board, finding the denial arbitrary and capricious and that Bairan met positive and negative criteria.
- Appellate Division reversed the Law Division, reinstating the Board's denial on the ground that the record supported the Board's findings that Bairan failed to prove undue hardship and site-specific suitability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review / deference to board | Trial court should overturn Board as its resolution lacked evidentiary support | Board: decisions entitled to deference; reversal only if arbitrary, capricious or unreasonable | Appellate court: apply usual deference; Board's denial supported by record; Law Division erred in substituting its judgment |
| Positive criteria — undue hardship (property not reasonably adapted to conforming use) | Bairan: physical constraints and cost to convert to commercial (stairwell/foyer) create undue hardship | Board: Building A lacks the physical deficiencies of B & C and can accommodate commercial use; expert admissions undermined hardship claim | Held for Board — plaintiff failed to prove undue hardship; record supports Board's conclusion |
| Positive criteria — particularly suitable site for residential use | Bairan: unit is compatible with rear-of-property residential uses; proximity to transit and master plan aims favor mixed uses | Board: Building A is street-fronting and suitable for commercial use; other buildings’ shortcomings don’t apply to A | Held for Board — plaintiff did not show site is particularly suited to the prohibited use |
| Negative criteria — public good and zoning plan impairment | Bairan: long-term residential use caused no detriment; mixed-use goals promote residential over retail | Board: denial protects the zoning scheme; conversion to residential on first floor would impair plan | Held for Board — plaintiff failed to overcome presumption that denial upheld the zone plan; insufficent showing of no substantial detriment |
Key Cases Cited
- Bressman v. Gash, 131 N.J. 517 (1993) (standard of review for board decisions and deference principles)
- Kane Props., LLC v. City of Hoboken, 214 N.J. 199 (2013) (deference to zoning board factual findings; review limited to arbitrariness)
- Price v. Himeji, LLC, 214 N.J. 263 (2013) (analysis of positive and negative criteria for use variances)
- Medici v. BPR Co., 107 N.J. 1 (1987) (undue hardship and requirements for positive criteria)
- Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309 (1998) (particularly suitable site standard)
- Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22 (App. Div. 2003) (applicant must show evidence overwhelmingly in its favor when appealing a denial)