RICHARD G. FERNICOLA v. PLANNING BOARD OF THE BOROUGH OF ALLENHURST

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2860-07T32860-07T3

RICHARD G. FERNICOLA,

Plaintiff-Appellant/

Cross-Respondent,

v.

PLANNING BOARD OF THE BOROUGH

OF ALLENHURST,

Defendant-Respondent,

DAVID BEYDA and

ROCHELLE BEYDA,

Defendants-Respondents/

Cross-Appellants.

 

Argued March 10, 2009 - Decided

Before Judges Winkelstein, Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-4557-06.

Ronald S. Gasiorowski argued the cause for appellant/cross-respondent (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the brief).

Donald L. Beekman argued the cause for respondent, Planning Board of the Borough of Allenhurst (Beekman & Beekman, attorneys; Mr. Beekman, on the brief).

Hussam Chater argued the cause for respondents/cross-appellants (Ansell Zaro Grimm & Aaron, attorneys; Mr. Chater, on the brief).

PER CURIAM

Defendants, David and Rochelle Beyda (collectively, Beyda), own a home in Allenhurst. Plaintiff appeals from the Planning Board's approval of defendants' application to convert a portion of their existing two-car garage to a pool house. Beyda cross-appeals from the Board's decision that a use variance was required for the proposed pool house. In a January 22, 2008 order, the trial court affirmed the Board's approval of Beyda's application. We agree and affirm, which renders Beyda's cross-appeal moot.

On February 3, 2005, Beyda applied to the Board for use and bulk variance approval to construct a swimming pool, convert their existing garage to a pool house, and construct a new garage and covered porch on their property. The Board heard the application on March 16, 2005. At that hearing, Beyda presented testimony of architect Stephen Carlidge. Because Beyda's planner, James Higgins, was unavailable to testify at the hearing, the hearing was adjourned. In response to concerns from the Board and the public regarding the construction of a new garage in addition to the converted pool house on the property, Beyda offered to present an alternative plan that would not include a new garage.

Over a year passed before Beyda returned to the Board, submitting a revised application. The meeting was scheduled for May 17, 2006. Notice of that meeting was published in the local newspaper on May 5, 2006, and it was duly served on all property owners within 200 feet of Beyda's property. The notice, however, inaccurately stated the date of the meeting as May 17, 2005, rather than May 17, 2006.

The notice described Beyda's proposed construction:

Applicant proposes to convert an existing two-bay garage into a one-bay garage with the remaining area to be used as an accessory recreational area which will include a bathroom, sink, dishwasher and refrigerator. In addition, Applicant seeks to construct a swimming pool and covered porch on the rear of the existing dwelling.

In their revised application, rather than converting the entire existing garage to a pool house and constructing a new garage, Beyda proposed to keep the existing garage and convert a portion of it to a pool house/cabana area. The revised application also sought an interpretation, pursuant to N.J.S.A. 40:55D-70(b), that the municipal land use ordinance permits a pool house or cabana as an accessory use to an existing, single-family home. In the alternative, should the Board determine that a pool house was not a permitted accessory use, the application requested a use variance, in addition to bulk variance relief from side and rear yard setbacks.

On May 17, 2006, Beyda appeared before the Board; however, because the Board lacked a quorum, the application was adjourned to the next regularly scheduled meeting, June 21, 2006. The Board announced the adjournment and did not require that Beyda send new notices. On June 21, 2006, Beyda again appeared before the Board. At Beyda's request, the Board announced that the application would be carried to its July 21 meeting.

On July 11, 2006, Beyda's attorney wrote a letter to the Board confirming the Board's consent to continue the application to the August 16, 2006 meeting. The Board did not request Beyda to give further notice, and, none was given. When the application was not heard on July 21, the Board failed to announce that it was adjourned to the August meeting.

