FH LINE ROAD, LLC v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF ABERDEEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FH LINE ROAD, LLC,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT OF

THE TOWNSHIP OF ABERDEEN; CDRT

REAL ESTATE CO., LLC (a/k/a CDRT

REAL ESTATE ASSOCIATES, LLC d/b/a

"TAB RAMOS SPORTS CENTER"); and

CHRIS GOSHA (a/k/a CHRISTOPHER GOSHA),

Defendants-Respondents.

___________________________________________

Argued June 3, 2014 Decided June 23, 2014

Before Judges Alvarez, Ostrer and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3557-12.

Michael A. Irene, Jr., argued the cause for appellant.

Marc A. Leckstein argued the cause for respondent Zoning Board of Adjustment of the Township of Aberdeen (Leckstein & Leckstein, attorneys; Mr. Leckstein, on the brief).

Paul H. Schneider argued the cause for respondents CDRT Real Estate Co., LLC and Chris Gosha (Giordano, Halleran & Ciesla, attorneys; Mr. Schneider, of counsel; Steven P. Gouin, on the brief).

PER CURIAM

Plaintiff FH Line Road, LLC (FHLR), appeals from an order that dismissed its action in lieu of prerogative writs challenging a decision by defendant Aberdeen Township Zoning Board of Adjustment (the Board). We affirm, substantially for the reasons set forth by Judge Lawrence M. Lawson in his written opinion.

Defendant CDRT Real Estate Co., LLC (CDRT) is the owner of an indoor sports facility located on Blair Road in Aberdeen Township. The property is situated in a residential/office district. CDRT's sports center offers indoor soccer fields, volleyball courts, as well as a 1,250 square foot bar and lounge area. FHLR owns an office complex 200 feet to the east of the sports center, at 675 Line Road.

The property was originally developed as an indoor tennis facility through a use variance granted by the Board in the early 1970s. In 1989, CDRT's predecessor in title received permission from the Board to convert the tennis courts into an indoor softball facility.1 In 1992, CDRT's predecessor returned to the Board, requesting to convert the facility into indoor soccer fields and volleyball courts. The Board granted the application, finding the proposal was "so similar" to the prior use that no use variance was required. In 1994, the prior owners requested, and received, a use variance to sell alcoholic beverages on the premises. CDRT purchased the property in 2004, and continues to operate it as an indoor sports facility.

The present dispute stems from the Board's 1989 resolution that approved the conversion to an indoor softball facility ("1989 resolution"). That resolution allowed the facility to maintain fifty-seven on-site parking spaces, and to lease forty-three off-site parking spaces, despite a township ordinance requiring 160 spaces. However, it further provided that if the shared parking agreement were "terminated by the provider of same," the facility "shall be required to re-apply for site plan review and approval." On December 1, 1989, to fulfill the requirements of the resolution, the prior owners began leasing adjacent parking spaces from the owners of 675 Line Road.

The shared parking agreement remained "essentially unchanged," from 1989 until 2008, when FHLR purchased 675 Line Road. On November 18, 2008, the prior owner of 675 Line Road notified CDRT of its sale to FHLR. The letter advised CDRT, "your lease provides . . . that upon the sale of the premises, the [parking] lease is subject to termination upon 90 days['] notice. This letter shall serve as [n]otice of the sale of the premises . . . and written [d]emand that you vacate the premises . . . ." Thereafter, CDRT and FHLR unsuccessfully attempted to negotiate the terms of a new lease.

Patrons of the sports center subsequently began parking on surrounding residential streets. On February 19, 2010, the township sent CDRT a "notice of violation," advising:

It has come to our attention that you are in violation of your site plan approval by eliminating off-street parking spaces . . . .

Condition No. 3 [of the 1989 resolution] states . . . there shall be no less than 57 on site parking spaces and not less than 43 off site, shared parking spaces.

Condition No. 6 states, in the event that the shared parking is approved by the Board attorney and said agreement is terminated by the provider of same . . . applicant shall be required to reapply for site plan review and approval.

The township advised CDRT to "work diligently to provide new plans to be reviewed for completeness in order for you to return to the Zoning Board . . . to seek new parking."

