                         NOT FOR PUBLICATION WITHOUT THE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-4349-15T3

RICHARD BARNASKAS and TERRI
BARNASKAS, his wife,

        Plaintiffs-Appellants,

v.

ZONING BOARD OF ADJUSTMENT
OF THE TOWNSHIP OF JACKSON
and MIB PROPERTIES, LLC,

     Defendants-Respondents.
_______________________________

              Argued February 15, 2018 – Decided August 2, 2018

              Before    Judges    Haas,    Rothstadt     and   Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Docket No.
              L-1637-15.

              Edward F. Liston, Jr., argued the cause for
              appellants.

              Sean D. Gertner argued the cause for
              respondent Zoning Board of Adjustment of the
              Township of Jackson (Gertner & Gertner, LLC,
              attorneys; Sean D. Gertner, on the brief).

              Robert C. Shea argued the cause for respondent
              MIB Properties, LLC (R.C. Shea & Associates,
            PC, attorneys; Robert C. Shea and Dina M.
            Vicari, on the brief).

PER CURIAM

      Plaintiffs Richard and Terri Barnaskas appeal from the May

6,   2016   Law   Division   order,   dismissing   their   complaint   with

prejudice.    In so doing, the trial court affirmed the decision of

defendant Zoning Board of Adjustment of the Township of Jackson

(Board), approving the application of defendant MIB Properties,

LLC (MIB) for a use variance along with preliminary and final

major site plan approval.       We affirm.

      To place the current appeal in context, a brief history of

the property is necessary.       The subject property is located along

and to the east of Cooks Bridge Road in Jackson, New Jersey.            The

property was originally a single parcel identified as Block 14801,

Lot 5, consisting of approximately seven acres located in a planned

retirement community (PRC) zone and owned by U.S. Home Corporation.

Lot 5 was eventually conveyed to Manhattan Real Estate (MRE),

which, in 2008, applied for a "use variance with preliminary/final

site plan approval to construct an office park, including office

buildings, a nursery school[,] and [a] bank . . . ."         In an amended

application, MRE sought to

            proceed[]   with   its   presentation   on   a
            bifurcated basis, seeking only a determination
            . . . as to its use variance to permit a bank
            . . . on approximately 1.2 acres . . . and

                                      2                            A-4349-15T3
           reserving issues relating to a full site plan
           for the entire tract for a later application,
           such issues to include the use of the
           remaining    parcel     for    age-restricted
           development.

     In Resolution 2008-36, adopted on August 6, 2008, the Board

approved     the   application,        subject   to    various    conditions,

including: 1) MRE agreeing to erect a bank on 1.2 acres of the

site, "leaving the approximate six . . . remaining acres for

subsequent      development      for    an    age-restricted       residential

development"; and 2) MRE agreeing that "it must receive preliminary

and final site plan approval for the complete project . . . within

one . . . year, at which time the use variance granted herein

shall expire."

     Subsequently, MRE sought "an amended preliminary and final

site plan approval for the construction of a bank on the site, and

preliminary     approval   for    the    construction     of   age-restricted

condominiums."     On January 21, 2009, in Resolution 2009-02, the

Board approved MRE's application for the subdivision of Lot 5

subject    to   several    conditions,       including   MRE     "commenc[ing]

construction of the condominiums within five years of the date of

this resolution."     The Resolution specified that "[f]ailure to do

so [would] result in a nullification of any variances granted by

this Resolution to enable [MRE], or its successors, to construct

condominiums on the subject property."                Thereafter, Lot 5 was

                                        3                              A-4349-15T3
subdivided into Lots 5.01, where the proposed bank would sit, and

Lot    5.02    where   the   age-restricted   condominiums     would    be

constructed.

       After Resolution 2009-02 was issued, Lot 5.02 was sold to

MIB.     On December 23, 2014, MIB filed an application for a

preliminary and final major site plan with "d" and "c" variance

relief pursuant to N.J.S.A. 40:55D-70 to construct a funeral home

with accessory uses, to include a residential apartment, banquet

space and office space.       Funeral homes were not a permitted use

in the PRC zone.       However, under N.J.S.A. 40:55D-70(c)(1), the

Board had the power to grant a variance

              [w]here:   (a)   by  reason   of   exceptional
              narrowness, shallowness or shape of a specific
              piece of property, or (b) by reason of
              exceptional    topographic    conditions    or
              physical   features   uniquely   affecting   a
              specific piece of property, or (c) by reason
              of an extraordinary and exceptional situation
              uniquely affecting a specific piece of
              property or the structures lawfully existing
              thereon, the strict application of any
              regulation pursuant to [the Municipal Land Use
              Law (MLUL)] would result in peculiar and
              exceptional practical difficulties to, or
              exceptional and undue hardship upon, the
              developer of such property . . . .

