JOSEPH SIGISMONDI, SR., et al. v. CITY OF VENTNOR PLANNING BOARD, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5305-04T55305-04T5

JOSEPH SIGISMONDI, SR., and

JOSEPH SIGISMONDI, JR.,

Plaintiffs-Appellants,

v.

CITY OF VENTNOR PLANNING BOARD,

and IAN HARTLEY, LLC,

Defendants-Respondents.

_____________________________________

 

Argued May 22, 2006 - Decided June 8, 2006

Before Judges Fall, C.S. Fisher and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. ATL-L-3701-04.

Joseph D. Dinoto argued the cause for appellants (Mr. Dinoto, on the brief).

Stanley L. Bergman, Jr., argued the cause for respondent City of Ventnor Planning Board (Brown & Bergman, P.A., attorneys; Mr. Bergman, on the brief).

Christopher M. Baylinson argued the cause for respondent Ian Hartley, LLC (Perskie Nehmad & Perillo, P.C., attorneys; Mr. Baylinson, on the brief).

PER CURIAM

In this appeal, we review the trial judge's rejection of plaintiffs' claim that the City of Ventnor Planning Board (board) arbitrarily and capriciously granted the subdivision application of defendant Ian Hartley, LLC (Hartley). Because we agree that the board acted reasonably, we affirm substantially for the reasons set forth in Judge Valerie H. Armstrong's oral decision. We also reject plaintiffs' contention that Judge Armstrong abused her discretion in denying their motion for the pro hac vice admission of an out-of-state attorney.

I

Hartley is the owner of lots 7 and 7.01 in block 166 in Ventnor's R-7 zone, where single family homes are a permitted principal use. Lot 7 abuts lot 7.01, which is actually submerged in the bay. As depicted in a survey contained in the record, lot 7 has 89.73 feet of frontage along Princeton Avenue to the south, 63.64 feet on the bayside to the west (the side which abuts lot 7.01), 102 feet along the northern side (the side which abuts lots 8 and 9), and 62.50 feet on the eastern side (which abuts lot 6). Lot 7 consists of 5,991.56 square feet, and is presently unimproved with the exception of a one-story frame structure which, if Hartley's project is permitted, will be demolished.

Hartley submitted an application seeking minor subdivision approval. As originally envisioned, Hartley's application sought numerous variances in order to subdivide lot 7 into three single family lots, with two lots fronting the bay and a third lot on the upland end fronting Princeton Avenue. In this original application, one of the bayside lots would not abut a street; access to that lot was proposed through the creation of an easement across the other waterfront lot to Princeton Avenue.

When Ventnor's municipal engineer expressed concerns about this proposal, Hartley made changes. Its amended application again proposed three lots, but this time with all three lots facing Princeton Avenue. With this amended application, the easement was rendered unnecessary and the number of variances required was significantly reduced. As explained at the hearing by Hartley's professional engineer, two of the three proposed subdivided lots required no variances, and the proposed third lot on the bayside required only two variances.

The first of the two variances required concerned the width of the proposed bayside lot. Hartley's expert testified that the proposed bayside lot is unusually shaped, and that a variance is required because one side is only 28 feet long, slightly less than the 32 foot width required by ordinance. It is noteworthy that the width of the opposite side of this proposed lot is 38 feet, well in excess of what the ordinance required.

The second requested variance concerned the total square footage of the lot. Hartley's expert testified that no variance was actually required because, as part of the application, Hartley proposed to replace the existing dilapidated bulkhead with a new bulkhead that would extend an additional 18 to 24 inches into the bay. Once this new bulkhead was in place, the lot area of the third proposed lot would increase from a few feet short of the 2,000 square feet required by ordinance to 2,087 square feet. The expert testified that the lot area variance was sought merely as a precaution because, until such time as the project was completed, the third lot would be slightly less than 2,000 square feet.

Hartley's expert testified that the proposed plan constituted an improvement and an aesthetic upgrade of the property, since the lot presently was vacant except for a single blighted structure. Hartley's plan included landscaping, new curbing and sidewalks, a new bulkhead, docks and boat slips. He also testified that Hartley's amended plan, with three lots fronting Princeton Avenue, provided for lots the sizes of which were consistent and harmonious with the remainder of the neighborhood.

