KEVIN CHAMBERS v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF NEPTUNE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-003101-07T3A-3101-07T3

KEVIN CHAMBERS,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT

OF THE TOWNSHIP OF NEPTUNE

and 18 ATLANTIC, LLC,

Defendants-Respondents.

_______________________________________________

 

Argued January 14, 2009 - Decided

Before Judges Payne and Lyons.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-417-07.

R.S. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the brief).

Monica C. Kowalski argued the cause for respondent, Zoning Board of Adjustment of the Township of Neptune.

Mark A. Steinberg argued the cause for respondent, 18 Atlantic LLC.

PER CURIAM

Plaintiff, Kevin Chambers, appeals from a January 29, 2008, final judgment of the Law Division dismissing his complaint in lieu of prerogative writs. Plaintiff's complaint had challenged the decision of defendant, Zoning Board of Adjustment of Neptune Township (the Board), granting relief to defendant, 18 Atlantic, LLC. We affirm.

18 Atlantic, LLC is the owner of 18 Atlantic Avenue, Block 27, Lot 383 in Ocean Grove, New Jersey. Situated on this property is a vacant twenty-two-room hotel located in the Historic District Oceanfront Zone (HD-O Zone). The HD-O Zone "recognizes the character and historic land use pattern of the oceanfront blocks in the Ocean Grove portion of the Township.

. . ." It was designed to "protect, preserve and perpetuate the historical framework of Ocean Grove." Single-family homes, bed and breakfasts, and historic hotels are permitted in the HD-O Zone. Multi-family homes are not a permitted use. Moreover, the Township's Master Plan, when discussing the HD-O Zone, states "[t]he conversion of additional transient residential uses to multi-family uses should be prohibited throughout Ocean Grove and particularly in the densely developed Historic District Oceanfront District." Despite this language, the Plan does allow for exceptions, stating "[t]his plan does recognize that unique circumstances may exist along . . . prominent avenues where the preservation and adaptive reuse of a large historic structure is dependent on a mix of uses not envisioned in this plan."

The main structure on Lot 383 is the hotel, a "conditional" use pursuant to the zoning ordinance. The building ranges from three to four stories in height and there is significant fire damage to the hotel, which necessitates a new foundation.

Defendant sought to convert the hotel into four condominium units. However, because multi-family homes are not a permitted use in the HD-O Zone, defendant applied to the Board for variances pursuant to N.J.S.A. 40:55D-70(d) ((d) variances) and N.J.S.A. 40:55D-70(c) ((c) variances), design waivers and site plan approval. Defendant's application, filed on June 15, 2006, proposed to renovate the existing building, which would include some demolition. The plans included new siding, exterior construction, including additional porches, and construction on the fourth level.

The Board scheduled a hearing on defendant's variance applications for July 5, 2006, and defendant provided notice of the hearing to all property owners within two hundred feet of the hotel. The notice identified the property in question, gave the time and location of the hearing, and stated, in pertinent part, that defendant applied:

for a use variance to convert a 22 room hotel into 4 dwelling units with bulk variances as to existing conditions for frontage, width, depth to curb, and side yard setback and other setbacks if applicable, all under minimum, together with site plan approval and such other variances and waivers as shall be required.

The Board held its first hearing on defendant's application on July 5, 2006. However, because Ocean Grove is on the National Register as a historic district, the preservation of buildings and structures in the community is overseen by the Historic Preservation Committee (HPC). Because defendant's proposed renovation involved the demolition of portions of the existing structures, the Board determined that the application could not proceed without the HPC's approval. As such, the Board adjourned the hearing pending defendant's application to the HPC. The HPC approved defendant's proposed renovations on September 12, 2006.

The Board met again on October 11, 2006. At that hearing, defendant presented Mark A. Pavliv, an architect, to discuss the proposed project. Pavliv explained that there was extensive fire damage to the hotel and the building was currently an abandoned "eyesore." He stated that the proposed plan called for demolishing part of the structure and converting the remainder into four condominium units, with a unit on each floor. The bungalow and the garage would be razed and the foundation would also have to be reconstructed in order to support the building. He explained that, while the building was a prime candidate for demolition, defendant's plan called for preserving seventy-five percent of the structure. He also noted that converting the structure into a single-family home would call for complete demolition.