       Under N.J.S.A. 40:55D-70(d)(1), "[i]n particular cases for

special reasons," the Board had the power to grant a variance "to

allow departure from regulations pursuant to [the MLUL] to permit



                                    4                            A-4349-15T3
. . . a use or principal structure in a district restricted against

such use or principal structure[.]"         However,

           No variance or other relief may be granted
           under the terms of this section, . . . 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.

           [Ibid.]

      On February 21, 2015, MIB provided notice of its application

in the Asbury Park Press, including a description of the project

and the requested variances as well as a list of documents and

plans on file with the Board and available for public inspection.

MIB also sent notices to all property owners within 200 feet of

the subject property.       On March 4, 2015, the Board conducted its

first public hearing on MIB's application, which was attended by

the Board's professionals and during which members of the public

opposed the application. To support its application, MIB presented

expert testimony from its project architect, engineer and planner,

and   traffic   engineer,    along   with   testimony   from   its    owner,

providing an overview of the project as well as the operation of

the proposed development.

      In essence, MIB sought to construct a funeral home that

"incorporate[d] a whole variety of different uses under the roof

of a funeral home."     MIB's owner, Geraldine Oliverie Hennicke, a

                                     5                               A-4349-15T3
Funeral Director since 1987, testified that her vision of the

funeral home was "cutting edge of what [was] happening in the

states around us where they [are] encompassing everything under

one roof to satisfy the needs of the families and clients from

pre-arrangements to . . . repass."

     The Board's professional planner added that MIB's funeral

home was the principal use with "a number of customarily incidental

accessory uses inside the building."       John Amelchenko, MIB's

architect, agreed that the funeral home was "designed to really

function as a self-contained facility" with accessory uses for the

"convenience [of] the friends and family of the deceased."         He

testified about the novelty of the concept, stating "[i]t [was]

not your father's funeral home" but "a trend in funeral home design

that is . . . happening all over . . . the country."    Amelchenko

explained that the approximately 19,000 square foot building was

designed with complex roof lines, to "soften[] . . . the overall

size of the building[,]" along with "white trim, white columns,

cupolas, copper roofs[,]" and "stone veneers," in an attempt to

provide a "residential quality[.]"

     According to Amelchenko, the 14,000 square foot first floor

of the building would have three viewing rooms, capable of holding

eighty people each with a sitting area to provide a "residential

feel[]" complete with a fireplace, bookcases, and a television.

                                6                           A-4349-15T3
There would also be two conference rooms used to meet with family

members of the deceased to make selections on caskets or urns.

According to Amelchenko, the other functional aspects of the

funeral home where the deceased would be received and prepared for

viewing were completely separated from the public portions of the

building to avoid contact with visitors.

     Amelchenko explained that one of the accessory uses that the

funeral   home   would       contain   was     a   one-hundred-and-sixty-seat

banquet   hall   with    a    "warming       kitchen"   to   hold   post-funeral

repasses.    According to Amelchenko, the banquet hall would not be

open to the general public, as if it were a restaurant, and,

instead, would be used "strictly for [the] repass[es.]"                         He

described the kitchen as designed to serve pre-prepared food,

rather than food prepared on site, "that passes through the

kitchen, gets prepped, and then is brought out into the banquet

facility."   After the service, the family would access the banquet

hall for the catered meal through an atrium space.

     In addressing health and safety concerns with having food

served in a funeral home, Hennicke explained that the building was

designed with an atrium in the middle and sets of doors separating

the banquet area to ensure that "food [would] never come in through

the funeral home."       Amelchenko confirmed that the atrium space

separated the funeral home from the banquet facility and served

                                         7                               A-4349-15T3
as a sitting area with "a water feature" and "a large skylight

that will provide some natural light . . . ."       Additionally,

according to Amelchenko, there would be a small retail area where

guests might be able to purchase some flowers, prayer cards, or

other "things of that nature."

     Another accessory use identified for the funeral home by

Hennicke was a two-bedroom apartment for staff members "to be on

the premises [twenty-four] hours a day to answer the families'

needs[,]" as people can pass away at any hour of the day or night.

Noting that the funeral home's hours of operation would be from

8:00 a.m. to 10:00 p.m., Hennicke proposed that the apartment

would be occupied by her daughter and her daughter's fiancé, who

were both part of the business, as it was a "family owned and

operated" business.