The municipal engineer also testified. He expressed his reservations for the earlier plan, but confirmed that the plan as revised followed the existing development pattern of the area and met the intent and purpose of the zoning regulations, stating: "I think that you have to look at the developmental pattern of the area. And along Princeton Avenue if you look at the tax map, Lots 2, 3, 4, and 5, and 6, which is immediately adjacent to [lot 7], are all indicated as 30 foot wide lots." Indeed, the tax map reflects that the majority of lots in this immediate area are of similar size and width as those proposed by Hartley. The municipal engineer confirmed that with the replacement of the bulkhead, the lot area requirement would be met for the proposed bayside lot and that, in fact, this approach had been taken by the board with regard to other properties in Ventnor.

Plaintiffs, the owners of nearby properties, argued that three homes on lot 7 would unnecessarily increase the area's density.

At the conclusion of this hearing, the board approved Hartley's application by a vote of four to two. It found, as stated in its resolution, that the three proposed lots fronting Princeton Avenue were "very much consistent with both the developing patterns in this general neighborhood as well as the historical development of this portion of the City based upon the [b]oard's familiarity with this particular neighborhood." As for the size of the bayside lot, the board recognized that with the replacement of the bulkhead, the property would exceed 2,000 square feet and, therefore, obviated the need for a variance. The board viewed the minor difference between the proposed width of the bayside lot on one of its sides and what was required by ordinance to be de minimus, and that a variance "is justified in order to develop this property with a pattern that is consistent with the established neighborhood pattern." The board also recognized that

the lot width variance is one that is brought about by the irregular configuration of this particular parcel of land. Due to the angle of the bulkhead at this location, lot width at the front setback is decreased while lot width at the rear property line far exceeds what is required by [o]rdinance. . . . [The bayside lot] has a lot width of 28 feet at the front setback, but an average lot width of 33 feet [because it is 38 feet wide along the rear lot line]. As such the [b]oard finds that there is a certain hardship with respect to the lot width variance because of the particular configur-ation of the subject property and that the average lot width of [the bayside lot] actually exceeds [o]rdinance requirements.

II

Plaintiffs sought reversal of the board's determination by filing a complaint in lieu of prerogative writs in the Law Division. On March 31, 2005, Judge Armstrong denied plaintiffs' motion for the admission pro hac vice of a Pennsylvania attorney. After hearing the arguments of counsel, the judge ruled against plaintiffs on the merits on May 3, 2005; final judgment was entered on the same day.

Plaintiffs filed a timely notice of appeal, and presented the following arguments for our consideration:

I. WAS THE DECISION OF THE VENTNOR CITY PLANNING BOARD ON OCTOBER 13, 2004, GRANTING A REQUEST FOR SUBDIVISION WITH A "C" VARIANCE, ARBITRARY, CAPRICIOUS AND UNREASONABLE?

A. DID THE APPLICANT SATISFY THE POSITIVE CRITERIA FOR GRANTING A "C" VARIANCE?

B. DID THE APPLICANT SATISFY THE NEGATIVE CRITERIA FOR GRANTING A "C" VARIANCE?

C. DID THE PLANNING BOARD PROPERLY TAKE INTO ACCOUNT THE THREE DOCKS WHICH WOULD HAVE TO BE CONSTRUCTED IN A LIMITED AREA ALONG THE BAY FOR THE THREE NEW SUBDIVIDED PROPERTIES?

II. IN LIGHT OF THE SUBSTANTIAL COMMUNITY OPPOSITION TO THE SUBJECT APPLICATION, SHOULD THE ENTIRE BOARD HAVE HEARD THE SUBJECT APPLICATION, RATHER THAN THE SIX MEMBERS WHO WERE PRESENT?

III. DID THE HONORABLE TRIAL JUDGE ERR IN DENYING THE APPLICATION OF SIMON J. ROSEN, ESQUIRE TO BE ADMITTED PRO HAC VICE ON BEHALF OF THE PLAINTIFFS-APPELLANTS?

