Mine Hill sues Planning Board over massage business OK

MINE HILL  - The township has sued its own Planning Board by asking a judge to overturn a variance and site plan approval the board gave in September to permit Pine Tree Nails & Spa on Route 46 to expand to allow massage and "body work therapy" by licensed workers.

The Township Council directed its attorney, the law firm of Murphy McKeon PC, to file a lawsuit against the Planning Board and Pine Tree Nails & Spa.  The complaint was made public Tuesday in state Superior Court, Morristown.

Mayor Sam Morris said the complaint was the council's action. He doesn't vote under Mine Hill's form of government, but he supports the lawsuit.

"You have to show a significant benefit to the township to get a variance, and this doesn't do that. The governing body has the right to defend its ordinances," Morris said.

Misha Lee, the attorney who represented Pine Tree before the Planning Board, could not be reached Tuesday.

According to the Planning Board's resolution memorializing the approval, the nail salon and its original associated services -- waxing, UV gel and color gel -- are permitted uses in the commercial zone district where Pine Tree has been a tenant of 1,100 square feet for some time.

Pine Tree occupies one of the spaces at Ferromonte Plaza, a small strip mall on the westbound side of Route 46, approximately opposite the intersection with Canfield Avenue. Other businesses at the mall include a bank, pizzeria and a preschool.

The applicant, identified in the resolution as Hong Zi Li, whose primary language is Korean, entered into a lease agreement with plaza owner Bruce Kreeger for adjoining space.  Li's plan is to have Pine Tree occupy one enlarged unit of 2,300 square feet that would continue pedicures and manicures but also offer massages and body work therapy.

Li, through an interpreter, told the Planning Board that she and her husband, Chengzhe Chen, were both licensed by the state to perform massages and body work therapy and that they would do that work on clients. The board advised Li that all education and licensing requirements would have to be kept up-to-date for massage therapy services to be offered.

Li's testimony  articulated that "The massage and body work therapy would be an additional service for the existing customer base that would transform the present use toward the spa designation in Pine Tree's name.  It would transition what might be termed a nail salon toward becoming a day spa," the resolution said.

Li's professional planner told the board she realized that Li faced "a significant hurdle" because the massage component is not an inherently a beneficial use.  Inherently beneficial use is the concept that applicants have to prove to receive a variance to operate a business in a zone that doesn't permit the use.

The planner, Lisa Phillips, told the board that the proposed additional use was not significantly different "in its effect, impact and customer base than the existing use," the resolution said.

Two witnesses addressed the Planning Board, both in favor of what the township's lawsuit calls "a massage parlor."  A Mine Hill resident told the board that she is a satisfied customer and is looking forward to enhanced services.  Kreeger, the landlord, told the board that good tenants like Pine Tree are hard to find and that there was ample parking on-site and a traffic light that regulates access.

The lawsuit, meanwhile, contends that Pine Tree failed to present sufficient evidence to support the variance and that the board acted in an arbitrary, capricious and unreasonable manner in approving the variance.

   Staff Writer Peggy Wright: 973-267-1142; pwright@GannettNJ.com.