     MIB's application also included a nine-hundred square foot

office space on the second floor for "the purpose of having a

combination where an attorney and a financial advisor [would] work

with . . . [Hennicke] for Medicare spend downs" and purchasing

funeral services and crypts upfront.   Acknowledging that she was

unable to provide the expert advice that a financial planner and

estate planning attorney could, Hennicke explained that MIB was

trying "to help families understand the laws and how to protect

their assets and what they can do and cannot do within the law."

                                 8                         A-4349-15T3
In addition, it was confirmed that "[t]his [was] not a situation

where   the   attorney   [would]   do   personal   injury   or   workers'

compensation, this [would] be affiliated with the funeral and the

funeral operation" to continue "the concept of one service under

one roof."

     Supporting variance relief from the PRC zoning requirements,

MIB's project engineer and planner, Brian Murphy, delineated the

site plan and surrounding properties, including the Winding Ways

Retirement Community, and detailed the requested waivers and C1

and C2 variances connected with the PRC zone, including the needed

increased building height for the garage to accommodate the storage

of hearses.   He agreed that the funeral home was the principal use

and that "[n]one of these other uses exist without it."

     Murphy testified that the previously approved condominium

units envisioned a very "long building[,]" whereas the MIB proposal

had a "very residential look" and was an "attractive building."

He also found the funeral home to be particularly well suited for

the site and an appropriate use given the location of the property

and the other commercial uses in the area, particularly, the bank.

According to Murphy, it was "a good transition between [the]

residential use to the south and the bank [and municipal building]

which [were] to the . . . north and west."



                                    9                             A-4349-15T3
     Murphy explained further that the use was appropriate for the

relatively small "size of the property only being [six] acres

where[as] 100 acres [were] required in a [PRC] zone." Furthermore,

he testified that the MIB proposal was a "less intense use on the

site" than the condominium units, because the condominium units

would involve vehicular access during peak hours, "unlike the

funeral home, which is off peak hours pretty much for the entire

use of the building."

     Murphy testified that the project satisfied the statutory

requirements of N.J.S.A. 40:55D-2 in that the project provided

adequate light, air, and open space, while exceeding the 25% of

open space requirement.          He explained that the way the building

was situated, "it [was] not a wall of building, rather . . . it

[was] nicely laid out with the atrium and all the windows, . . .

providing plenty of light into the facility." Additionally, Murphy

indicated the project provided sufficient space in the appropriate

locations    for   a   variety    of   commercial   and   residential     uses.

Further, he testified that the project "provide[d] a desirable and

visual development" with "a very attractive building for the

Township."

     Murphy also addressed the negative criteria under N.J.S.A.

40:55D-70d(1), and determined that the funeral home would be an

improvement to the community.           He invoked the Township's master

                                       10                               A-4349-15T3
plan, specifying that "[a] key goal [was] to work towards a

balanced community."         Murphy indicated that "while the housing

stock   [was]   now   more   than   balanced[,]    .   .   .   commercial   and

industrial development need[ed] to be expanded to meet local

needs."   To that end, he found that "this project in particular

exactly exemplifie[d] that goal."          He testified that although

there had been approval for housing stock on the property, he did

not "believe it [was] all that viable[,]" as demonstrated by the

lack of development "in the last five, six years."

     Murphy also stated that "[a] retirement community really [was

not] appropriate on such a small lot," and given that there was

"a lighted intersection and it would be sharing driveways with

another commercial use," he believed "the commercial use [was]

more conducive to this property." Murphy opined that the "benefits

of this project certainly outweigh[ed] any negatives" because it

supported the goals of the master plan, and he saw no negative

impact with the use, especially given the decrease in "traffic

impact than a permitted use would [be] on the property."

     John Rea, MIB's traffic engineer, testified that the impact

of the funeral home "on peak hour traffic at the intersection of

Cooks Bridge Road and Manhattan Street" would "be less than what

was previously studied [for the 2008 application], and . . . the

intersection would operate acceptably."           Rea opined that "the use

                                     11                               A-4349-15T3
variance [could] be granted . . . without having an adverse or

detrimental impact on traffic conditions."       The Board's traffic

engineer reviewed Rea's reports and testimony and agreed with his

conclusions, indicating that he was "satisfied . . . [MIB could]

address the safety concerns as they have been laid out."

     The Board scheduled an additional hearing date for April 1,

2015, in order to give more members of the public a chance to

speak, and the Board more time to consider the application.

Several   members   of   the   public,   including   plaintiff     Terri

Barnaskas, testified at the hearing, opposing the application and

raising concerns about the adverse impact on traffic and home

values, garnering the necessary licensing from the applicable

licensing agencies, and housing as a preferred use of the site.