When the Board heard the application on August 16, 2006, the Board's attorney instructed the Board that it was a new application, and the Board should not consider the testimony from the 2005 meeting because some members of the Board were not present at that meeting.

The first issue at the meeting was whether Beyda required a use variance. Carlidge explained Beyda's proposal to construct a pool and enhance the use of that pool by converting a portion of the existing two-car garage to a pool house. The proposed pool house consisted of a full bathroom, a counter space with sink, and a refrigerator. Higgins testified that from a planning perspective, Beyda's proposed use of the existing garage as a recreational pool house is "customarily, habitually or reasonably associated with the principal use of the property." He explained that the proposed accessory use was not solely a function of the swimming pool use, but was designed to accommodate the overall recreational use of the property.

The Board's attorney opined that a use variance was required because the pool house would not be an accessory use to the single family home; rather, it would be an accessory use to the swimming pool. Consequently, the Board voted that a use variance would be required.

Accordingly, Beyda proceeded to present evidence in support of a use variance. Higgins testified that Beyda's application presented special reasons for granting a use variance. First, the site is particularly suited for the proposed pool house because it consists of an existing structure large enough that even after the renovation, it "could still be utilized as a one car garage and also be utilized as a recreational area, and it's situated such that it doesn't have any negative impact on the surrounding properties." He said that the existing location is well-suited for the pool house because it is directly adjacent to a pool and patio area on an adjacent lot, screened from view from other properties with trees on either side.

Next, Higgins testified that the proposed use presents a desirable visual environment by improving and restoring the deteriorating garage, including substantial landscaping improvements. He claimed that the pool house provides recreational use in an "appropriate location" and "enhances the residential use of the property." He also asserted that granting the application would result in a positive impact because activities such as barbeques and showering that might normally occur outside would occur in the pool house.

Plaintiff, who does not live within 200 feet of the property, opposed the application. He argued that the proposed pool house would result in a negative impact because approval of such uses would intensify the recreational use of back yards. Plaintiff further observed that a municipal beach club was available for residents who wished to enjoy swimming recreation. Plaintiff did not present any expert testimony.

The Board unanimously voted to approve the use and bulk variances. It adopted a memorializing resolution on September 20, 2006, finding that:

2. The Applicants have demonstrated that the purposes of the Municipal Land Use Law and the Development Ordinance of the Borough of Allenhurst would be advanced by the deviation from the Zoning Ordinance requirements at issue in this case and further, that the benefits of any deviation would substantially outweigh any detriment resulting from a grant of the relief requested in the within application.

3. The Board further finds that the granting of the bulk variance requested by the Applicants to allow the garage and pool house structure to remain where it is presently located is appropriate and does not have a negative impact on the Municipal Land Use Law or the Borough of Allenhurst Development Ordinance and that it is the most appropriate location for this structure and accordingly, will grant a variance from the 25' requirement for any accessory uses other than a garage and will allow a 2.5' setback for this structure.

4. Based upon the aforesaid findings of fact, the Board further concludes that the granting of the approval set forth herein will not create an undue burden on the owners of the surrounding properties, and there will not be a substantial detriment to the public good, nor will there be a substantial impairment to the intent and purpose of the zone plan and the zoning ordinance.

The Board based its findings on the uncontradicted testimony of Beyda's professionals that the site is particularly suited for the proposed use, the proposed plan creates a more desirable visual environment, and that it would be an appropriate use in an appropriate location "because of its orientation to the pool." The Board also relied on the uncontradicted testimony of Beyda's professionals that there would be no negative impact to adjacent properties because the pool equipment would be stored inside the pool house to eliminate additional noise; and, activities that might normally occur outside could occur inside the pool house to minimize their effect on neighboring property owners.

In his complaint in lieu of prerogative writs challenging the Board's decision, plaintiff claimed that the Board lacked jurisdiction to hear the application because notice was not provided for the hearing in accordance with the Municipal Land Use Law, N.J.S.A. 40:55D-1 to-112 (MLUL). Plaintiff also claimed that the Board failed to make adequate findings to support the grant of a use variance; and that the Board erroneously relied on evidence outside the record, that is, evidence from the 2005 Board hearing. The trial court rejected those arguments.

