CHARLES L. DALRYMPLE v. A & L, LLC, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1625-05T31625-05T3

CHARLES L. DALRYMPLE,

Plaintiff-Respondent,

v.

A & L, LLC, and SEA ISLE CITY

ZONING BOARD OF ADJUSTMENT,

Defendants-Appellants.

____________________________________________________

 

Argued July 24, 2006 - Decided August 15, 2006

Before Judges C.S. Fisher and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. CPM-L-253-05.

Clement F. Lisitski argued the cause for appellant A & L, LLC.

Ellen Nicholson Byrne argued the cause for appellant Sea Isle City Zoning Board of Adjustment.

Charles Gemmel argued the cause for respon-dent (Gemmel, Todd & Merenich, attorneys; Mr. Gemmel, on the brief).

PER CURIAM

This appeal concerns the desire of A & L, LLC (the owner) to demolish a building containing a hardware store in Sea Isle City, in order to construct a new building that would house a hardware store on the first floor, and eight residential condominium units on the second and third floors. The Sea Isle City Zoning Board of Adjustment (the board) approved the owner's application for the several variances required for preliminary and final site-plan approval.

An objector, plaintiff Charles L. Dalrymple, filed this action in lieu of prerogative writs. After hearing argument, the trial judge ruled that the board had fundamentally erred by considering that the principal use of the proposed structure was commercial and not residential. We conclude that the trial judge correctly assessed the undisputed circumstances and nature of the owner's project, and affirm.

The property in question consists of 10,873 square feet on an L-shaped lot. The property's existing 80-year old structure housed a hardware store as well as an uninhabitable apartment on the second floor. The owner determined that it was necessary to demolish the existing structure and rebuild, but that a commercial structure by itself was not economically feasible. The property is in Sea Isle City's C-1 zone, a commercial zone that allows residential units on top of commercial structures as a conditional use. According to the zoning ordinance, the owner was permitted to build two residential units above the commercial space, but a variance was required to build more. Other variances were required as well.

We recognize that the decisions of local boards in such matters carry a presumption of validity when there is evidence to support their conclusions. See, e.g., Lang v. Zoning Bd. of Adj., No. Caldwell, 160 N.J. 41, 58 (1999). This matter, however, as the trial judge correctly recognized, presents a circumstance where the board proceeded on an erroneous understanding of the nature of the project -- the board obviously considered this project to be of a commercial and not a residential nature. When a board bases its determination upon such a fundamental misapprehension, its decision will be viewed as arbitrary, capricious and unreasonable. See, e.g., Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965).

Here, although there is no dispute about the fact that the board never discussed at its hearing whether the project's principal use was commercial or residential, it is clear that the board assumed that the use was principally commercial when it granted the owner's application. In this respect, Judge Steven P. Perskie determined that the board misconceived the nature of the project. Although the judge recognized there was an element of discretion in the board's determination of what would be the predominant use of this property if the project were permitted, he also correctly concluded that the factors to be considered generate the unmistakable and irrefutable conclusion that the project was predominantly residential. For example, the total square footage for the residential aspects of the property was nearly four times greater than the space dedicated to the commercial aspect. The judge also observed that (1) of the eighteen off-street parking spaces included in the project, sixteen were allocated to the residential use and only two to the commercial use; (2) two of the three stories of the structure were dedicated to residential use; and (3) the predominant use disclosed by a view from the north, south and west of the property suggested a residential and not a commercial use.

The judge summarized these factors and concluded that the board's determination was fundamentally flawed and, thus, arbitrary and capricious, in the following way:

I acknowledge that the Board is vested by law with significant discretion, of course they are, that's why they're there. But they can't remake reality. And under-standing that the ordinance doesn't attempt to define other than [by] common sense terms [about] what principal use is, other than by substituting the word "predominant" for the word "principal." And allowing for the reality which I freely acknowledge that there is some in any given fact pattern, there is some element of discretion to a board such as this to determine whether the principal use is in fact commercial or not. In this instance, there can be no dispute that the principal use of this particular property is contemplated as residential.