     Following the hearings, by a majority vote, the Board approved

MIB's application for variances and design waivers along with

preliminary and final major site plan approval.       On May 6, 2015,

the Board adopted Resolution 2015-21, memorializing its approval

for MIB to construct a "two-story structure for use as a funeral

home that will contain a total of 19,771 square feet which would

include related offices, rental offices, a banquet facility, an

apartment, paved parking lot with . . . 172 parking spaces, a

trash enclosure area and a detached garage."



                                 12                              A-4349-15T3
       In the Resolution, the Board reviewed the history of the site

as well as the testimony and exhibits entered into the record.

The Board also addressed the positive and negative criteria for

the project, noting that "the parcel was substantially undersized

for the use for which it [was] zoned."                    Through its review, the

Board determined that MIB "established special reasons for the

grant of a variance pursuant to N.J.S.A. 40:55D-70(d)(1) in that

the    site      .    .    .   [was]      appropriate"    for    the   proposed      use

"notwithstanding the deviations from one or more of the conditions

imposed     by       the   Land     Use   and    Development    Regulations    of    the

Township."           Further, the Board determined that MIB "established

that development of the proposed use [would] not cause such damage

to    the   character          of   the   surrounding     neighborhood    so    as    to

constitute substantial detriment to the public good nor . . .

substantially impair the intent and purpose of the zone plan and

zoning ordinance."

       As to the negative criteria, the Board indicated that the

proposed construction had "an aesthetically pleasing design," and

MIB agreed "to obtain required approvals to address both better

signage and timing of the existing traffic signal," "to maintain

the existing open space requirement of a related parcel from a

previous approval," and to "improve[e] interior circulation . . .

as suggested by Board professionals."                    The Board imposed various

                                                13                             A-4349-15T3
conditions, however, including requiring MIB to obtain "approval

of all other outside agencies exercising jurisdiction in this

matter," and to "contact the Board of Mortuary Science and any

other State or County Agency having jurisdiction over the approved

use with ancillary uses . . . in order to assure that the regulatory

oversight agencies approve the design and use concept approved"

by the Board.

       On June 10, 2015, plaintiffs filed a complaint in lieu of

prerogative    writs,   contending    that    the   Board's   decision   was

arbitrary, capricious and unreasonable, and seeking to overturn

the Board's decision as against the weight of the evidence and the

law.    On April 8, 2016, Judge Robert E. Brenner conducted a bench

trial on the record, and issued an oral opinion on April 27, 2016,

affirming the Board and dismissing plaintiffs' complaint with

prejudice.    In rendering his decision, Judge Brenner addressed all

of the contentions in plaintiffs' complaint.

       First, the judge rejected plaintiffs' contention that MIB was

bound   by   the   condition   to   build    age-restricted   condominiums

imposed on former Lot 5 in the 2008 and 2009 Resolutions.             Judge

Brenner reviewed Resolutions 2008-36 and 2009-02, in conjunction

with the history of former Lot 5 and the subsequent subdivision,

and concluded that the prior resolutions did not preclude the

Board from approving MIB's application.          According to the judge,

                                     14                             A-4349-15T3
           Lots 5.01 and . . . 5.02 are independent of
           each other as a result of the previous
           subdivision.    The lots were developed at
           different time periods and did not have common
           zoning or construction permits.        They're
           currently owned by different entities.     The
           bank is constructed and has been operating for
           many years. . . .     Resolutions 2008-36 and
           2009-02 do not permanently bind Lots 5.01 and
           5.02 together and do not preclude the Board
           from approving what I see as a new application
           by MIB.

     To    support   his     conclusion,      the    judge   explained     that

Resolution 2009-02 indicated that MRE "requested two separate

reliefs in its applications because Lots 5.01 and 5.02 would

ultimately be subdivided and potentially owned by two different

owners."   Accordingly, "the approvals on Lots 5.01 and 5.02 were

not contingent on each other because if they were[,] MRE would

have sought preliminary and final site plan approval for both lots

simultaneously."        Moreover,   Resolution        2009-02   provided     an

explicit    five-year      limitation    on    the    construction   of    the

condominium units and, according to Judge Brenner, "the failure

to do so resulted in a nullification of any variances granted by

the Resolution."

     Next, Judge Brenner rejected plaintiffs' contention "that the

Board's approval of the accessory uses to the funeral home [were]

a nullity because MIB neither sought nor received variance relief

for what plaintiff[s] argue[] [were] separate principal uses."