We first address plaintiff's notice arguments. Notice of a public hearing must be given for development applications seeking variance relief at least ten days prior to the date of the hearing. N.J.S.A. 40:55D-12. Notice must be "by publication in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality." N.J.S.A. 40:55D-12a. An applicant must provide notice to all owners of property located within 200 feet of the property that is the subject of the hearing by either personal service or certified mail. N.J.S.A. 40:55D-12b. The notice must state: (1) the date, time and place of the hearing; (2) the nature of the matters to be considered; (3) identification of the property proposed for development; and (4) location and times at which any maps and documents for which approval is sought are available. N.J.S.A. 40:55D-11.

The purpose of providing notice under the MLUL is to apprise members of the public of the nature and character of the proposed development so that "they may make an informed determination as to whether they should participate in the hearing or, at the least, look more closely at the plans and other documents on file." Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 237-38 (App. Div. 1996). The critical element of such notice is an accurate description of the proposed use of the property. Id. at 238. The information contained in the notice must inform the public of the nature of the application "in a common sense manner such that the ordinary layperson could intelligently determine whether to object or seek further information." Id. at 239.

Plaintiff alleges that notice of Beyda's application was defective for two reasons; first, because the notice published for the May 17, 2006 hearing inaccurately stated the year of the hearing date as 2005 rather than 2006. We reject this argument. A typical layperson could determine that 2005 was merely a typographical error because the notice was published on May 6, 2006. Beyda's notice accurately and sufficiently informed the public of the nature of the application to convert an existing two-car garage into a one-car garage and pool house. The notice explained in a common sense manner the proposed development so that a layperson could determine whether to object or seek further information.

Plaintiff next argues that notice was deficient because the Board failed "at the June hearing to advise that the Beyda matter was adjourned to yet another hearing date of August 16th." In cases where a hearing is commenced by a municipal board but not completed on the same day and continued to another day, usually the next regularly scheduled board meeting, the chairperson should announce to all those present the date, time and place to which the hearing on the matter is continued. Cox, New Jersey Zoning and Land Use Administration, 612 (Gann 2008). If this is done, no further notice need by given by the applicant, unless the matter is continued to a special meeting. Ibid.

Here, the Board did advise those present at the June meeting that the Beyda application would be continued to the next regularly scheduled meeting in July. The Board failed, however, to advise those present at the July meeting that the application would be adjourned to the August meeting. This was error. Not all errors, however, warrant reversal. DeMaria v. JEB Brook, LLC, 372 N.J. Super. 138, 146 (Law Div. 2003). A board's decision should not be overturned if substantial justice was in fact achieved notwithstanding the board's error. Ibid. It is only when the error has the potential to impact upon a fair result that reversal is required. Ibid. Moreover, when an objector appears at a meeting, makes no objection to lack of proper notice, and has a full opportunity to contest the merits of the application, the objector has waived his right to subsequently challenge any alleged defects in the notice. Bd. of Comm'rs of Nutley v. Ernst, 123 N.J.L. 373, 376 (E. & A. 1939); Izenberg v. Bd. of Adjustment of Paterson, 35 N.J. Super. 583, 588 (App. Div. 1955).

Under the totality of the circumstances, we conclude that the failure to announce that the application was adjourned to the August meeting does not require a reversal of the Board's decision. The record does not suggest that the Board's failure to advise those present at the July 2006 meeting of the adjournment of Beyda's application had the potential to impact upon a fair result. At the prior 2006 meetings, for which notice had been properly given, no one appeared to contest the application. When plaintiff appeared, he was afforded a full opportunity to express his views. He questioned Beyda's witnesses and made a statement on the record expressing his objection to the application. He did not, however, object to the lack of notice.