In addition, plaintiffs argued in their reply brief that the board abused its discretion in ruling upon the application because inadequate notice was given to the community regarding the amended application.

We conclude that the argument contained in Point II is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We will not consider the merits of the notice argument raised by plaintiffs, for the first time, in their reply brief. A party is obligated to present a brief which divides the arguments under appropriate point headings and "into as many parts as there are points to be argued." R. 2:6-2(a)(5). Because plaintiffs failed to assert this notice issue in a separate point in their initial brief, as required by rule, we deem the argument to have been abandoned. See DeSoto v. Smith, 383 N.J. Super. 384, 395 n.1 (App. Div. 2006); Dougherty v. N.J. State Parole Bd., 325 N.J. Super. 549, 553 (App. Div. 1999), certif. denied, 163 N.J. 77 (2000); Almog v. ITAS, 298 N.J. Super. 145, 155 (App. Div. 1997), app. dis., 152 N.J. 361, cert. denied sub nom., Ziemke v. Almog, 525 U.S. 817, 119 S. Ct. 55, 142 L. Ed. 2d 42 (1998).

We also reject the arguments contained in Points I and III for the following reasons.

A

In weighing the merits of the arguments presented by the parties, Judge Armstrong reviewed the applicable legal principles and correctly observed, among other things, that she was obligated to defer to the board's determination so long as it was supported by credible evidence in the record. In these circumstances, courts should recognize that "municipal bodies are composed of local citizens who are far more familiar with the municipality's characteristics and interests," and, therefore, are "uniquely equipped to resolve such controversies." First Montclair Partners L.P. v. Herod Redevelopment I, L.L.C., 381 N.J. Super. 298, 302 (App. Div. 2006) (citing Ward v. Scott, 16 N.J. 16, 23 (1954); Charlie Brown of Chatham v. Chatham Bd. of Adj., 202 N.J. Super. 312, 321 (App. Div. 1985)). Consequently, decisions of local bodies in this context should not be upset unless they are arbitrary, unreasonable or capricious. Chirichello v. Zoning Bd. of Monmouth Beach, 78 N.J. 544, 559 (1979); First Montclair, supra, 381 N.J. Super. at 302.

In approaching plaintiffs' contentions in this fashion, Judge Armstrong discussed the nature of Hartley's application and the board's determination in the following way:

The board concluded that the two variances at issue in this matter were justifiable under both the C-1 hardship standard and the C-2 flexible . . . standard. . . .

A review of the resolution adopted by the board indicates that the resolution was well prepared. It is clear that the board found the testimony of [Hartley's expert] to be credible and sufficient to support the granting of the variances both as to C-1 and C-2. The resolution does not merely spout or regurgitate the statutory language set forth in the Municipal Land Use law as to the positive and negative criteria but, rather, sets forth the evidence as produced in the record to support both the positive and negative criteria.

It is clear from the record that the board was well aware of the options for the use of this property. It was aware . . . that the property could've been left as one lot on which could've been constructed perhaps one behemoth home with a lot area that would've been approximately three times the required minimum. They were aware of the possibility of a two-lot by-right subdivision, which could've been a pro forma situation without variances, and they obviously were aware of the possibility of permitting the subdivision into three lots, which is what was approved here by the board.

[I]t is clear that the board viewed the two variances at issue here to be de minimis [sic]. And, in fact, as I indicated earlier[,] the board recognized the actual need for a variance for lot area in effect disappears with the construction of the new bulkhead, at which point the lot area for [the bayside lot] would exceed the minimum required 2,000 feet. The lot width variance of approximately two and a half feet, taking into account the construction of the new bulkhead, the board viewed, and rightfully so, as being de minimis [sic], particularly when considering that this variance was on the lot that bordered the water and would not be perceptible to . . . passers-by.

