In Re: Four Three Oh, Inc. v. Board of Adjustment of the Township of North Bergen

IN RE: FOUR THREE OH, INC.,
Debtor

BOARD OF ADJUSTMENT OF THE
TOWNSHIP OF NORTH BERGEN, THE,
Appellant

v.

B.A.P.S. NORTHEAST, INC.;
MICHAEL B. KAPLAN, Chapter 11 Trustee;
TOWNSHIP OF NORTH BERGEN, THE, a Municipal
Corporation of the State of New Jersey;
FOUR THREE OH CORP.

Appeal from the United States District Court
For the District of New Jersey
D.C. No.: 99-cv-06002
District Judge: Alfred M. Wolin

Submitted Under Third Circuit LAR 34.1(a)
February 27, 2001

Before: NYGAARD, ALITO, and ROSENN, Cir cuit Judges.

(Filed: July 2, 2001)

ALITO, Circuit Judge, dissenting:

I respectfully dissent for two reasons. First, unlike the majority, I do not think that the decision of the Board of Adjustment ("BOA") denying the variance was arbitrary or capricious. Second, I do not believe that the Bankruptcy Court's Opinion vacating the condition that the BOA ultimately chose to apply-the hiring of of f-duty police officers-is properly before us for review.

I.

The New Jersey Legislature has delegated the power to grant or deny variances to local boards of adjustment. See N.J. Stat. S 40:55D-70. However, the Legislature has restricted that power in the following manner:

No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance. N.J. Stat. S 40:55D-70(d) (2000).

In other words, a board must deny a variance if it finds either that the variance would ultimately result in a "substantial detriment to the public good" or that the variance would "substantially impair the intent and purpose of the zone plan and zoning ordinance." In this case, the BOA unanimously found that denial of BAPS's application was mandated by the parking and traffic problems that granting the variance would cause. P.A. 451.

"Review of the decision of a board of adjustment . . . begins with the recognition that the boar d's decision is presumptively valid and is reversible only if arbitrary, capricious, and unreasonable. Underlying the pr esumption is the recognition that such boards possess special knowledge of local conditions and must be accor ded wide latitude in the exercise of their discr etion." Sica v. Bd. Of Adjustment, 127 N.J. 152, 166-67, 603 A.2d 30, 37-38 (1992) (citations omitted). "[A] reviewing court [may not] `suggest a decision that may be better than the one made by the . . . planning board,' we merely`determine whether the board could reasonably have reached its decision.' " Pullen v. Township of S. Plainfield Planning Bd., 291 N.J. Super. 1, 6-7, 676 A.2d 1095, 1097 (App. Div. 1996) (quoting Davis Enters. v. Karpf, 105 N.J. 476, 485, 523 A.2d 137, 141 (1987)). Moreover, the bur den on a party is even greater when challenging the denial of a variance than when challenging the approval of a variance. See Nynex Mobile Communications Co. v. Hazlet Township Zoning Bd. of Adjustment, 276 N.J. Super. 598, 609, 648 A.2d 724, 730 (App. Div. 1994) (citing Cerdel Constr . Co. v. Township Comm., 430 A.2d 925 (1981)). "Thus, an applicant bears a heavy burden in overcoming a denial." Id.

The majority rejects the BOA's two main r easons for denying the variance-a shortage of parking and traffic problems-holding that "[t]he r ecord shows little support for . . . these concerns." Maj. at 8. The record, however, contains more than sufficient evidence for the BOA's decision to withstand review.

BAPS does not contend that it was inappropriate for the BOA to consider parking and traffic problems in making its decision on the variance. See Price Co. v. Zoning Bd. of Adjustment, 297 N.J. Super. 327, 331-32, 652 A.2d 784, 787 (Law. Div. 1993). Nor does BAPS contend that the BOA acted unreasonably in refusing to grant its application for a variance as it was initially presented to the BOA. Rather, BAPS challenges the BOA's refusal to accept its proposal to limit occupancy to 505 people as a solution to the detrimental effects of the proposed temple-a temple still capable of accommodating 1500-1600 people.1 P.A. 253.

Under the Sica test, the BOA was first r equired to "reduce the detrimental effect [of granting the proposed variance] by imposing reasonable conditions on the use . . . . [and] then weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good." Sica, 127 N.J. at 166, 603 A.2d at 37. The BOA r ejected the proposed occupancy limit as an invalid "reasonable condition on the use" for three reasons. The BOA determined (1) that the proposed conditions did not sufficiently eliminate the parking and traffic problems; (2) that BAPS would be unable to impose the proposed conditions effectively; and (3) that BAPS would be unlikely to adhere to the proposed conditions. Each of these reasons is supported by substantial evidence and thus provides an adequate basis for the BOA's denial of the variance.

i.