Plaintiff claims that he attends planning and zoning board hearings regularly. If he believed the lack of notice impacted upon the fairness of the hearing, he should have requested a continuance. He did not do so. He cannot now raise an issue that he should have raised at the time of the hearing because he does not like the Board's decision. He has waived his opportunity to object to the alleged defect in notice.

We turn next to whether the Board's decision was arbitrary, capricious or unreasonable. Both the trial court and this court apply this same standard when reviewing the decision of a municipal land use board. New York SMSA v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). The board's factual determinations are presumptively valid and the issue for the court is whether the board's decision is "supported by the record and is not so arbitrary, capricious or unreasonable as to amount to an abuse of discretion." Ocean County Cellular Tel. v. Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 521-22 (App. Div.), certif. denied, 175 N.J. 75 (2002). We do not substitute our judgment for the Board's. Fallone Prop., L.L.C. v. Bethlehem Plan. Bd., 369 N.J. Super. 552, 561 (App. Div. 2004).

A municipal board is "entrusted with the sound discretion to determine whether an applicant has met the statutory criteria to obtain a variance." Nextel of New York, Inc. v. Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 37-38 (App. Div. 2003). And, although use variances should be granted sparingly and greater deference is ordinarily given to a denial of a variance than to a grant, see Med. Ctr. at Princeton v. Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001), a court's review of a grant of a variance is still limited to whether the municipal authorities could reasonably have concluded from the evidence that a special reason existed and that the negative criteria for granting a variance have been satisfied. Burbridge v. Mine Hill, 117 N.J. 376, 385 (1990).

"Due to its 'peculiar knowledge of local conditions,' a municipal board must be afforded wide latitude in the exercise of its delegated discretion." New York SMSA, supra, 370 N.J. Super. at 331 (quotation omitted). "Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of a clear abuse of discretion by the public agencies involved." Medici v. BPR Co., 107 N.J. 1, 15 (1987) (quotation omitted).

Against this standard of review, we first address plaintiff's argument that Beyda failed to establish special reasons to support the granting of a use variance for the pool house. A board of adjustment may grant a variance "[i]n particular cases for special reasons . . . to permit . . . a use or principal structure . . . in a district restricted against such use or principal structure[.]" N.J.S.A. 40:55D-70d. The statute requires proof of both positive and negative criteria. Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 156 (1992). Under the positive criteria, the applicant must establish "special reasons" for the grant of the variance. Ibid. The negative criteria require proof that the variance "can be granted without substantial detriment to the public good" and that it "will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." Ibid.

With respect to the positive criteria, special reasons may be shown based on proof that the application advances any one of the zoning purposes listed under N.J.S.A. 40:55D-2. Burbridge, supra, 117 N.J. at 386. Those purposes include the promotion of the general welfare, a desirable visual environment, and "to provide sufficient space in appropriate locations for a variety of" both public and private residential and recreational uses. N.J.S.A. 40:55D-2a, g, i. A proposed use may also satisfy the positive criteria if the proofs demonstrate that it is "peculiarly fitted to the particular location for which the variance is sought." Burbridge, supra, 117 N.J. at 386 (quoting Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 279-80 (1967)).

Each of the listed purposes of the MLUL may support an application for a use variance. Cox, supra, at 167. The proofs in this case focused on the zoning purposes set forth in N.J.S.A. 40:55D-2g and -2i:

g. To provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space, both public and private, according to their respective environmental requirements in order to meet the needs of all New Jersey citizens;

. . . .

i. To promote a desirable visual environment through creative development techniques and good civic design and arrangements[.]

Based on the uncontradicted testimony of Beyda's professionals, the Board could have reasonably concluded that special reasons existed to support the grant of the use variance. Beyda's planner, Higgins, testified that the renovations to the garage would provide significant aesthetic improvement to the existing structure, thus providing a more desirable visual environment. One existing garage door would be replaced with a new, wooden garage door; the other garage door would be removed completely and replaced with a new window; and the entire structure would be finished with new wood siding, having an appearance more similar to "prior history."

