MAX GAGNON v. MAYOR AND COUNCIL OF THE BOROUGH OF POINT PLEASANT BEACH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4626-04T54626-04T5

MAX GAGNON,

Plaintiff-Appellant,

v.

MAYOR AND COUNCIL OF THE

BOROUGH OF POINT PLEASANT BEACH,

Defendant,

and

THE ZONING BOARD OF ADJUSTMENT

OF POINT PLEASANT BEACH, FRANK

STORINO and ANTHONY STORINO,

individually and trading as

STORINO & STORINO, a partnership,

Defendants-Respondents.

_____________________________________

 

Argued June 6, 2006 - Decided July 12, 2006

Before Judges Skillman, Axelrad and Payne.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2487-00.

Andrew J. Provence argued the cause for appellant (Ansell Zaro Grimm & Aaron, attorneys; Gordon N. Litwin, of counsel; Mr. Provence, on the brief).

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

Ben A. Montenegro argued the cause for respondents Frank Storino and Anthony Storino, individually and trading as Storino and Storino (Montenegro, Thompson, Montenegro & Genz, attorneys; Nicholas C. Montenegro, of counsel; Mr. Montenegro, on the brief).

PER CURIAM

This is an appeal from a final judgment of the Law Division, which affirmed a decision of the defendant Point Pleasant Beach Board of Adjustment determining that the use of a property owned by defendants Frank and Anthony Storino as a commercial parking lot for twenty-five vehicles is a valid nonconforming use and granting their application for a use variance to expand this nonconforming use to allow forty-seven cars to be parked on the property.

The subject property is located at the intersection of Ocean Avenue and Point Pleasant Parkway in Point Pleasant Beach. The property is directly across the street from the Jenkinson's Aquarium and close to a variety of boardwalk commercial activities and an entrance to the beach.

The property consists of a northerly lot, Lot 37, and two southerly lots, Lots 1 and 2. The total area of the three contiguous lots is .29 acres.

Lots 1 and 37 were formerly occupied by small summer bungalows. Lot 2 was vacant, except for a garage situated at the corner of the lot next to Lot 37. Lot 2 and also apparently parts of Lots 1 and 37 have been used by the public for parking since at least 1943.

The lots are located in a residential zone in which parking is not currently a permitted use. However, as discussed in more detail later in the opinion, the zoning in the area included a business overlay zone in which parking was a permitted use until 1993. The Storinos claim that their property was within that zone.

The Storinos, who have an ownership interest in the Jenkinson Aquarium and other businesses located on the boardwalk, leased parts of the lots from the owner for use as a parking lot from 1977 to 1996. During that period, the Storinos and their managers parked their own cars in the lot. In addition, they leased approximately ten other parking spaces to members of the public. This use of the property as a parking lot for twenty-five vehicles was authorized by annual licenses issued by Point Pleasant Beach.

In 1996, the Storinos bought the three lots from the former owner. In 1998, they tore down the bungalows and garage and applied to the municipal Construction Code Official for authorization to park forty-six (later increased to forty-seven) vehicles on the property as a valid nonconforming use. The Code Official denied the application and referred it to the Board of Adjustment. The Storinos subsequently applied to the Board for a determination that the proposed parking lot was permissible as a pre-existing, nonconforming use or, in the alternative, the grant of a use variance. The Storinos also sought a determination by the Board that their pre-existing use of the property as a parking lot for twenty-five vehicles was a valid nonconforming use. The application was accompanied by a site plan showing the proposed lay-out of the expanded parking lot. The Storinos proposed to operate a parking facility on the property that would include two attendants, limited valet parking, a gravel surface, signage, two curb access points, wheel stops, and lighting.

The Storinos' application also sought a number of substantial bulk variances required for the expanded parking lot. These variances included authorization for 100% utilization of the property for parking, while the zoning ordinance only allows 35% utilization; authorization for the total square footage of parking spaces to be 144 square feet, while the zoning ordinance requires 200 square feet for every space in zones where parking is a permitted use; and a setback of only one foot on the northern boundary of the property, while two feet is required. In addition, the proposed expanded parking lot would not conform with the landscaping or buffering requirements for a parking lot in the zones where this is a permitted use.