Defendant also presented the testimony of Andrew Janiw, a professional planner. Janiw stated that the proposed plan "contemplates bringing [the structure] into more of the character of the neighborhood. . . ." As such, Janiw opined that the project was "very much on point to the preservation goals spelled out in your master plan." He went on to say: "It's certainly in keeping with the characteristics of the neighborhood and certainly a superior design in term of what's there now and what can be constructed." When the Board questioned him on the plan's impact on the community's population density, Janiw stated "[e]ven if it were 11 hotel units, at some point you can expect on a summer weekend full occupancy potentially of two people per unit of 22 people within those dwelling units," resulting in many more people then a condominium building would ever generate. He later stated "[n]o matter how you cut it, it's a reduction - the intent here is to reduce the intensity of use."

After presenting this testimony, defendant decided to reduce the number of condominium units from four to three. After being informed of this change, the Board voted on and approved the variance applications. Specifically, the Board granted d(1), d(2) and d(3) variances, as well as the required design waivers and bulk variances.

The Board memorialized its findings on December 11, 2006, stating that the proposed condominium units would "achieve a desirable visual environment" pursuant to the "Burbridge case," promote historic conservation and establish appropriate population densities. The Board also found that the renovated structure would show "good civic design" and there would be "no impact on the surrounding uses and all conditions on the property are preexisting."

On January 23, 2007, plaintiff filed a complaint in lieu of prerogative writs against defendant and the Board, claiming defendant failed to present adequate proofs to warrant the Board granting the variances. 18 Atlantic, LLC filed an answer on February 22, 2007, and the Board filed an answer on March 29, 2007.

The trial judge conducted a bench trial on December 4, 2007. In a written opinion, he found that the Board erred when it relied on Burbridge v. Mine Hill Twp., supra, 117 N.J. 376 in finding that the "desirable visual environment" created by renovation warranted the grant of the (d) variances. The trial judge explained that, pursuant to Burbridge, "[a]lthough the general purposes of the zoning law include aesthetics, it is an open question whether aesthetics alone . . . can form the basis of a special reason justifying a variance to expand a pre-existing nonconforming use." Id. at 387. The trial judge noted that the Burbridge Court held when a "new" nonconforming use is the subject of the variance, "ambience alone can seldom be a proper basis for special reasons." Id. at 392. Because defendant is not seeking to expand upon a pre-existing nonconforming use, the trial judge held that, under Burbridge, they "must demonstrate that the proposed use entails more than 'mere beautification' of the present site in order to satisfy special reasons for purposes of securing a use variance."

Nonetheless, the trial judge affirmed the Board's actions, finding that defendant had presented enough evidence, in addition to the improved visual aesthetic of the building, to warrant the variances. This appeal ensued.

On appeal, plaintiff presents the following arguments for our consideration:

POINT ONE

the trial court erred in not finding that the applicant failed to prove and the board failed to find that the grant of the use variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance where the use variance contradicts the purpose of the local zoning plan and master plan and constitutes rezoning and/or amounts to spot zoning and the trial court improperly found that the master plan's provision for uses incompatible with the established zoning was applicable.

1. The Board Did Not Have Authority To Grant The Use Variance And To Do So Constitutes Rezoning And/Or Spot Zoning.

POINT TWO

The trial court's ruling as to special reasons is contrary to the record and there are no findings that the use is particularly suited to the site.

POINT THREE

It was arbitrary and capricious for the board to determine the "c" variances were pre-existing conditionS where the applicant was proposING a new use which mandated greater requirements than the hotel use and expanded the living area of the building contrary to the ordinance, where there was no hardship, where the board failed to make findings of fact and conclusionS of law and no testimony was adduced to support the variance and the trial court erred in making unsupported findings of its own.

POINT FOUR

The board did not have jurisdiction where notice was deficient because the applicant did not mention all required and significant variances.