                                    15                               A-4349-15T3
Judge Brenner explained that the banquet facility was "totally

associated with the funeral home and not to be used for outside

purposes but to be used only for [repasses]"; the two-bedroom

apartment was "to be occupied by the funeral home manager who

assist[ed] with the operation of the business or other employees

of the funeral home"; and the rental office space was to be used

"for the purposes of having an attorney and financial planner to

work with [Hennicke] for Medicare spend-downs and service as such."

Relying on State v. P. T. & L. Construction Company, 77 N.J. 20

(1978), the judge determined that "while the concept of providing

one location for all . . . funeral needs is something new and

trending, the law makes clear that that does not prevent this

[c]ourt from rendering its decision that these are accessory uses

to the principal . . . or primary use."1

     Turning to plaintiffs' assertion "that the public did not

receive sufficient notice . . . that the rental offices were

separate principal uses[,] and . . . that MIB was seeking relief

from the conditions . . . allege[dly] contained in the 2008

Resolution[,]" Judge Brenner explained that plaintiffs did not

raise any notice deficiencies in their complaint and thus "the


1
   Judge Brenner also rejected plaintiffs' contention that MIB
proposed a coffee-snack bar, finding that "[i]t was not part of
the record [and] . . . that the only food that will be on the
premises is in regard to the banquet facility."

                               16                           A-4349-15T3
argument [was] not properly before the [c]ourt."           Nonetheless, the

judge   determined    "that   MIB's    public    notice    complie[d]      with

N.J.S.A. 40:55D-11." The judge elaborated that MIB's notice timely

and adequately conveyed the "date, time, and place of the hearing,

the nature of the matters to be considered, and an identification

of the property proposed for the development." The judge continued

that the notice "depict[ed] in detail the specific types of

variances sought," and "provided a specific list of items that

were on file with the Board and available for inspection."                  The

judge   concluded    that   "[t]he    public   was   not   deprived   of   any

pertinent information."

     Judge Brenner also rejected plaintiffs' contention "that the

Board lacked jurisdiction to reopen the hearing" on April 1, 2015.

The judge noted that when the March 4, 2015 hearing was opened for

public comment, the weather created a driving hazard "and many

members of the public who attended the meeting left early."                As a

result, one of the Board members requested a continuance, stating

that there was "an awful lot of testimony" and "information to be

absorb[ed] in three hours."          The Board member explained that he

did not "feel like [he was] ready to vote on this one way or the

other without thinking about what [he] heard[,]" and sought the

continuance to consider the proposal and also to permit members

of the public who had already left a chance to comment.                 Judge

                                      17                              A-4349-15T3
Brenner deferred to the Board's "broad discretion" and determined

that   the     circumstances     constituted   a    proper   justification       to

reopen the hearing for an additional day, and that the Board acted

reasonably.

       Finally, Judge Brenner rejected plaintiffs' contention that

"the variances should not have been granted on the record before

the Board."      Instead, citing Kohl v. Fair Lawn, 50 N.J. 268 (1967)

and Burbridge v. Mine Hill, 117 N.J. 376 (1990), the judge found

that "MIB satisfied the positive criteria to support the Board's

granting of the use variance . . . ; that MIB satisfied the

negative criteria . . . ; and that the Board's determination to

grant the use variances [was] neither arbitrary nor capricious."

To support his decision, the judge detailed the expert testimony

presented by MIB, some of which was supported by the Board's

professionals, and concluded that MIB produced uncontroverted

expert testimony to support its application.                     The judge also

recounted the history of Lot 5, which included a 2002 settlement

agreement requiring the approval of the Winding Ways Retirement

Community Homeowners Association, which MIB had obtained.                   Thus,

the    judge    affirmed   the   decision   of     the   Board    and   dismissed

plaintiffs' complaint with prejudice.              This appeal followed.

       On appeal, plaintiffs renew the arguments rejected by Judge

Brenner as follows:

                                      18                                  A-4349-15T3
         I. MIB NEVER SOUGHT, AND THE BOARD NEVER
         GRANTED, RELIEF FROM THE CONDITIONS AGAINST
         FURTHER COMMERCIAL DEVELOPMENT WHICH WERE
         IMPOSED ON FORMER LOT 5 AS PART OF THE BANK
         APPROVAL ON CURRENT LOT 5.01; ANY VARIANCE
         RELIEF FOR COMMERCIAL DEVELOPMENT ON CURRENT
         LOT 5.02 IS A NULLITY.

