                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4099-17T3

NEW JERSEY CHINESE
COMMUNITY CENTER, INC.,

          Plaintiff-Appellant,

v.

FRANKLIN TOWNSHIP ZONING
BOARD OF ADJUSTMENT, 101
METTLERS ROAD, LLC, and
CENTRAL JERSEY COLLEGE
PREP CHARTER SCHOOL,

     Defendants-Respondents.
______________________________

                    Argued March 6, 2019 – Decided April 29, 2020

                    Before Judges Fuentes, Vernoia, and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Somerset County, Docket No. L-0549-17.

                    Cynthia M. Hwang argued the cause for appellant.

                    James J. Kinneally, III, argued the cause for respondent
                    Franklin Township Zoning Board of Adjustment
                    (Marriott Callahan & Blair, PC, attorneys; James J.
                    Kinneally, III, on the brief).
      The opinion of the court was delivered by

FUENTES, P.J.A.D.

      Plaintiff New Jersey Chinese Community Center, Inc. appeals from the

order of the Law Division that upheld the decision of the Franklin Township

Zoning Board of Adjustment (Board) to grant a use variance under N.J.S.A.

40:55D-70d to 101 Mettlers Road, LLC (the Applicant). The use variance was

necessary to permit Central Jersey College Prep Charter School (Central Jersey

College Prep) to relocate to 101 Mettlers Road, a zoning area that did not permit

schools. At the time of the application and prior to its relocation, Central Jersey

College Prep operated the school on a property it leased from plaintiff located

at 17 Schoolhouse Road.

      The Board conducted two public hearings to consider the Applicant's

request for the use variance. The first hearing occurred on December 15, 2016.

In addition to the site plan, architectural drawings, and engineering reports, the

Applicant presented the testimony of licensed engineer Craig Stires, licensed

architect David H. Feldman, Central Jersey College Prep Principal Namik

Serkan, and licensed engineer Jay Troutman.

      The Board conducted the second and final hearing on January 5, 2017. At

the Board's request, architect Feldman explained the infeasibility of relocating


                                                                           A-4099-17T3
                                        2
the school's gymnasium to a different area of the property located at 17

Schoolhouse Road. The Board also heard testimony from its own planner Kevin

O'Brien, who noted:

            [t]his school is considered an inherently beneficial use
            and has received similar approvals from this Board for
            both of its past locations. The school is chartered by
            the New Jersey State Department of Education, it must
            adhere to their rules and regulations, it must also adhere
            to all Building Code regulations concerning
            educational institutions. All the teachers and staff are
            state certified and over 70 percent of the students come
            from here in Franklin Township.

      At this point the Board opened the hearing to the public. An attorney who

represented the Chinese Community Center as an objector addressed the Board

and advocated against the approval of the application. The attorney warned that

if the Board approved the application, it would "be committing a tortious

interference of the parties' contract." The attorney alleged that the Franklin

Township Zoning Officer was aware of the lease agreement between plaintiff

and Central Jersey College Prep and "involved himself in [their] business

dealings despite his official capacity demanding neutrality." After consulting

with its attorney, the Board determined the matters raised by plaintiff's attorney

were not relevant to the Applicant's request for a use variance. The Board

ultimately approved the application unanimously.


                                                                          A-4099-17T3
                                        3
      The Board thereafter adopted an approval resolution that described the

specific facts that supported the use variance sought by the Applicant and found

the Applicant had satisfied the positive and negative criteria codified in N.J.S.A.

40:55D-70d.     Pursuant to Rule 4:69-6(b)(3), plaintiff appealed the Board's

decision in an action in lieu of prerogative writs. The Law Division held a trial

de novo and affirmed the Board's grant of the use variance.

      In this appeal, plaintiff argues the Law Division judge erred when he

upheld the Board's decision. Plaintiff claims the Applicant did not present

sufficient evidence to support the Board's factual findings and legal application

of the positive and negative criteria to grant the use variance under N.J.S.A.

40:55-70d. After reviewing the record developed before the Board and mindful

of our standard of review, we affirm substantially for the reasons expressed by

Judge Thomas C. Miller in his comprehensive statement of reasons attached to

and in support of his May 4, 2018 order.

      It is long-settled that a court will only set aside a local zoning

determination when the record shows its decision was arbitrary, capricious or

unreasonable.    Kramer v. Bd. of Adjustment, 45 N.J. 268, 296-97 (1965).