First, the BOA reasonably found that, even with the occupancy limit of 505, the proposed BAPS temple would cause a substantial detriment to the public good with respect to parking and traffic. See Price Co. v. Zoning Bd. of Adjustment, 279 N.J. Super. 327, 328-29, 652 A.2d 784, 785 (Super Ct. 1993).

Testifying about parking, the BAPS expert, Michael Maris, and the BOA's expert, Hal Simoff,2 agreed that the temple would need one parking space for approximately every 3.3 occupants. P.A. 131; 264. Thus, the temple would need 153 spaces to accommodate 505 people. The parking lot that the proposed temple site shares with a T aco Bell has a total of 193 spaces. Therefore, if Taco Bell owns only 27 spaces, as BAPS contends, there was enough parking for 505 people; conversely, if Taco Bell owns 64 spaces, as the BOA contends, then enough parking does not exist.

The only testimony as to the number of parking spaces that Taco Bell owns came from Simoff, who opined, based on his examination of the Taco Bell lease and his measurements of the property, that T aco Bell owns 64 spaces. P.A. 261-62. BAPS's figure of 27 spaces is based entirely on the testimony of Town Planner Michael Kauker, who stated that Taco Bell "could use 27 spaces"-which meant that the zoning laws would be satisfied if T aco Bell had a minimum of 27 spaces. P.A. 11-12. This fact has little logical relationship to the number of spaces that Taco Bell owns and thus does not undermine Simoff 's testimony.

The majority dismisses Simoff 's testimony on this point partly because he is not a lawyer and because Taco Bell has "not appeared to defend its right to a certain number of parking spaces." Maj. at 9 fn.5. Simoff 's lack of a law degree was a fact that the BOA could have considered in assessing the weight to assign to his opinion, but this fact did not make it unreasonable for the BOA to accept his testimony. Moreover, I fail to see the significance for present purposes of Taco Bell's failure to appear in the federal court proceedings. Taco Bell is not bound by the decision in this case, and it is not difficult to think of business reasons why it might have chosen not to appear.

As for traffic, Simoff and Maris disagreed over the ability of Route 1 & 9, a state highway, to absorb the traffic that the temple would generate. The BOA President reasonably worried that Route 1 & 9 "is a heavily trafficked road . . . . It will be a mess. [Cars] will be lined up on[Route 1 & 9], trying to get in.". P.A. 447. Another BOA member noted that when discussing "[Route] 1 & 9, you're talking a state highway. It's treacherous. Exiting and entering anywhere on [Route 1 & 9] for one car, you're taking your life in your hands." P.A. 448-49.

The BOA heard conflicting expert testimony on the impact that the proposed temple would have on traffic. Simoff testified that the traffic volume along Route 1 & 9 at the temple site during peak midday hours was 1600 vehicles/hour. P.A. 228. He further testified that the temple would generate 168 vehicles/hour exiting during peak time. P.A. 231. According to Simoff 's computer modeling, under these conditions, Route 1 & 9 at the temple driveway would operate at Level of Service F.3 P.A. 236. Simoff characterized this level of service as "unacceptable under any conditions." P.A. 237.

Maris agreed that Level of Service F is unacceptable, but he testified that, with the temple, the Level of Service would be "C"-a negative impact of only one service level from its current service level of "B." P.A. 144-45. Maris characterized this as "an acceptable impact on traffic." P.A. 145.

The majority holds that it was unreasonable for the BOA to accept Simoff 's testimony because, on cross-examination, Simoff admitting making a minor error in calculation. The main difference between Simoff 's conclusion and Maris's came from their use of different "peak hour factors"4 -- Simoff testified that he used a peak hour factor of .7 in his calculations, P.A. 292, while Maris testified that he used a peak hour factor of .91. P.A. 148. Simoff admitted on cross-examination that the correct peak hour factor was .82--barely closer to that used by Maris than to that used by Simoff. P.A. 293-94. Nevertheless, using the correct peak hour factor, Simoff calculated the entryway would still be classified as Level of Service D. P.A. 294.

Weighing witness credibility is the pr ovince of the BOA,5 and the BOA was entitled to accept Simoff 's opinion despite his initial error. Simoff admitted that neither he nor Maris used the correct peak hour factor in their application, and that the real peak hour factor lay somewhere in between, only slightly closer to Maris's number than to his own. Moreover, the error would not have changed his ultimate conclusion. Lastly, the error in calculation related only to the ability of cars to exit the proposed temple's parking lot, leaving unaf fected any conclusions about the capacity of the parking lot or the ability of cars to enter the parking lot. Under these circumstances, Simoff may have been slightly "discredited," as the majority claims, but I do not believe that it was unreasonable for the BOA to accept any of Simof f 's testimony, as the majority effectively holds. See Todd v. Sheridan, 268 N.J. Super. 387, 400, 633 A.2d 1009, 1016 (App. Div. 1993) ("The finder of fact is fr ee to accept all, some, or none of an expert witness's opinion."). Moreover, accepting Simoff 's revised testimony, I do not believe that the Board unreasonably decided that a decr ease from Level of Service B to Level of Service D constituted a substantial detriment to the public good.

ii.