The Storinos' primary witness at the hearing on their application was Richard Butryn, a licensed planner and engineer. Butryn testified that there is "an obvious need for parking in the area" due to the commercial uses of property on the eastern side of Ocean Avenue. He explained that the Storinos' property is ideally suited for a commercial parking facility because it is located on a corner lot nearer to the commercial district than many other parking lots in the municipality. Butryn testified that a commercial parking facility would be more compatible with the surrounding neighborhood than the rental bungalows previously situated on the property (described as "animal house[s]"), and less intensive than more common commercial uses, such as a convenience shop, which encourages frequent customer traffic. Moreover, he testified that the proposed expanded parking lot would encourage open space and provide a buffer between the residential and commercial zones. Accordingly, it was his opinion that the proposed use would further the goals of the Master Plan and the zoning ordinance by protecting and stabilizing established residential areas of the municipality, advancing the free flow of traffic, and promoting a desirable visual environment through creative development techniques and good civic design. Butryn also expressed the opinion that the proposed expansion of the parking lot would be "a step in the right direction" in meeting the need for additional parking in the boardwalk area.

A number of local residents testified against the proposed use. One testified that local residents "don't want to have another parking lot," reasoning that "[g]ravel will be all over the sidewalk." A second resident echoed this sentiment, noting that the Borough is going to "look like a desert if we keep just putting [up] parking lots." Another resident testified that the parking lot was inconsistent with the Borough's policy to encourage parking near the train station. Another resident testified that the lot would do little to alleviate the Borough's parking problems and would encroach on the residential zone. Yet another resident opined that the proposed lot would back up traffic along Parkway and Ocean Avenue, that it would provide only negligible additional parking, and would be harmful to the environment. Plaintiff testified that the Board should consider a petition opposing the application signed by seventy other local residents.

At the conclusion of the hearing, the Board decided, by a five to two vote, that the parking lot for twenty-five vehicles was a valid nonconforming use. The Board also decided, by a five to two vote, to grant the Storinos' application for a use variance under which they will be allowed to park a total of forty-seven vehicles on the property. In the memorializing resolution adopted on October 7, 1999, the Board made the following findings:

a. The site was used as an independent parking lot use for over 55 years, and predated zoning.

b. The Municipality has issued a parking permit at this location for the last twenty-five years.

c. Although there is a need to protect the residential zone from encroachment, this lot is uniquely located at Ocean Avenue and is primarily linked to adjacent commercial uses.

d. Twenty additional cars did not make a substantial difference to this location and neighbors; but the increase in parking is needed.

e. The Board noted that the parking authority can place parking in residential or commercial zones as they see fit. This connotes the importance of having additional parking.

Based on these findings, the Board reached the following conclusions regarding the grant of a use variance for expansion of the pre-existing nonconforming use:

WHEREAS, the Board found that this application has met the requirements of N.J.S.A. 40:55D-(70)(d) in that the proposed parking lot would be an enhancement to the surrounding neighborhood and the parking lot could not be made without the granting of a variance. This improvement to the property was an advantage as described in N.J.S.A. 40:55D-2(i) "to promote a desirable visual environment through creative development techniques and good civic design and arrangement."

WHEREAS, the Board has determined that the relief sought can be granted without a negative impact on the surrounding property owners; and

WHEREAS, the Board has determined that the relief sought does not impair the intent and purpose of the Master Plan or zoning ordinance of the Borough of Point Pleasant Beach.

Plaintiff brought this action in lieu of prerogative writs challenging the Board's decision. The case was not heard by the Law Division until nearly five years later. The protracted procedural course of the case that resulted in this delay is discussed in our prior unreported opinion in Gagnon v. Zoning Bd. of Adjustment of Point Pleasant Beach, A-6893-00T1 (App. Div., Oct. 11, 2002), and need not be repeated here.

The trial court concluded in a written opinion that the Board correctly determined that there was a valid, pre-existing, nonconforming use of the property for the parking of twenty-five vehicles. The court also concluded that the Board had correctly found that the Storinos satisfied the statutory requirements for the grant of a use variance authorizing expansion of the parking lot to enable them to park a total of forty-seven vehicles on the property.

