BOWERS STREET ASSOCIATES INC. v. THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF UNION CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0314-13T4

BOWERS STREET ASSOCIATES

INC. t/a FULL MOON SALOON,

Plaintiff-Respondent,

v.

THE ZONING BOARD OF ADJUSTMENT

OF THE CITY OF UNION CITY

and UNION CITY BUILDING

DEPARTMENT,

Defendants-Appellants.

________________________________________

November 25, 2014

Argued November 18, 2014 Decided

Before Judges Yannotti, Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1167-13.

Gregory F. Kotchick argued the cause for appellants (Durkin & Durkin, L.L.P., attorneys; Mr. Kotchick, on the brief).

J. Alvaro Alonso argued the cause for respondent (Alonso & Navarrete, L.L.C., attorneys; Mr. Alonso, on the brief).

PER CURIAM

In this prerogative writs case, the Zoning Board of Adjustment of the City of Union ("Zoning Board") and the Union City Building Department ("Building Department") (collectively referred to as "defendants") appeal from an August 20, 2013 order finding that the Zoning Board's decision to require a use variance was arbitrary, capricious, and unreasonable. We affirm.

In 1991, plaintiff entered into a ten-year lease to operate a bar at the property (the "Property"). A bar has operated continuously on the Property since the 1940s and pre-dates the relevant municipal zoning laws. On November 14, 2008, the Union City Alcoholic Beverage Control Board (the "ABC"), imposed a sixty-day suspension of plaintiff's liquor license. Plaintiff resolved the suspension issues and continued to operate as a bar until approximately May 2009, when it briefly shut down because plaintiff's lease expired.

In August 2009, plaintiff entered into a contract for the sale of the liquor license to his landlord (the "Property owner"), but the ABC denied plaintiff's application to transfer the license. Plaintiff then informed the ABC that it would continue to operate as a bar at the Property, and the Property owner became a shareholder in plaintiff's operation. The Property owner and plaintiff operated the bar until December 29, 2011, when the Union City Police Department shut the bar down for failure to have a certificate of occupancy.

Plaintiff contended before the Zoning Board that the operation of a bar on the premises constituted a pre-existing non-conforming use that predated any ordinance barring the Property from being used as a bar. The Zoning Board concluded that the use of the Property as a bar was not a permitted use, found that the closure of the bar in 2009 was "not adequately explained," and determined that plaintiff abandoned the use of the Property as a bar. The Zoning Board memorialized its ruling in a resolution.

Plaintiff filed this prerogative writs action. Judge Lourdes I. Santiago conducted a de novo review of the record and issued a written opinion. The only issue before the judge was whether the Zoning Board's determination that plaintiff abandoned the use of the Property as a bar was arbitrary, capricious, or unreasonable.

Judge Santiago determined that use of the Property was permitted as a pre-existing and non-conforming use. The judge concluded that plaintiff demonstrated a sufficient explanation for the bar closure and did not abandon the pre-existing use. Rejecting the Zoning Board's conclusion that the closure of the bar was "not adequately explained," the judge stated that

there was a sixty (60) day suspension imposed by the [ABC] on November 14, 2008. Plaintiff's original cessation of the use of the Property as a bar was not occasioned by this violation, however, as an appeal was taken on November 15, 2008[,] and the bar resumed operations. Thereafter, in May of 2009[,] while the settlement negotiations were ongoing regarding the violation, [plaintiff] failed to renew a lease with the [Property owner]. The reason for [plaintiff's] failure to renew [the lease] was not premised on an intention to forgo use of the license and operation of a bar at the location, but, rather, an understanding between [plaintiff] and [the Property owner] that the [l]iquor [l]icense would be transferred.

[Plaintiff's] unchallenged testimony before the [Zoning] Board, as well as the testimony of . . . counsel for the ABC violation, confirmed that there was never a subjective intention to abandon the [l]iquor [1]icense. This testimony was not rebutted and [plaintiff] and [the Property owner] executed a contract for the sale of the [l]iquor [l]icense on August 28, 2009[,] only two months after the bar's closure. . . . [T]he conti[nuous] timeline of intent to operate a bar . . . is undeniable. In short, the record contains not a scintilla of evidence of intent to abandon [the use of the Property as a bar].

As a result, the judge voided the Zoning Board's resolution.

On appeal, defendants argue that the Zoning Board's decision was not arbitrary; plaintiff abandoned the pre-existing use of the Property; and plaintiff failed to maintain a possessory interest in the Property.

After reviewing the record and the briefs, we conclude that defendants' arguments "are without sufficient merit to warrant discussion in a written opinion," R. 2:11-3(e)(1)(E), and affirm substantially for the thoughtful reasons expressed by Judge Santiago. We add the following remarks.

When reviewing a trial court's decision regarding the validity of a local board's determination, "we are bound by the same standards as was the trial court." Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). Thus, we give deference to the actions and factual findings of local boards and may not disturb such findings unless they were arbitrary, capricious, or unreasonable. Id. at 560. In other words, a board's actions must be based on substantial evidence. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 89 (2002). However, a local board's "legal determinations are not entitled to a presumption of validity and are subject to de novo review." Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 197 (App. Div. 2009).

Applying these standards, the judge correctly concluded that the Zoning Board's decision was arbitrary, capricious, and unreasonable. The judge properly determined that plaintiff demonstrated a sufficient explanation for the bar closure and that plaintiff did not intend to abandon the pre-existing use. She completely rejected the Zoning Board's findings that the closure of the bar was "not adequately explained." The record shows that plaintiff appealed the ABC's suspension and also sought approval of a license transfer to the Property owner, thereby manifesting an intent to continue operating a bar on the Property.

Affirmed.