A zoning board's decision on a variance application may be set aside only when arbitrary, capricious, or unreasonable. Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002); New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 160 N.J. 1, 14 (1999); Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965). This standard comes from the recognition that local officials, who are familiar with a community's characteristics and interests, are best equipped to pass on variance applications. Kramer, supra, 45 N.J. at 296. Because of their knowledge of local conditions, boards must be allowed wide latitude in the exercise of their delegated discretion. Ibid. Therefore, "courts ordinarily should not disturb the dis cretionary decisions of local boards that are supported by sub stantial evidence in the record and reflect a correct applica tion of the relevant principles of land use law." Lang v. Zoning Bd. of Adj. of Borough of N. Caldwell, 160 N.J. 41, 58-59 (1999).

Board decisions are presumed valid and the party attacking them has the burden of proving otherwise. Cell S. of N.J., Inc., supra, 172 N.J. at 81. A court will not disturb a board's decision unless it finds a "clear abuse of discretion." Id. at 82.

Pursuant to these principles, we first address plaintiff's contention that the Board impermissibly "rezoned" defendant's property by granting a variance that defeats the goals of the Township's Master Plan. The Township's Master Plan states, in pertinent part:

[a]ll use and bulk regulations applicable to the Historic District Oceanfront District are intended to protect, present, and perpetuate the historical framework of Ocean Grove. This framework includes single family residences, bed and breakfasts and historic hotels. The conversion of additional transient residential uses to multi-family uses should be prohibited in the densely developed Historic District Oceanfront District.

The Master Plan goes on to recognize that:

unique circumstances may exist along Main Avenue or other prominent avenues where the preservation and adaptive reuse of a large historic structure is dependent on a mix of uses not envisioned in this plan. Such mix of uses may be appropriate, provided resultant development will not have a negative impact on the surrounding properties.

Plaintiff argues that the conversion of the hotel into a multi-family building does not fall within the articulated purpose of the Master Plan and, therefore, variances should not have been granted to allow such renovation.

A board of adjustment "may not, in the guise of a variance proceeding, usurp the legislative power reserved to the governing body of the municipality to amend or revise the plan. . . ." Vidal v. Lisanti Foods, Inc., 292 N.J. Super. 555, 561 (App. Div. 1996) (internal quotations omitted). In Tp. of Dover v. Bd. of Adj. of Dover, 158 N.J. Super. 401, 411 (App. Div. 1978), we explained that the "dispositive considerations . . . which underlie the statutory allocation of function" between the municipal governing body and its administrative land use agencies include the governing body's "ultimate responsibility to establish, by the adoption of its zoning ordinances and amendments thereto, the essential land use character of the municipality." On the other hand, the "variance power" allocated to municipal land use agencies is intended only to "accommodate individual situations where relief from the applicable ordinance is warranted." Tp. of North Brunswick v. Zoning Bd. of Adj. of Tp. of North Brunswick, 378 N.J. Super. 485, 490 (App. Div.), certif. denied, 185 N.J. 266 (2005). The power to grant variances is so confined to "avoid the potential" that this power "might otherwise have for substantially affecting the essential land use scheme of the entire district itself and perhaps of the entire municipality as well." Tp. of Dover, supra, 158 N.J. Super. at 412. "The basic inquiry in each case must be whether the impact of the requested variance will be to substantially alter the character of the district as that character has been prescribed by the zoning ordinance." Id. at 412-13.
In this case, defendant's proposed plan will not substantially alter the character of the district. The Master Plan states that "[a]ll use and bulk regulations applicable to the Historic District Oceanfront District are intended to protect, preserve, and perpetuate the historical framework of Ocean Grove." Defendant's current proposal calls for preserving seventy-five percent of the original structure. Janiw, defendant's planner, testified that the project was "very much on point to the preservation goals spelled out in your master plan." He went on to say "[i]t's certainly in keeping with the characteristics of the neighborhood. . . ." Moreover, Pavliv, defendant's architect, stated that in order to convert the hotel into a single-family home, thus complying with the applicable zoning ordinance, the entire structure must be razed, thereby obliterating any hope of preserving the building. Also, the Board determined that not reviving the hotel use would reduce the population density, which is another overriding goal of the Master Plan.