I

N.J.S.A. 40:55D-68 provides in pertinent part:

Any nonconforming use . . . existing at the time of the passage of an ordinance may be continued upon the lot[.]

A nonconforming use is defined as

a use or activity which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption, revision or amendment.

[N.J.S.A. 40:55D-5.]

A property owner has the burden "to establish the existence of a nonconforming use as of the commencement of the changed zoning regulation and its continuation afterward." S&S Auto Sales, Inc. v. Zoning Bd. of Adjustment of Stratford, 373 N.J. Super. 603, 613 (App. Div. 2004). "If the present use is substantially similar to the use at the time it became nonconforming, it will be permitted to continue." Bonaventure Int'l, Inc. v. Borough of Spring Lake, 350 N.J. Super. 420, 433 (App. Div. 2002).

The first zoning ordinance in Point Pleasant Beach was adopted in 1940. This ordinance divided the municipality into four zoning districts -- A, B, C, and a business overlay zone. The boundaries of these districts were "shown on the map attached to and made a part of th[e] Ordinance." In the business overlay zone, all uses were permitted except those expressly prohibited or others deemed generally "noxious or offensive by reason of odor, dust, smoke, gas, vibration, or noise." Because commercial parking was not either expressly prohibited or a noxious or offensive use, it was a permitted use in the business overlay zone.

Butryn testified that the map showing the boundaries of the districts established by the 1940 zoning ordinance could not be located. In the absence of that map, there was no factual foundation for concluding that the subject property was located in the business overlay zone in which commercial parking was a permitted use.

However, on March 10, 1959, the municipality amended the 1940 zoning ordinance to place the area within which the subject property is located in the business overlay zone. This amendment stated in pertinent part:

That area of Ocean Avenue located in "C" District Building Zone Map of the Borough of Point Pleasant Beach, Ocean County, New Jersey, to a depth of one hundred (100) feet [on the] easterly and westerly sides of the aforesaid Ocean Avenue, with the westerly side of Ocean avenue to a depth of one hundred (100) feet between Niblick Street and Parkway, shall [hereinafter be] included in the BUSINESS ZONE of the Borough of Point Pleasant Beach.

The distance between Niblick Street and Parkway is only one short block. Thus, the area rezoned as a result of the 1959 amendment was a one hundred foot wide, one block long strip on each side of Ocean Avenue with a total area of slightly more than an acre. Although it is impossible to be certain, in the absence of the 1940 zoning map, that this entire strip was within the C zoning district referenced in the 1959 amendment, it seems highly improbable that this small area would have encompassed more than one zoning district. Therefore, we conclude that commercial parking was a permitted use of the subject property under the 1959 amendment. This conclusion is supported by the fact that Point Pleasant Beach issued licenses for the parking of twenty-five vehicles to the Storinos predecessor in title during the period that this zoning amendment was in effect and continued to issue such licenses after that use became nonconforming as a result of the 1993 amendments to the zoning ordinance.

Moreover, it is clear that the property was used as a commercial parking lot for twenty-five vehicles from 1977 to 1993, when the use was made nonconforming. The Storinos' predecessor in title leased part of the property to the Storinos for this use from 1977 until 1996 when the Storinos bought the property. The Storinos used fifteen parking spaces for their vehicles and that of their employees, and they subleased the remaining spaces to other users during this entire period.

We are also satisfied that the change in the method of payment for parking space from annual to monthly or daily did not constitute an expansion of the nonconforming use that required a use variance, because this change did not affect the use of the property as a commercial parking lot for twenty-five vehicles. In any event, the Board granted the Storinos a use variance that included authorization to operate the parking lot on a daily fee basis. Although we conclude for the reasons set forth in section II of this opinion that this use variance was invalid, we would sustain the variance for the limited purpose of allowing the Storinos to operate the parking lot on a daily fee basis if we viewed this method of payment as an expansion of the pre-existing nonconforming use.