         II. NEITHER THE PRACTICE OF LAW, NOR FINANCIAL
         PLANNING, NOR POST-FUNERAL BANQUET HALL
         RENTALS, NOR A COFFEE/SNACK BAR STORE, NOR THE
         TWO-BEDROOM APARTMENT, CAN BE ACCESSORY TO A
         FUNERAL HOME; SINCE MIB NEITHER SOUGHT NOR
         RECEIVED VARIANCE RELIEF FOR THESE SEPARATE
         PRINCIPAL USES, THE APPROVAL IS A NULLITY.

         III. THE PUBLIC DID NOT RECEIVE SUFFICIENT
         NOTICE THAT THE 'RENTAL OFFICES' WERE SEPARATE
         PRINCIPAL USES, AND THE PUBLIC DID NOT RECEIVE
         ANY NOTICE WHATSOEVER THAT RELIEF FROM THE
         2008 CONDITIONS OF APPROVAL WERE SOUGHT; THE
         BOARD'S DECISION IS NULL AND VOID FOR LACK OF
         JURISDICTION.

         IV. THE BOARD OF ADJUSTMENT'S INABILITY TO
         DECIDE ON THE APPLICATION AFTER THE PROOFS
         WERE CLOSED SHOULD HAVE RESULTED IN A DENIAL
         OF   THE   APPLICATION;  THE   BOARD  LACKED
         JURISDCTION TO REOPEN THE PROOFS.

         V. THE BOARD DID NOT HAVE SUFFICIENT RECORD
         SUPPORT TO GRANT MIB'S APPLICATION; THE TRIAL
         COURT ACCEPTED THE BOARD'S ERRONEOUS LEGAL
         REASONING AND UNTENABLE FACTUAL FINDINGS.

    We review a zoning board's decision using the same standard

as the trial court, Cohen v. Bd. of Adjustment of the Borough of

Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007), and, like

the trial court, our review is limited.   Smart SMR of N.Y., Inc.

v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327


                              19                          A-4349-15T3
(1998).    We give deference to a zoning board's decision and will

only   reverse   if   the   decision    was   arbitrary,    capricious,    or

unreasonable.    Kane Properties, LLC v. City of Hoboken, 214 N.J.

199, 229 (2013).      However, where the issue on appeal involves a

purely legal question, we afford no special deference to the trial

court's or the zoning board's decision, and must determine if the

board understood and applied the law correctly.            D. Lobi Enters.,

Inc. v. Planning/Zoning Bd. of the Borough of Sea Bright, 408 N.J.

Super. 345, 351-52 (App. Div. 2009).

       In affording deference to the zoning board, a reviewing court

may not substitute its judgment for that of the municipal body.

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

Long emphasized in Jock v. Zoning Bd. of Adjustment:

            In the final analysis . . . public bodies,
            because of their peculiar knowledge of local
            conditions, must be allowed wide latitude in
            their delegated discretion. The proper scope
            of judicial review is not to suggest a
            decision that may be better than the one made
            by the board, but to determine whether the
            board could reasonably have reached its
            decision on the record.

            [184   N.J.     562,   597    (2004)    (citations
            omitted).]

Consistent with this jurisprudential policy of deference to a

local board's peculiar knowledge of local conditions, "[a] court

should sustain a local zoning board's determination to grant a


                                   20                               A-4349-15T3
zoning   variance   if   that    board's    decision   comports    with   the

statutory criteria and is founded on adequate evidence [in the

record.]"    Burbridge,    117    N.J.     at   385.   Applying    the   above

standards, we discern no reason to disturb the trial court's or

the Board's decision and affirm substantially for the reasons

expressed in Judge Brenner's cogent oral opinion.                 We add the

following comments.

     We recognize that "[z]oning variances are often made subject

to conditions, contravention of which constitute violations of

land use ordinances."     Washington Commons, LLC v. City of Jersey

City, 416 N.J. Super. 555, 560 (App. Div. 2010).           The conditions,

like the variances themselves, run with the land and are binding

on subsequent owners.      Aldrich v. Schwartz, 258 N.J. Super 300,

308 (App. Div. 1992).

     Here,   however,     Resolution        2009-02    contained    explicit

nullifying language, specifically, that any variances granted in

connection with the age-restricted condominiums would expire if

they were not constructed within five years.           As such, the failure

to commence construction of the condominiums within the required

five years of the resolution nullified the variances. In addition,

we agree with Judge Brenner that Resolution 2009-02 clearly showed

that MRE requested two separate forms of relief.           Thus, we reject

plaintiffs' contention that the Board's "failure to require [MIB]

                                    21                               A-4349-15T3
to   apply   for   variance/changed-circumstances   relief"     from   the

conditions     imposed   in   the     resolutions   "deprived     it     of

jurisdiction."