In light of the clear language of the Master Plan and the expert testimony available in the record, the Board did not act in an arbitrary and capricious manner by granting defendant's variance applications. Converting the hotel into condominium units, and thereby preserving the historic nature of the building, is in compliance with the ultimate goal of the Master Plan, which is to preserve and perpetuate the historic character of the Township.

Plaintiff argues that the Board engaged in "spot zoning" by granting defendant its requested variances. "Spot zoning" has been defined as the "re-zoning of a lot or parcel of land to benefit an owner for a use incompatible with surrounding uses and not for the purpose or effect of furthering the comprehensive zoning plan." William M. Cox, New Jersey Zoning and Land Use Administration 34-8.2 at 789 (Gann 2008). In other words, where a zone change is designed to relieve a property owner from the burden of a general regulation it will be stricken as unacceptable "spot zoning." Cresskill v. Borough of Dumont, 15 N.J. 238, 250 (1954). "The test is whether the zoning change in question is made with the purpose or effect of establishing or furthering a comprehensive zoning scheme calculated to achieve the statutory objectives" or whether it is a special exception designed to relieve the lot of the burden of the restriction. Id. at 249-50.

Plaintiff's argument is unfounded. The Board did not "re-zone" the property, but simply granted variances. Moreover, the variances were granted in furtherance of a comprehensive zoning scheme. The Board explained that the variance would preserve a historic structure and reduce the population density, both of which are clearly in keeping with the Master Plan's goals.

We next address plaintiff's contention that defendant did not present adequate "special reasons" to warrant the grant of (d) variances. Because multi-family housing is specifically prohibited in the HD-O Zone, defendants' required variances, pursuant to N.J.S.A. 40:55D-70(d), which provides, in pertinent part, that "[i]n particular cases for special reasons," a variance to allow departure from regulations may be granted to permit:

1) a use or principal structure in a district restricted against such use or principal structure,

(2) an expansion of a nonconforming use,

(3) deviation from a specification or standard pursuant to section 54 of P.L.1975, c.291 (C.40:55D-67) pertaining solely to a conditional use. . . .

To obtain such variances, an applicant must provide proof satisfying statutorily prescribed "positive" and "negative" criteria. Sica v. Board of Adj. of Twp. of Wall, 127 N.J. 152, 156 (1992).

"Generally, to satisfy the positive criteria, an applicant must prove that 'the use promotes the general welfare because the proposed site is particularly suitable for the proposed use.'" Smart SMR v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 323 (1998) (quoting Medici v. BPR Co., 107 N.J. 1, 4 (1987)). A use, such as a school or hospital, that is "inherently beneficial" or inherently serves "the public good" by its nature will provide special reasons to grant the variance, thus presumptively satisfying the positive criteria. Ibid.; Kohl v. Mayor & Council of Borough of Fair Lawn, 50 N.J. 268, 279 (1967). If a proposed use is not inherently beneficial, "there must be a finding that the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought." Ibid.

The Municipal Land Use Law (MLUL) sets forth several purposes that may be advanced by a variance. These include the factors the Board considered in this case, namely:

e. To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment;

. . . .
 
i. To promote a desirable visual environment through creative development techniques and good civic design and arrangement;

j. To promote the conservation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through improper use of land;

[N.J.S.A. 40:55D-2(e)(i) and (j).]

Plaintiff contends that none of these factors were, in fact, present in this case and, as such, defendant did not provide sufficient "positive criteria," pursuant to N.J.S.A. 40:55D-70(d), to warrant the variances granted by the Board.

Specifically, plaintiff argues that the Board erred in determining that the proposed use "establishes appropriate population densities by going from a 22 unit hotel to a [sic] 4 condo units" because in order "to conform to the current code standards," the hotel's available rooms would be reduced to significantly less than twenty-two-units. Also, because occupants of the hotel would be "transient," plaintiff contends that the use and effect on the community would be less severe than from property owners who possibly live in Ocean Grove year- round.

