PERK'S CAFE, LLC v. POINT PLEASANT BEACH BOARD OF ADJUSTMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3274-04T13274-04T1

PERK'S CAF , LLC,

Plaintiff-Appellant,

v.

POINT PLEASANT BEACH BOARD

OF ADJUSTMENT,

Defendant-Respondent,

and

MAX GAGNON,

Defendant/Intervenor-

Respondent.

 

Submitted October 19, 2005 - Decided

Before Judges Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, OCN-L-2043-03.

Montenegro, Thompson, Montenegro & Genz, attorneys for appellant (Ben A. Montenegro, of counsel and on the brief).

The Galvin Law Firm, attorneys for respondent, Point Pleasant Beach Zoning Board of Adjustment (Dennis M. Galvin, on the brief).

Ansell Zaro Grimm & Aaron, attorneys for respondent, Max Gagnon (Gordon N. Litwin, of counsel; Andrew J. Provence, on the brief).

PER CURIAM

In this action in lieu of prerogative writs, plaintiff, Perk's Caf , appeals from the Law Division's January 25, 2005 order dismissing its complaint and upholding the Point Pleasant Beach Board of Adjustment's (the Board) decision denying Perk's Caf 's application for a use variance. On appeal, plaintiff claims the Board's decision was arbitrary, capricious, and unreasonable. We disagree and affirm.

Plaintiff leases property at 303 Ocean Avenue, Point Pleasant Beach, which is a corner lot with frontage on Ocean Avenue directly opposite the boardwalk, beach and aquarium facilities. The property is located in an SF-5 zone, which includes: single family detached dwellings, public playground, parks and public purpose uses; and public schools. The existing use of the site, as a restaurant, with an upstairs apartment and an accessory parking lot, is a pre-existing nonconforming use predating zoning in the Borough.

Currently situated upon this premise is a two-story building and a twenty-one space parking lot. A restaurant occupies the first floor; the upstairs apartment is not occupied. During the summer, the restaurant serves dinner and stays open until the late evening hours. The parking lot is used solely for restaurant patrons. Restaurant employees park on nearby streets.

On April 2, 2003, Perk's submitted its application to the Board seeking approval to transform the parking lot into a pay parking lot, to be used by the public during the hours when the restaurant is closed. In its application to the Board, Perk's proposed closing the restaurant at 2:00 p.m. and operating the lot as a pay lot from 2:00 p.m. until midnight or later.

Aristotle Alafouzos, a principal of Perk's, testified that the proposed use would increase available parking in the area. Twenty-one spaces are offered in the proposed pay parking lot. Because the restaurant would close at 2:00 p.m., the twenty-six to twenty-eight parking spots usually occupied by restaurant employees on the streets near the restaurant would also become available.

Perk's licensed engineer, Charles Surmonte, prepared the site plan. He testified that the dimensions of the existing parking lot would not change; it would require the same waivers as those required for the existing parking lot. Perk's professional planner, Ronald Sebring, testified that the proposed use would not damage the character of the neighborhood; turnover in the lot would decrease, thereby alleviating traffic congestion; and the proposed use is not inconsistent with the municipality's zoning ordinances or master plan. He acknowledged that a stack-up of cars could result and block the intersection of Ocean Avenue and Point Pleasant Parkway if three or more cars were waiting to turn into the lot.

Several residents of Point Pleasant Beach testified; one without objection and five in opposition to the proposed use. The opponents' predominant concerns focused on traffic congestion and the resulting increase in noise after the bars in the area closed. They were concerned that traffic would worsen with the addition of another pay parking lot along Ocean Avenue, especially if cars backed-up while waiting to enter the lot. Another concern was that an additional sixteen to twenty-one parking spaces would have little or no effect on the parking problem in Point Pleasant Beach.

In deciding to deny the application, comments from the members of the Board included: 1) such a nonconforming use in a residential neighborhood for the sake of sixteen to twenty-one parking spaces would impair the intent and purpose of the zoning ordinance; 2) concern that while turnover may decrease, the parking problem would remain the same; 3) alternative ways exist for plaintiff to make a profit without inconveniencing the neighborhood or impairing the master plan; 4) while the Board had granted similar variances to other properties in Point Pleasant Beach, those properties were located in different neighborhoods where parking and traffic were less of a problem; and 5) granting the variance may cause confusion among drivers because unlike other parking lots in the area, the proposed lot would not be available for parking until 2:00 p.m. The Board voted four to three to deny the application. It memorialized its decision in a resolution adopted on June 19, 2003.