It is clear in granting the application that the board considered a host of factors in concluding that . . . Hartley met the positive and negative criteria either for C-1 or a C-2 variance. The board considered such issues, although not necessarily limited to these issues, but such issues as the irregular shape of the property, density issues, light, air and open space issue, the character of the surrounding neighborhood, the consistency of the project with the developing patterns in the general neighbor-hood, the rejuvenation of the neighborhood, aesthetics and the zone plan and zoning ordinance and so on and so forth.

There is nothing to suggest further that the revised proposal which the board considered and granted merely because it was an improvement over the initial plan, which, as we know, the municipal engineer had a lot of problems with.

Reducing this to the . . . simplest level, there is nary a hint in the board's decision of arbitrariness, capriciousness or unreasonableness. It is eminently sustain-able based upon the record created before the board. The board did not abuse its discretion. And for all the foregoing, the decision of the board is hereby affirmed.

We agree that there was sufficient credible evidence from which the board could conclude that the lot area variance was unnecessary and that the granting of the lot width variance was authorized by N.J.S.A. 40:55D-7(c)(2). We affirm substantially for the reasons set forth in Judge Armstrong's oral decision, insofar as she held that the board's application of N.J.S.A. 40:55D-7(c)(2) was correct in light of the facts found by the board and, thus, was entitled to the court's deference. See Kaufmann v. Planning Bd., Warren Twp., 110 N.J. 551, 563 (1988).

B

We also reject plaintiffs' argument that the judge mistakenly entered the March 31, 2005 order, which denied their motion for the admission pro hac vice of a Pennsylvania attorney, for two reasons.

First, we observe that plaintiffs failed to take a necessary step in securing our review of the March 31, 2005 order by omitting any reference to that order in their notice of appeal. R. 2:5-1(f)(3)(i) requires that an appellant "shall designate" in the notice of appeal the judgment or order appealed from. We do not review orders that are not designated in the notice of appeal. See 1266 Apt. Corp. v. New Horizon Deli, 368 N.J. Super. 456, 459 (App. Div. 2004); Fusco v. Bd. of Educ., Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002); Campagna v. American Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001); Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994). Since the notice of appeal made no mention of the March 31, 2005 order, we deem plaintiffs' quarrel with that order to have been abandoned.

Second, even if plaintiffs had sought our review of the March 31, 2005 order in the manner required by R. 2:5-1(f)(3)(i), we would reject their argument on its merits. In a written opinion, Judge Armstrong held that the motion failed to present a sufficient reason for permitting this Pennsylvania attorney to appear for plaintiffs, since the claim that the out-of-state attorney had an attorney-client relationship with plaintiffs, which extended to his having a particular "familiarity" with the properties at issue, was not adequately explained. Judge Armstrong observed also that

[n]o detail has been provided regarding the actual length of the relationship, the nature of the relationship, the subject matter of the relationship or under what circumstances [the out-of-state attorney] acquired his familiarity with the proper-ties. R. 1:21-2 contemplates something more than a broad general assertion that an extended attorney-client relationship ex-ists, particularly when considering the specific nature of the instant litigation. The instant litigation seeks the reversal of a local land use board's decision involving Hartley's property. The court's review will be confined to the record created before the [b]oard and a determination as to whether based upon that record the [b]oard's decision was arbitrary, capricious, or un-reasonable. There will be no discovery, no new evidence, and no testimony taken.

This determination represents a sensible application of R. 1:21-2, as that rule has been interpreted in our decision in Feriozzi Concrete Co. v. Mellon Stuart Co., 229 N.J. Super. 366 (App. Div. 1988), which Judge Armstrong carefully considered and correctly applied.

As a result, although we deem plaintiffs' failure to designate the March 31, 2005 order in their notice of appeal as constituting an abandonment of this argument, we also reject plaintiffs' arguments regarding the March 31, 2005 order substantially for the reasons set forth by Judge Armstrong in her written opinion.

Affirmed.

 

A more precise geographical description would indicate that this side faces in a southeasterly direction; our labeling of the other sides of the property are similarly inaccurate. We have referred to these sides as being to the north, south, east and west for convenience only.

(continued)

(continued)

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A-5305-04T5

June 8, 2006