I agree . . . that the square footage is not necessarily determinative, but it is certainly an important factor. I agree . . . that the utilization of parking is not necessarily determinative, but it is certainly a relevant factor. I agree . . . that the visual, the so-called "appearance" is not necessarily determinative, but it is a significant or substantial factor. In this instance, if you look at the appearance, which is the only one of those aspects that in any way suggests the possibility that the commercial use is the predominant or principal use, you take the fact that the configuration of the building which is narrow on the one side and long on the other, that the narrow side faces the most incoming traffic and that there is indeed where on the first floor out of three, the commercial use is. That is indeed a factor. But taken as a whole, the principal use of this property as contemplated is arguably residential. And as such, the necessary variance to permit this structure was neither sought nor granted; therefore, if for no other reasons, the actions of the Board in approving the site plan and in granting the variances necessarily attendant thereto must be set aside.

We agree, and affirm substantially for the reasons set forth by Judge Perskie in his oral decision. The board's failure to recognize that the principal use of the proposed project was residential required a vacation of its resolution.

We lastly observe that, at oral argument, counsel for the owner advised that an ordinance was recently adopted that has relevance to the matter at hand. It was represented that the ordinance was filed with the Cape May County Planning Board on July 20, 2006. This ordinance states:

In a mixture of residential and other uses development, the principal use for the mixed use shall be deemed to be the use located on the ground floor, except that parking lots or spaces shall not be deemed a principal use, and that if the use is a non-residential use, that it shall occupy a minimum of twenty linear feet (20') along lot front facing Landis Avenue or if not fronting on Landis Avenue, along any lot frontage. The yard requirements applicable to the principal use shall apply for the entire structure.

The owner argues that this ordinance, which the owner claims should apply to our disposition of this appeal because of the "time of decision" rule, see Manalapan Realty v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378-79 (1995); Kruvant v. Mayor and Council of Cedar Grove Twp., 82 N.J. 435, 440 (1980), requires a reversal of the trial judge's decision. However, the meaning of this ordinance and how it would apply to the owner's application has never been considered either by the board or the trial court. In addition, due to the timing of the adoption of the new ordinance, neither party has had the opportunity to brief any of the questions which arise regarding its purported application to the matter at hand. As a result, we conclude that it would be precipitous for this court to rule on the meaning or application of this new ordinance. Indeed, in that regard, we observe that the "time of decision" rule does not apply "automatically" in all cases but instead requires that a court take into account "equitable consideration" and often turns on "a balance of the equities between the developer on the one hand and the public interest on the other." ECLLC v. Planning Bd. of Eastampton, 354 N.J. Super. 171, 197 (App. Div. 2002). Accordingly, we choose at this late hour not to attempt to determine whether or how this new ordinance impacts upon the owner's application.

In affirming we leave this matter in the same posture as Judge Perskie left it; our decision, as was Judge Perskie's, is without prejudice to the owner's right to apply again for any approvals necessary for the pursuit of its project. At that time, if appropriate, the new ordinance will be considered and, presumably, the board will sufficiently analyze the uses to which this proposed project will be put in making any future determination. In short, our affirmance of the judgment, which invalidated the board's approval of the application without prejudice to the submission of a future application, allows for a renewal of the application and, to the extent appropriate, also permits the future consideration and application of the newly-minted ordinance.

Affirmed.

 

A few days prior to the date set for oral argument of this matter, we received a motion for a stay of this appeal and for the consolidation of this appeal with another appeal recently filed in connection with a property dispute between the owner and another, who is not a party to this action. It was then asserted that the resolution of the newer appeal could make unnecessary our consideration of the merits of this appeal. We rejected the invitation to delay our decision and denied that motion in an order entered on July 25, 2006.

The commercial use in the proposed project consists of 3,640 square feet. The proposed residential use consists of eight residential units each of approximately 1,500 square feet.

(continued)

(continued)

8

A-1625-05T3

 

August 15, 2006