Plaintiff's argument lacks merit. "Transient" hotel guests produce traffic, trash, and noise, the very factors that population density requirements are meant to control. The fact that they are not permanent residents is immaterial to these considerations. Moreover, Janiw testified that "[e]ven if it were 11 hotel units, at some point you can expect on a summer weekend full occupancy potentially of two people per unit of 22 people within those dwelling units."

Plaintiff's contention that a single-family home would create the smallest population density impact is likewise flawed. In order to convert the structure into one large home, the entire structure would most likely be razed. N.J.S.A. 40:55D-2(j) states that a "special reason" for granting a variance is "[t]o promote the conservation of historic sites and districts." Moreover, Ocean Grove's Master Plan states that "[a]ll use and bulk regulations applicable to the Historic District Oceanfront District are intended to protect, preserve, and perpetuate the historical framework of Ocean Grove." Defendant's current proposal calls for preserving seventy-five percent of the original structure. Therefore, the Board clearly did not act arbitrarily and capriciously by finding the preservation to be a "positive criteria."

In order to acquire (d) variances, the negative criteria of N.J.S.A. 40:55D-70 must also be met. That is, the 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." N.J.S.A. 40:55D-70. In applying the principles from N.J.S.A. 40:55D-70(d), a court is required to utilize the Sica balancing test, and (1) "identify the public interest at stake," recognizing that "[s]ome uses are more compelling than others," (2) "identify the detrimental effect that will ensue from the grant of the variance," (3) if necessary, "reduce the detrimental effect by imposing reasonable conditions on the use," and (4) "weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good." Sica, supra, 127 N.J. at 165-66.

In the instant matter, defendant presented evidence that the variance could be granted without substantial detriment to the public good and it would not substantially impair the intent and purpose of the zone plan and zoning ordinance. The Board found that defendants met the necessary quality of proof. The Board, in finding that the negative criteria were met, explained:

the hotel use is the most intense residential use contributing noise, parking problems, ingress and egress problems as well as foot traffic and trash problems. The proposed use will have no impact on the zone plan and to the contrary it provides a benefit. There is no impact on the surrounding uses and all conditions on the property are preexisting. The proposed site is particularly suited for the proposed use.

The Board based these conclusions on the testimony of Pavliv and Janiw.

Clearly, the Board's determination that defendant satisfied the "negative criteria" requirement was not arbitrary and capricious, but was based on facts present in the record. The proposed use will decrease population density and will not impact neighboring properties. Therefore, the Board did not err in granting defendant the various (d) variances.

Plaintiff also argues that defendant wrongfully received bulk variances pursuant to N.J.S.A. 40:55D-70(c)(2), which provides:

where in an application [for a variance] or [an] appeal relating to a specific piece of property the purposes of [the Municipal Land Use Law] . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations. . . .

The negative criteria of N.J.S.A. 40:55D-70 must also be met. That is, the 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." N.J.S.A. 40:55D-70.

With respect to a c(2) application, the Supreme Court has said:

[b]y definition, then, no c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case, then, will be not on the characteristics of the land that, in light of current zoning requirements, create a "hardship" on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community.

[Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 563 (1988) (emphasis omitted).]

However, "[a] 'c(2)' variance is not necessarily unavailable because the applicant has created the condition which requires the variance." Green Meadows at Montville, L.L.C. v. Planning Bd. of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000). In other words, under c(2), the question is whether the grant of a variance would promote or advance the purpose of the act and the benefits of such deviation would outweigh any detriment.

In sum, the application for a variance under C2 requires:

(1) [that it] relates to a specific piece of property; (2) that the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance requirement; (3) that the variance can be granted without substantial detriment to the public good; (4) that the benefits of the deviation would substantially outweigh any detriment and (5) that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance.

[Cox, supra, 6-3.3 at 143 (Gann 2008), citing, Ketcherick v. Borough of Mountain Lakes, 256 N.J. Super. 647, 657 (App. Div. 1992); Green Meadows, supra, 329 N.J. Super. at 22.]