II

Under N.J.S.A. 40:55D-70(d)(2), a zoning board of adjustment has "the power to . . . [grant, i]n particular cases for special reasons, . . . a variance to allow departure from regulations . . . to permit . . . an expansion of a nonconforming use[.]" This statute further provides that "[n]o [use] variance . . . may be granted . . . without a showing that such variance . . . 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. "An applicant satisfies the requirements of subsection d when both 'positive' and 'negative' criteria are met." Cell S. of N.J. v. Zoning Bd. of Adjustment, 172 N.J. 75, 82 (2002). The criteria have been explained as follows:

Generally speaking, to satisfy the positive criteria, an applicant must prove that the use promotes the general welfare because the proposed site is particularly suitable to the proposed use. . . . Further, to satisfy the negative criteria, in addition to proving that the variance can be granted without substantial detriment to the public good, an applicant must demonstrate through an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.

[Ibid. (quoting New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 6 (1999)) (emphasis omitted).]

It is firmly established that "[b]ecause nonconforming uses are inconsistent with the objectives of uniform zoning, . . . they should be reduced to conformity as quickly as is compatible with justice." Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 315 (1980). "The method generally used to limit nonconforming uses is to prevent any increase or change in the nonconformity." Id. at 316. Therefore, the grant of use variances authorizing expansion of nonconforming uses is generally disfavored. See Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 277-83 (1967); Pieretti v. Mayor of Bloomfield, 35 N.J. 382, 388-89 (1961). In considering an application for such a variance, a board of adjustment's primary focus should be upon "aesthetic improvement of a nonconforming use to create better conformity with the existing use within the surrounding area[.]" Burbridge v. Governing Body of Mill Hill, 117 N.J. 376, 387 (1990); see also Alpine Tower Co. v. Mayor of Alpine, 231 N.J. Super. 239, 249-50 (App. Div. 1989); Kessler v. Bowker, 174 N.J. Super. 478, 486 (App. Div. 1979), certif. denied, 85 N.J. 99 (1980).

When the Storinos applied for a use variance authorizing expansion of their nonconforming parking lot use, the sole use of their property was as a parking lot; the two bungalows and garage that had been located on the property had been removed and the property was no longer devoted to any residential use. Moreover, since there is no indication that the current zoning ordinance authorizes dual uses, it is unlikely the Storinos could continue the current nonconforming parking lot use and also construct a new residence or residences on the property. Therefore, in determining whether the Storinos satisfied the positive and negative criteria for the grant of a use variance, it is appropriate to compare the existing nonconforming use as a parking lot for twenty-five vehicles with the proposed expanded nonconforming uses as a parking lot for forty-seven vehicles.

The sole "special reason" that the Board identified in its resolution granting the Storinos use variance application was that the expanded forty-seven vehicle parking lot would "promote a desirable visual environment through creative development techniques and good civic design and arrangement." N.J.S.A. 40:55D-2(i). When "aesthetic improvement" is relied upon as the basis for a variance authorizing expansion of a nonconforming use, "the phrase refers to the overall visual compatibility of the use; it is inextricably entwined with notions of the general welfare." Burbridge, supra, 117 N.J. at 387-88. Moreover, a variance for expansion of a nonconforming use based on aesthetic considerations ordinarily will be granted only if the expansion is "minor." See id. at 393; see also Alpine Tower, supra, 231 N.J. Super. at 249.

The Storinos' proposed expansion of their parking lot cannot be characterized as simply a "minor" expansion of the pre-existing nonconforming use because it will nearly double the number of vehicles that can be parked on the property from twenty-five to forty-seven. Furthermore, even though the Storinos propose to make some relatively insignificant aesthetic improvements to the property, such as planting trees and shrubbery on the periphery of the property, the aesthetic benefits of these improvements would be far outweighed by the negative visual impact of parking an additional twenty-two vehicles on a less than one-third acre site. Therefore, the Board erred in concluding that aesthetic improvement constituted a special reason justifying the grant of a use variance for expansion of the Storinos' parking lot.

