EDWARD FEINS v. BOROUGH OF BEACH HAVEN LAND USE BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5638-09T2

EDWARD FEINS,

Plaintiff-Appellant,

v.

BOROUGH OF BEACH HAVEN LAND

USE BOARD and REED JOHNSON, LLC,

Defendants-Respondents,

and

EDWARD FREEMAN and ELLEN FREEMAN,

Defendants.

__________________________________

June 1, 2011

Submitted May 16, 2011 - Decided

Before Judges A.A. Rodr guez and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Ocean County,

Docket No. L-94-09.

Robert Carter Pierce, attorney for

appellant.

Szaferman, Lakind, Blumstein &

Blader, attorneys for respondent

Reed Johnson, LLC (Arnold C. Lakind,

of counsel and on the brief).

Howard Butensky, attorney for respondent

Borough of Beach Haven Land Use Board,

joins in the brief of respondent Reed

Johnson, LLC.

PER CURIAM

Plaintiff Edward Feins appeals from an order of the Law Division affirming site plan approval and variances granted to defendants Edward and Ellen Freeman by defendant Borough of Beach Haven Land Use Board (Board). We affirm substantially for the reasons stated by Judge Grasso in his June 14, 2010 letter opinion and add the following brief discussion to address the issues raised on appeal. After the Board adopted its resolution and while plaintiff's action was pending in the Law Division, defendant Reed Johnson, LLC, purchased the Pearl Street Market.

The Freemans' property is commonly known as the Pearl Street Market, and it is located in an older business district in Beach Haven that was not developed with on-site parking. Based on hardship attributable to the size of the lot, the Board granted a variance for on-site parking, zero spaces where fifteen are required. N.J.S.A. 40:55D-70c(1)(a). The remaining variances were granted pursuant to N.J.S.A. 40:55D-70c(2): side-yard setbacks for the refrigeration unit of 3.8 and .8 feet where ten feet is required; variances from setback and buffer from residential use for a shed, zero feet where ten feet is required; eighty-four percent impervious lot coverage where seventy-five percent is the maximum permitted; and no loading area.

With the exception of the setback variance and buffer from residential use for the shed, the conditions requiring the variances, including outdoor seating for customers, preexisted and were not exacerbated by the improvements for which the Freemans sought approval. The Board found that when the Freemans acquired the property in April 2003, it included a structure in poor condition that housed a market on the first floor, which was not a successful business, and a residential apartment on the second. The Freemans renovated the building and rejuvenated the business to the point that it had become a popular location in the community. They added two sheds, additional outdoor seating and food prepared in the kitchen of the upstairs apartment to the market's offerings. For the most part, these things had been done without obtaining permits or approvals. The Freemans agreed to remove one of the sheds and thereby eliminated the need for several variances initially requested, and they reduced the proposed seating capacity.

The Board determined that the Freemans' business, including the expansion of outdoor seating, was "an enhancement affecting the general welfare of the community and the quality of life of Beach Haven residents, both seasonal and permanent." The Board further concluded that granting the Freemans' request was consistent with the intent of the Borough's master plan to encourage a "viable and vibrant" business district. Although the Board recognized and considered the detriments, it concluded that the residential properties in the neighborhood were adequately shielded from the commercial use and there was ample on-street parking nearby to accommodate customers who did not walk or ride bicycles to the market. To address the remaining concerns expressed by residential neighbors, the Board imposed limitations on hours for deliveries and operations, prohibited table service and required indoor storage of the chairs at night. While the Board did not expressly grant a variance for outdoor seating, the Board noted that if one were required, it would be justified by the positive impact on the community that outweighed any detriments.

On appeal plaintiff argues:

I. THE BOARD'S DECISION GRANTING THE

NUMEROUS VARIANCES WAS ARBITRARY, CAPRICIOUS, OR UNREASONABLE AS TO AMOUNT TO AN ABUSE OF DISCRETION.

II. THE BOARD'S APPROVAL OF OUTDOOR SEATING

REQUIRED A VARIANCE. THE BOARD'S RESOLUTION GRANTING OUTDOOR SEATING WITHOUT GRANTING A VARIANCE IS AN ABUSE OF DISCRETION.

III. THE BOARD'S DETERMINATION THAT THE USE

OF THE PROPERTY WAS RETAIL AND NOT A RESTAURANT WAS ERROR, SUBJECT TO DE NOVO REVIEW.

The arguments are without sufficient merit to warrant extensive discussion. The Board's action was authorized by paragraph c(2) of N.J.S.A. 40:55D-70. Through that provision, "[t]he Legislature undoubtedly intended . . . to vest a larger measure of discretion in local boards in a limited area of cases. Courts are obliged to respect that grant of power." Kaufmann v. Planning Bd. for Warren Twp., 110 N.J. 551, 566 (1988). "Our review is restricted to a determination of the consistency of the exercise of that discretion with 'its inherent limitation to the affirmative advancement of zoning purposes [set forth in N.J.S.A. 40:55D-2] and by the negative criteria of N.J.S.A. 40:55D-70.'" Pullen v. Twp. of South Plainfield Planning Bd., 291 N.J. Super. 1, 8 (App. Div. 1996) (quoting Kaufmann, supra, 110 N.J. at 566). Promotion of the "general welfare" is a purpose approved in N.J.S.A. 40:55D-2, and a grant of variances that provides a better land use alternative for the property at issue is a proper exercise of the Board's power when the positive impact on the general welfare substantially outweighs the detriments. Id. at 7-8. Where, as here, a Board relies on c(2), the benefits and detriments of the individual variances are assessed as a whole, not in isolation. Id. at 9.

Our review convinces us that the record provides sufficient credible evidence to support the Board's findings relevant to c(2); thus there is no basis for us to intervene on the ground that the Board acted unreasonably or arbitrarily. For that reason, and those expressed by Judge Grasso, we reject the arguments presented in Point I.

In Point II, plaintiff claims that the Board erred by not granting a variance for outdoor seating. The Board deemed that variance unnecessary because outdoor seating was a preexisting condition. Nevertheless, the Board addressed the question and explained that even if a variance for this seating were required, one would be warranted pursuant to c(2), subject to the restrictive conditions imposed by the Board.

Because the objection raised in Point III does not alter our analysis, we consider it summarily. Plaintiff's claim here is that the Board erred in not concluding that the Pearl Street Market is a restaurant. Plaintiff's only argument based on the classification of the business as a restaurant pertains to the number of on-site parking spaces required. But the Board's approval of no on-site parking was essential to operation of the market with outdoor seating on this lot. The parking variance, which the Board was not required to consider in isolation, was amply supported by the Board's findings relevant to c(2), addressing the positive and negative effects of having this business operate on this property.

Affirmed.