As with (d) variances, a c(2) variance applicant must set forth what purposes of the MLUL will be advanced by granting the requested variance. In this case, the Board found the same "special reasons" applied for both the c(2) and d variances, namely, N.J.S.A. 40:55D-2(e)(i) and (j). Plaintiff contends that the Board did not make adequate findings of fact on the record to support granting the c(2) variances.

"A c(2) variance stands if, after adequate proofs are presented, the board without arbitrariness concludes that the harms, if any, are substantially outweighed by the benefits." Kaufmann, supra, 110 N.J. at 565. Given our scope of review, we agree with defendant and the trial court that the criteria for a c(2) variance were demonstrated in this case. The footprint, height, and width of the structure will not be significantly altered by defendant's plan and, importantly, the facade of the building will remain the same in order to preserve its historic character.

As stated above, the underlying purpose of the Master Plan is to preserve historic structures in Ocean Grove. Based on the testimony of Pavliv, who stated that seventy-five percent of the building would remain intact, and the testimony of Janiw, who explained that subsection (e) (i) and (j) of N.J.S.A. 40:55D-2 would be advanced by the proposed plan, the Board's findings are clearly supported by the record. As such, granting the variances was not arbitrary and capricious.

Lastly, plaintiff contends defendant gave deficient notice of its variance application pursuant to N.J.S.A. 40:55D-11, because "the applicant did not mention all required and significant variances." N.J.S.A. 40:55D-11 requires that notice "shall state" 1) the date, time and place of the hearing, 2) the nature of the matters to be considered 3) and, an identification of the property proposed for development "by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor's office," and 4) the location and times "at which any maps and documents for which approval is sought are available pursuant to subsection 6b."

In this case, the notice defendants provided satisfied all of the statutory requirements. The notice, after identifying the property that was the subject of the application and the date and time of the hearing, stated, in pertinent part, that defendants applied:

for a use variance to convert a 22 room hotel into 4 dwelling units with bulk variances as to existing conditions for frontage, width, depth to curb, and side yard setback and other setbacks if applicable, all under minimum, together with site plan approval and such other variances and waivers as shall be required.

While all "required variances should be mentioned in the notice" Cox, supra, 25-2.2 at 577, "the critical element of such notice has consistently been found to be an accurate description of what the property will be used for under the application." Perlmart of Lacey, Inc. v. Lacey Tp. Planning Bd., 295 N.J. Super. 234, 238 (App. Div. 1996); see also Scerbo v. Orange Bd. of Adj., 121 N.J. Super. 378, 388 (Law Div. 1972) (notice of an application to construct a residential treatment center was sufficient even though it did not state that a special exception or variance was sought). We have held:

that placing emphasis on the importance of accurately identifying the type of use or activity proposed by the applicant in laymen's terms, rather than the technical zoning term for that use, serves the dual purpose of adequately apprising the public of the general subject of the zoning hearing while at the same time avoiding unnecessary delays which could result from the need to readvertise the hearing in those cases where the applicant mischaracterizes the technical zoning relief which is sought.

[Perlmart, supra, 295 N.J. Super. at 239 (emphasis omitted) (quoting Appeal of Booz, 533 A.2d 1096, 1098 (Pa. Commw. Ct. 1987)).

The trial judge held that the notice defendants provided "sufficiently informed the public of the nature of the application before the board. . . ." He also found the notice stated other variances and waivers that might be requested at the hearing, thus informing the public that the application was not limited to the variances listed. As such, the trial judge held that the notice defendant's provided satisfied the statutory criteria and was proper. We agree and, therefore, affirm.

Affirmed.

Throughout the record, the stated number of possible rooms in the hotel ranges from eleven to twenty-two. The hotel was originally designed with a twenty-two-room capacity. However, if the hotel were renovated to conform to all applicable laws and regulations, the number of rooms would be greatly reduced.

Burbridge v. Mine Hill Tp., 117 N.J. 376 (1990).

As explained above, the trial judge held that the Board erred in considering this a "special reason" for granting the variance. Plaintiff does not appeal that determination, but instead contends that the trial judge improperly considered other factors.

(continued)

(continued)

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February 3, 2009