Pursuant to N.J.S.A. 40:55D-70d(1), a zoning board has the power, "[i]n

particular cases for special reasons, [to] grant a variance to allow departure from


                                                                           A-4099-17T3
                                        4
regulations . . . of this act to permit: (1) a use or principle structure in a district

restricted against such use or principal structure . . . ." The Municipal Land Use

Law (MLUL) "requires an applicant to prove both positive and negative criteria

to obtain a use variance." Price v. Himeji, LLC, 214 N.J. 263, 286 (2013)

(quoting Smart SMR of New York, Inc. v. Fair Lawn Bd. of Adj., 152 N.J. 309,

323 (1998)).

      An applicant must first demonstrate special reasons for granting the

variance, N.J.S.A. 40:55D-70d(1). These special reasons are referred to as the

positive criteria.    The Supreme Court has identified three categories of

circumstances where special reasons may be found:

             (1) where the proposed use inherently serves the public
             good, such as a school, hospital or public housing
             facility; (2) where the property owner would suffer
             "undue hardship" if compelled to use the property in
             conformity with the permitted uses in the zone; and (3)
             where the use would serve the general welfare because
             "the proposed site is particularly suitable for the
             proposed use."

             [Nuckel v. Little Ferry Planning Bd., 208 N.J. 95, 102
             (2011) (internal citations omitted) (quoting Saddle
             Brook Realty, LLC v. Twp. of Saddle Brook Zoning
             Bd. of Adj., 388 N.J. Super. 67, 76 (App. Div. 2006)).]

      The applicant must also satisfy the negative criteria, which are defined in

N.J.S.A. 40:55D-70 as follows:


                                                                               A-4099-17T3
                                          5
            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 the
            purpose of the zone plan and zoning ordinance.

      The first prong of the negative criteria "focuses on the effect that granting

the variance would have on the surrounding properties" while proof of the

second prong "must reconcile the grant of the variance . . . with the

municipality's contrary determination about the permitted uses as expressed

through its zoning ordinance." Price, 214 N.J. at 286 (citing Medici v. BPR Co.,

107 N.J. 1, 21-22 (1987)).

      Satisfaction of both negative criteria prongs generally requires "an

enhanced quality of proof and clear and specific findings by the board of

adjustment that the variance sought is not inconsistent with the intent and

purpose of the master plan and zoning ordinance." Medici, 107 N.J. at 21.

However, when a proposed use is inherently beneficial, satisfaction of the

negative criteria does not require enhanced proof. Sica v. Bd. of Adjustment,

127 N.J. 152, 160-61 (1992). Instead, under these circumstances, the zoning

board must balance the positive and negative criteria by considering the

following procedure its determination: (1) identify the public interest is at stake,


                                                                            A-4099-17T3
                                         6
(2) identify the detrimental effect, (3) determine whether the detrimental effect

can be reduced by imposing reasonable conditions on the use, and (4) determine

whether there would be a substantial detriment to the public good. Id. at 165-66.

      Here, the Board accepted the testimony of its planner, Kevin O'Brien.

Consistent with well-established law, O'Brien testified that a charter school was

an inherently beneficial use.      Northeast Towers, Inc. v. Zoning Bd. of

Adjustment for W. Paterson, 327 N.J. Super. 476, 487 (App. Div. 2000).

O'Brien opined the proposed school would not have a detrimental effect, no

accommodations were needed, and the balancing test weighed in favor of

granting the variance. O'Brien also noted that one of the goals of Franklin

Township's Master Plan is to continue to provide adequate services to meet the

needs of the Township and evaluate the adequacy of existing facilities. O'Brien

testified that the use variance complied with the Master Plan because the

Schoolhouse Road location was too small for Central Jersey College Prep's

expansion plan.

      Plaintiff's counsel did not present any evidence to undermine or challenge

any of the Board's findings and conclusions. In its resolution, the Board found

the Applicant satisfied the criteria necessary to grant a use variance pursuant to

N.J.S.A. 40:55D-70d.       The record fully supports Judge Miller's legal


                                                                          A-4099-17T3
                                        7
conclusions. We thus affirm substantially for the reasons expressed by Judge

Miller in his comprehensive, well-reasoned written opinion.

      Affirmed.




                                                                     A-4099-17T3
                                      8