The Storinos argue, as an alternative ground for upholding the use variance, that the increased parking the expanded lot will provide is a "special reason" within the intent of N.J.S.A. 40:55D-70(d)(2). However, we question whether the Board viewed this as a special reason. One of the Board members who voted to grant the variance stated during the Board's deliberations that "I don't know [that] roughly 22, 21 or 20 additional cars is going to make . . . that much of an impact." Another Board member indicated that the grant of a use variance for the expansion of the Storinos' parking lot would be "[a] very small step . . . in the right direction" of easing the municipality's parking and traffic congestion problems in the boardwalk area. The Board's memorializing resolution made an ambivalent finding that "[t]wenty additional cars did not make a substantial difference to this location and neighbors; but the increase in parking is needed." However, the resolution did not conclude that providing additional parking was a "special reason" justifying the grant of a use variance.

Moreover, even if the Board had reached that conclusion, it would be inconsistent with cases holding that the mere fact that an expansion of a nonconforming use may serve some public purpose does not constitute a special reason justifying a use variance. See, e.g., Kohl, supra, 50 N.J. at 277-80; Wajdengart v. Broadway-Thirty-Third Corp., 66 N.J. Super. 346, 352-53 (App. Div. 1961); Suesserman v. Bd. of Adjustment of Newark, 61 N.J. Super. 28, 33-35 (App. Div. 1960), certif. denied, 38 N.J. 183 (1962). In Wajdengart, we rejected an argument, similar to the one advanced by the Storinos, that the need for additional off-street parking was a special reason justifying a use variance:

Manifestly, every variance which will tend to lessen congestion in the streets and hence somewhat promote the general welfare cannot be considered as justified under the "special reasons" criteria. . . . Nobody disputes the proposition that off-street parking eliminates some cars from the streets and hence tends to lessen congestion and promote the general welfare. At some point, however, the contribution to the lessening of congestion and traffic hazards and the promotion of the general welfare become de minimis. . . . Consequently, a variance for off-street parking is not per se justified merely because the board of adjustment finds that off-street parking will decrease congestion and hence promote the general welfare . . . . We must in each case examine the evidence supporting the finding and determine whether in light of all the relevant circumstances there exists a "special reason" to grant the variance. The extent of the benefit conferred upon the public by the off-street parking must be examined. If the benefit is non-existent or de minimis, a "special reason" may not exist; if, however, the findings or the evidence indicate that the benefit conferred upon the surrounding area clearly preponderates in favor of the variance, the variance should be granted.

[66 N.J. Super. at 352-53.]

In this case, the addition of twenty-two more parking spaces in the boardwalk area would have a negligible impact upon the availability of parking and the reduction of traffic congestion in Point Pleasant Beach. On the other hand, this expansion of the existing nonconforming parking lot to encompass virtually the entire property owned by the Storinos would create a substantial discordancy between this use and the residential zoning of the district in which it is located. Therefore, we conclude that this limited additional parking does not constitute a special reason justifying the variance.

We conclude for similar reasons that the Storinos application did not satisfy the negative criteria for the grant of a use variance; that is, that the variance can be granted "without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70; see Medici v. BPR Co., 107 N.J. 1 (1987). The current zoning ordinance regulating land uses in the area where the Storinos' property is located not only limits the permitted uses to public schools and playgrounds, residential, related accessory uses and real estate offices, but also places limitations upon the intensity of those uses. Those limitations include only 35% lot utilization, which the Storinos proposed expansion of their parking lot blatantly violates by the planned utilization of 100% of the property for parking. It seems unlikely that the Board would grant a variance for 100% or close to 100% utilization of a lot for a permitted residential use. Consequently, the Board's authorization for such overutilization of the property for a nonconforming use would "substantially impair the intent and purposes of the zone plan and zoning ordinance." It is also clear from the testimony presented by the many objectors before the Board that this nearly 100% utilization of the property will have a substantial adverse effect upon the living conditions of persons living in the area, and consequently, would be a "substantial detriment to the public good."

Accordingly, we affirm the part of the final judgment that upheld the Board of Adjustment's determination that the use of the subject property as a commercial parking lot for twenty-five vehicles is a valid nonconforming use; we reverse the part of the judgment that upheld the Board's decision granting a use variance for the expansion of the parking lot.

 

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A-4626-04T5

July 12, 2006