      Likewise, we reject plaintiffs' assertion that each of the

uses the Board and Judge Brenner deemed accessory to the principal

use were, in fact, principal uses that each required separate

requests for variance relief.        Jackson Township Code Sec. 244-6

defines "Principal Use" as "[a] use of land, building or structure,

or portion thereof, allowed in a zoning district and subject to

the restrictions applicable to that district."      An "Accessory Use"

is defined as "[a] use of land, or of a building or portion of a

building or of a structure . . . customarily incidental and

subordinate to the principal use . . . located on the same lot

with such principal use."     Ibid.

      Although "[z]oning ordinances frequently permit uses that are

accessory or incidental to an expressly permitted use[,] . . .

they often do not define those permitted accessory uses, and courts

must determine whether the proposed accessory use is 'customarily

incidental' to the main activity."       Wyzykowski v. Rizas, 132 N.J.

509, 518 (1993).      "[A]n accessory use is implied as a matter of

law as a right which accompanies the principal use."             Shim v.

Washington Twp. Planning Bd., 298 N.J. Super. 395, 401 (App. Div.

1997).   "Zoning ordinances which permit 'customarily incidental'

                                    22                            A-4349-15T3
accessory uses to the main activity permit, by implication, any

use that logic and reason dictate are necessary or expected in

conjunction with the principal use of the property."       Charlie

Brown of Chatham, Inc. v. Board of Adjustment, 202 N.J. Super.

312, 323 (App. Div. 1985)).

     "In analyzing whether a use is customarily incident to the

permitted use, two determinations must be made. The first is

whether the use is incidental to the main use: does the use bear

a close resemblance and obvious relation to the main use to which

the premises are put?"    P. T. & L., 77 N.J. at 26-27 (alteration

omitted).   "Second, it must be determined whether a use which is

found to be incident to the permitted use is also a customary

use."   Id. at 27.   "Generally, a use which is so necessary or

commonly to be expected that it cannot be supposed that the

ordinance was intended to prevent it will be found to be a

customary use."   Ibid.   "The fact that a use is not customarily

indulged in, however, is not conclusive, and even if the use in

question is found in a small percentage of similar main uses, the

use may still be found to be 'customary.'"   Ibid.

     Here, the funeral home is clearly the principal use and the

other proposed uses are "incidental and subordinate" to the funeral

home.   The attorney's and financial planner's offices are to be

used only for the benefit of the funeral home's customers.      They

                                23                          A-4349-15T3
are not permitted to work on outside matters or have clients who

are not also clients of the funeral home.2              Likewise, the banquet

hall is not a restaurant and is not open to the general public for

dining.    Indeed, its only purpose is to provide a banquet facility

for catered dining following a funeral.3

     Similarly, the two-bedroom apartment to be used by MIB's

employees is incidental to the funeral home.                   In that regard,

Charlie Brown is distinguishable.          There, we affirmed the Board's

denial of a variance for Charlie Brown's construction of second

floor   apartments    to   provide   sleeping         accommodations   for   the

restaurant's    personnel   as   part     of    the   company's   compensation

program.      202 N.J. Super. at 318-19.               The Board denied the

application, which violated the zoning laws' prohibition against

residential uses mixed with commercial uses, finding that the use

did not constitute an accessory use.            Id. at 318.

     We    affirmed   because    there    was    no    proof   presented     that

providing employees with sleeping quarters on the premises of a

restaurant was reasonably related or incidental to its operation.

Id. at 324.    In so doing, we viewed the term "incidental" in the


2
   We leave to these two professionals the task of determining
whether this arrangement raises ethical concerns with their
respective licensing entities.
3
   Like Judge Brenner, we reject plaintiffs' continued reference
to a snack bar as it is not part of the record.

                                     24                                 A-4349-15T3
definition of "accessory use" to incorporate two concepts; the use

must be "subordinate and minor in significance" and must also bear

a "reasonable relationship with the primary use."        Ibid.      "It is

not enough that the use be subordinate; it must also be attendant

or concomitant."    Ibid.

       Here, MIB presented sufficient evidence that their employees

residing on site was directly related, subordinate and attendant

to the main permitted use of the property's operation as a funeral

home, as opposed to a part of MIB's compensation program.                  As

Hennicke pointed out, people do not die between normal business

hours and employees living on site would be able and available to

answer calls and assist families at any hour of the day or night.

       Similarly, we reject plaintiffs' contention that the public

did not receive sufficient notice that the "rental offices . . .

were    separate   businesses,"   and   "that   the   effect   of     MIB's

application was to seek relief from the conditions of Resolutions

2008-36 and 2009-2."    Although this issue was not properly before

the trial court and, in turn, not properly before us, our decision

that the rental offices were permissible accessory uses and that

MIB was not required to seek relief from the conditions contained

in the prior resolutions render these contentions moot.