The case was tried before Judge Grasso on December 22, 2004. On January 25, 2005, he issued a sixteen-page written opinion in which he concluded that the Board's decision to deny plaintiff's application was not arbitrary, capricious or unreasonable. In part, the judge found the following:

A review of the record supports the finding that the Board considered and weighed the evidence presented in this case, particularly as it related to conditions peculiar to this site's location. Specifically, the Board acknowledged the need for public parking along the beach and boardwalk area. It weighed the benefits of the proposed pay parking lot against the creation of a wholly new non-conforming use. The Board concluded that the seventeen pay parking spaces offered through plaintiff's application did not constitute "special reasons" as the new use and its impact on parking and traffic problems in the area was inconsequential. The Board submits in its argument, on appeal, that there was no traffic expert offered by plaintiff to testify otherwise. The fact that plaintiff contended that the application offered as many as twenty or twenty-one parking places in contrast to the Board's finding of seventeen parking places is not critical here in view of the Board's assessment of this application.

More specifically, one Board member found that the application did not meet the negative criteria and did not see the significance of allowing a non-conforming use in a residential neighborhood for the sake of seventeen vehicles. Another Board member agreed and stated that the application was not "going to make a hill of a difference." Another Board member felt that the parking lot would be jam packed until the early morning hours and there would be a significant impact on the neighboring properties. That Board member went on to opine that even though the Board had previously approved pay parking areas, this application was in the SF-5 zone, and the proposed seventeen spaces would not make a difference. The fact that the proposed use by plaintiff would offer more public parking in an area of Point Pleasant where it is needed is not, per se, a special reason for the variance grant. See Wajdengart v. Broadway-Thirty-Third Corp., 66 N.J. Super. 346, 354 (App. Div. 1961); Suesserman v. Bd. of Adjustment of Newark, 61 N.J. Super. 28, 35 (App. Div. 1960). On review, this court finds that the Board did not act arbitrarily, capriciously or unreasonably in denying the creation of a wholly new non-conforming use of seventeen to twenty-one public parking spaces, which the Board found would not have a significant impact on the traffic and parking problems in the area. The Board's denial of the variance is entitled to greater judicial deference than a decision to grant a variance. Northeast Towers, Inc. v. Zoning Bd. of Adjustment of West Paterson, 327 N.J. Super. 476, 494 (App. Div. 2000). The record here does not support a finding by this court that the evidence presented by plaintiff before the Board was "overwhelmingly in favor of the applicant." Medical Realty Ass'n v. Bd. of Adjustment of Summit, 228 N.J. Super., 226, 233 (App. Div. 1998).

Finally, plaintiff contends that the Board had previously approved pay parking lot applications for similar sites in the Borough of Point Pleasant Beach. A pre-trial motion by plaintiff for leave to serve interrogatories and produce documents in order to obtain discovery with respect to the issuance of variances and approvals for other pay parking lot applications was denied by the court. In support of its argument, plaintiff references in its trial brief an approval by the Board on July 22, 1999 for a pay parking lot on the corner of Ocean Avenue and Point Pleasant Parkway where the granting resolution recited the need for public parking in the area. Also, during its presentation before the Board, plaintiff's expert directed the Board's attention to the Edwards application in which the Board approved a business owner's request to operate a pay parking lot after hours at a professional office building complex. Plaintiff submits that the Board must avoid inconsistencies and "must articulate, in a consistent manner, the principles that guide their actions." Urban v. Planning Board of Manasquan, 124 N.J. 651, 662 (1991). However, during its discussion of how boards must treat zoning applications, the Court in Urban reaffirmed the principle that deference is given to the discretion exercised by local boards in zoning matters.

In the case at hand, the court has determined that the Board did not act in an arbitrary, capricious, or unreasonable manner. The fact that the Board had approved a pay parking lot several years prior on a nearby location does not bind the Board under the circumstances in this case. Moreover, the Edwards application, unlike plaintiff's application involving a site in an SF-5 zone, entailed an approval for a pay parking lot located in a commercial zone on a different thoroughfare in Point Pleasant Beach. Accordingly, there is no basis in this record for the court to reverse the Board's actions simply because the Board had previously granted approvals for similar pay parking lots in the Borough.

We have carefully reviewed the record in light of plaintiff's arguments. We find those arguments to be without merit. We affirm substantially for the reasons expressed by Judge Grasso in his well-reasoned written decision. No further discussion of plaintiff's arguments is necessary. R. 2:11-3(e)(1)(A) & (E).

Affirmed.

 

The applicable zoning ordinance is not in the appendix. We take the permitted uses from plaintiff's statement of facts.

(continued)

(continued)

8

A-3274-04T1

October 31, 2005