Higgins also testified that the pool house would provide a recreational use in an appropriate location, enhancing the overall use of the property as a single-family residence. The property consists of an existing two-story, two-car garage that would provide the appropriate space and location, without the need for a new structure, for the proposed recreational use. Higgins testified that the existing location of the structure is particularly suitable for the pool house because it does not have a negative impact on the surrounding properties; it is "situated directly adjacent to a pool and patio area on the adjacent area, screened from view from properties with trees on either side." This evidence supported the Board's conclusion that special reasons existed to grant the use variance.

Plaintiff also contends that Beyda failed to satisfy the negative criteria for a use variance. We disagree.

To satisfy the negative criteria, the applicant must show that (1) the variance can be granted without substantial detriment to the public good, and (2) it will not substantially impair the intent and purpose of the zone plan and zoning ordinance. N.J.S.A. 40:55D-70d. The first prong of the negative criteria focuses on the variance's effect on the surrounding properties. Medici, supra, 107 N.J. at 22-23 n.12. The board must evaluate the impact of the proposed use upon adjacent properties and determine whether it will cause such damage to the character of the neighborhood as to constitute "substantial detriment to the public good." Ibid. The key word is "substantial[ ]." Yahnel v. Bd. of Adjustment of Jamesburg, 79 N.J. Super. 509, 519 (App. Div.), certif. denied, 41 N.J. 116 (1963). Under the second prong of the negative criteria, the applicant's proofs and the board's findings must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district. Medici, supra, 107 N.J. at 21.

The record supports the Board's conclusion that the negative criteria have been satisfied. No adjoining landowners appeared at the hearing to object. The only objector was plaintiff, who does not live near the property, and who generally objected to the use of pools on private property, suggesting that citizens who wish to swim should use the local beach club. The testimony established that pool equipment that might increase noise levels would be located in the pool house, and that social gatherings that might otherwise take place outside could be held inside the pool house to minimize the impact on neighbors. There is no evidence that the pool house would cause "substantial detriment to the public good."

Further, on the facts presented, the proposed use of a portion of the existing garage as a pool house would not substantially impair the intent and purpose of the zone plan and zoning ordinance, and it can be reconciled with the zoning ordinance's omission of such use from those permitted in the zoning district. A pool is a permitted accessory use in the district. The proposed pool house does not contain living quarters; it consists of a bathroom, counter space with sink, and a refrigerator. It will contain no heating, air conditioning or stereo equipment; the absence of these amenities suggests that the use of the pool house is intended to be limited to a changing and showering area, and an area for food storage and preparation. These uses are not "substantially" incompatible with a garage function, which under the Borough's ordinance, contemplates the storage of "equipment and items ancillary to the occupancy of [the] dwelling."

In sum, the Board's conclusion that the positive and negative criteria had been satisfied is not arbitrary, capricious or unreasonable.

Plaintiff asserts that the Board's resolution did not set forth sufficient findings of fact to support the decision. Although we agree that the findings should have been more comprehensive, the record fully supports the Board's decision.

Plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). And, as we have indicated, because we affirm the Board's grant of Beyda's application, that renders moot Beyda's argument that a use variance was not required.

Affirmed. The cross-appeal is dismissed.

Pursuant to N.J.S.A. 40:55D-25, the Board is a joint board with the same powers and authority as a board of adjustment.

Plaintiff's notice of appeal also states that he is appealing the March 7, 2007, order denying his motion for summary judgment. Because, however, he has failed to address that issue in his brief, his appeal of that order is deemed abandoned. Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2009).

The record is unclear if plaintiff appeared at the prior meetings to object to Beyda's application.

(continued)

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A-2860-07T3

April 7, 2009