       Equally unavailing is plaintiffs' assertion that "[i]t was

improper for the Board . . . , upon realizing that . . . MIB had

                                  25                                A-4349-15T3
not met its burden of proof, to reopen the record and permit

supplementation of the record to correct perceived deficiencies

in the application."   Despite plaintiffs' baseless assertions to

the contrary, we find no reason to believe the matter was reopened

for any improper reason.

     Finally, we reject plaintiffs' argument that MIB failed to

satisfy both the positive and negative criteria required to warrant

variance relief.   Undoubtedly, an applicant seeking a use variance

has the burden to "prove both positive and negative criteria" to

a zoning board.    Smart, 152 N.J. at 323.   The positive criteria

set forth in N.J.S.A. 40:55D-70(d)(1) authorizes a zoning board,

"[i]n particular cases for special reasons, [to] grant a variance

to allow departure from regulations pursuant to . . . [the MLUL]

to permit . . . a use or principal structure in a district

restricted against such use or principal structure . . . ."

     The term "special reasons" is not defined in N.J.S.A. 40:55D-

70(d)(1).   However, special reasons may be found where: (1) the

proposed use inherently serves a public good; (2) the owner of the

property would suffer an "undue hardship" if required to use the

property in the manner permitted by the zoning ordinance; or (3)

the use would serve the general welfare because the site is

particularly suitable for the proposed use.      Nuckel v. Little

Ferry Planning Bd., 208 N.J. 95, 102 (2011).

                                26                          A-4349-15T3
     In general, particularly suitable means that "the general

welfare is served because the use is peculiarly fitted to the

particular location for which the variance is sought."     Kohl, 50

N.J. at 279.   Our Supreme Court has observed that, in the context

of the specific parcel, it means that strict adherence to the

established zoning requirements would be less beneficial to the

general welfare.   See Kramer, 45 N.J. at 290-91.    An application

demonstrates a special reason if there is proof that "the subject

property was particularly suitable for the proposed use."    Medici

v. BPR Co., 107 N.J. 1, 24 (1987).

     At the same time, our Supreme Court has recognized that almost

all lawful uses of property can be said to promote the general

welfare to some degree, with the result that if general societal

benefit alone constituted "an adequate special reason, a special

reason almost always would exist for a use variance."      Kohl, 50

N.J. at 280.    As a result, any application for a use variance

based on the particularly suitable standard has always called for

an analysis that is inherently site-specific.       See Stop & Shop

Supermarket Co. v. Bd. of Adjustment of Springfield, 162 N.J. 418,

431 (2000).

     The negative criteria set forth in N.J.S.A. 40:55D-70 states

that the applicant must show the "variance or other relief can be

granted without substantial detriment to the public good and will

                                27                          A-4349-15T3
not substantially impair the intent and the purpose of the zone

plan and zoning ordinance."         The applicant must establish the

negative criteria with an "enhanced quality of proof."               Price v.

Himeji, LLC, 214 N.J. 263, 286 (2013).          To do so, the applicant

must focus "on the effect that granting the variance would have

on the surrounding properties."            Ibid.     The applicant "must

reconcile the grant of the variance for the specific project at

the designated site with the municipality's contrary determination

about     the   permitted   uses   as    expressed   through   its     zoning

ordinance."     Ibid.

     We conclude there was sufficient credible evidence supporting

the Board's finding that MIB satisfied both the positive and

negative criteria for the use variance.              As to the positive

criteria, the Board had ample evidence that the approximately six

acres comprising Lot 5.02 was particularly suited for the funeral

home and substantially undersized to construct condominium units.

The funeral home would continue the residential feel of the

surrounding area while providing a buffer between the commercial

and residential uses.       MIB met all applicable light, air, and open

space requirements, while also addressing the decreased traffic

impact.

     As to the negative criteria, as Judge Brenner found, although

residential development on the property had been approved, the

                                    28                                A-4349-15T3
fact that it had been undeveloped for almost six years indicated

that residential use was not the most viable option. Additionally,

both the Board's traffic engineer and MIB's traffic engineer agreed

that the traffic impact would be less than if condominium units

were constructed.    Further, as Judge Brenner found, a funeral home

with a residential look and aesthetically pleasing design would

provide a balanced community, which was directly in line with

Jackson Township's master plan.     Therefore, we are satisfied that

the   Board's     decision   was   not   arbitrary,   capricious,    or

unreasonable and was amply supported by the record.

      Affirmed.




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