Second, the BOA reasonably questioned whether BAPS could adhere to the proposed restriction. The BOA President worried that "it would not be feasible to tell a person that he or she could not attend services." P.A. 448. This concern is neither arbitrary nor capricious. Under Sica, the BOA is required to consider only "reasonable conditions." Sica, 127 N.J. at 166, 603 A.2d at 37. A condition that is not feasible certainly does not qualify as a reasonable condition.

The majority does not address the specifics of how BAPS will prevent more than 505 people fr om attempting to come to services. If the number of cars coming to the temple site exceeds the number of parking spaces, it is pr edictable that some people who wish to attend services and who know that there is space for them in the temple will park their cars illegally on adjoining streets and then walk to the temple. This would create a very danger ous situation. P.A. 227-28.

Simoff recommended that the variance be granted if BAPS would reduce the square footage of the temple to a size suitable for an occupancy of approximately 450 people. P.A. 299 & 398-400. However, none of BAPS's proposals show a willingness to reduce the size of the temple. Thus, even if enough parking existed on the site for an occupancy limit of 505, it was not unreasonable for the BOA to reject the limitation of occupancy as not being a "reasonable condition."

iii.

Third, the BOA reasonably questioned whether BAPS would adhere to the proposed restriction. The BOA President doubted whether BAPS "would voluntarily limit its membership." P.A. 448. It was reasonable for the BOA to question whether BAPS would be willing to tur n people away at the door once 505 people had entered the temple, even though there would still be room for 995 to 1095 attendees.

In questioning BAPS's willingness to do this, the BOA only partially relied on Simoff 's testimony regarding the alleged over-occupancy of BAPS's temple in Edison. The BOA President made the common-sense comment that "I, for one, do not believe that any organization would voluntarily limit its membership." P.A. 447. In other words, he doubted BAPS's willingness to turn away people who wished to enter the temple to worship even though there was plenty of room for them inside. This view was well within the bounds of reason.

The majority questions the BOA's sincerity because the BOA previously granted a variance for the operation of a nightclub on the same property. Maj. at 9. However, as far
as I am aware, BAPS itself has never questioned the BOA's motives. I would view this case quite differ ently if there were any suggestion that the BOA harbor ed any bias towards BAPS or its members, but I am awar e of no such evidence. Furthermore, the parking and traffic concerns associated with a nightclub can be very differ ent from those associated with a house of worship. The temple's main services would be on Sunday, with other services on weekday afternoons. See P.A. 177-78 (BAPS's schedule of services). A nightclub would normally draw patrons only late at night, when parking may be more available and traffic flow is lighter. Also, it is likely that the arrival and departure of patrons of a nightclub would be more evenly spaced over its hours of operation, whereas the proposed BAPS temple could generate mass entry and exodus at specific times. In any event, we do not have befor e us the record concerning the BOA's previous grant of a variance, making it impossible to draw conclusions as to propriety of an analogy between the nightclub and the proposed temple.

II.

I also note that the BOA's later decision to impose the condition of hiring off-duty police officers at BAPS's expense to monitor traffic is not properly befor e us. The BOA imposed the condition on December 1, 1999, a week after filing the notice of appeal to the District Court in this case. The Bankruptcy Court subsequently vacated the condition on January 7, 2000. The BOA has not appealed that decision, nor does it raise the issue in its brief. See Brief of Appellant at 14 (disavowing a challenge to the Bankruptcy Court's order vacating the condition). Indeed, the majority's conclusion that there is nothing in the r ecord to support the condition is self-evident, since the Boar d was ordered by the Bankruptcy Court to begin considering reasonable conditions on November 29, 1999, whereas we have no record before us concerning any BOA actions or meetings occurring after October 9, 1999.

III.

In sum, the majority disregards the long-standing proposition that "[a]n abuse of discretion does not exist simply because we disagree with the [finder of fact's] decision." Barnes Foundation v. Township of Lower Merion, 242 F.3d 151, 167 (3d Cir. 2001) (Nygaard, J., dissenting). " `Abuse' itself is a serious accusation and in using the term `abuse' to define our standard of review, our jurisprudence has recognized the institutional superiority of the [finder of fact]. Therefore, we should not readily discard its findings and conclusions." Id.

Because I believe that the BOA's decision is supported by substantial evidence and is not arbitrary or capricious, I would reverse the decision of the District Court and sustain that of the BOA.

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