On April 16, 2010, CDRT filed a development application, seeking preliminary and major site plan approval to expand its on-site parking. The plan included several bulk variances from the municipal zoning code, including (1) permission to reduce the buffer zone from the required fifty feet to six feet; (2) permission to install an eight-foot fence, as opposed to the maximum six-foot fence; (3) decreasing the front, rear, and side lot area set-backs; and (4) "maximum coverage by [the] princip[al] building." It also required waiver of certain design requirements, including: (1) reducing the size of the parking stalls from nine-feet by eighteen-feet to nine-feet by sixteen-feet, with two-foot concrete "overhangs"; and (2) elimination of the five required "loading spots."

Following review by both its planner and engineer, the Board deemed CDRT's application complete, and conducted hearings on the application on June 23 and August 25, 2010; April 13, November 9, and December 14, 2011; and July 25, 2012. Three witnesses testified for CDRT: its site engineer, Robert Kee, Jr.; traffic engineer, John Rea; and planner, Andrew Janiw. FHLR appeared as an objector at each of the hearings, and offered the testimony of its owner, Bernard Friel, and its planner, Gordon Gemma.

During the June 23, 2010 hearing, the Board considered its jurisdiction over CDRT's application. FHLR argued that the application to locate additional parking spaces on the property constituted an expansion of a "nonconforming use," thus necessitating a "d" variance under N.J.S.A. 40:55D-70(d)(2).

At the conclusion of the hearings, four Board members voted in favor of the application, and one abstained. The Board's decision was memorialized in a twenty-two page resolution, adopted on July 25, 2012. The Board first concluded that CDRT's application was merely one for "site plan review necessitating 'bulk variances' and waivers," and that no use variance was required. It rejected FHLR's argument that CDRT was prohibited from expanding on-site parking, because the 1989 resolution "clearly envisioned the possibility" that the sports center's parking "would be located on-site."

The Board also found that final site plan approval, with the requested variances and waivers, was warranted. It credited the "uncontroverted" testimony of CDRT's experts, corroborated by the Board's engineer, that the plan would "create less interference with off[-]site traffic." The Board also concluded that the plan could be implemented "without negatively impacting surrounding properties." It rejected Gemma's testimony that the proposal would negatively impact adjacent property owners, and credited Janiw's opinion, concurred in by the Board's planner, that the proposed buffer would be more effective than the existing one. Overall, the Board "[could] not conceive of any manner in which the neighboring community would be negatively impacted."

FHLR filed an action in lieu of prerogative writs challenging the Board's decision. Following a hearing, Judge Lawson dismissed plaintiff's complaint, setting forth his reasons in a comprehensive twenty-two page written opinion.

On appeal, FHLR generally argues the same issues presented to the trial judge, including: (1) the sports center was a preexisting nonconforming use, which would require a "d" variance in connection with the parking area expansion; (2) if in fact no "d" variance was required, then jurisdiction over the site plan application rested with the township's Planning Board rather than the Zoning Board; (3) CDRT's application was incomplete and failed to include essential information with respect to drainage, lighting, etc.; (4) the Board improperly delegated authority to review aspects of the site plan to its professionals; and (5) the Board's actions were arbitrary, capricious, and unreasonable.

Zoning boards make quasi-judicial decisions to grant or deny applications within their jurisdiction. Willoughby v. Planning Bd. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997); Kotlarich v. Mayor of Ramsey, 51 N.J. Super.520, 540-42 (App. Div. 1958). The determination of a zoning board is presumed to be valid. Kramer v. Bd. of Adj., Sea Girt, 45 N.J.268, 285 (1965); Cell S. of N.J. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J.75, 81 (2002). The court's review of a board's decision is based solely on the record before the board. Kramer, supra, 45 N.J.at 289. A court must not substitute its own judgment for that of the board unless there is a clear abuse of discretion. See Cell S. of N.J., supra, 172 N.J. at 81-82. The burden is on the challenging party to demonstrate that the board's decision was arbitrary, capricious or unreasonable. Price v. Himeji, LLC, 214 N.J. 263, 284 (2013); Cell S. of N.J., supra, 172 N.J. at 81.

We apply the same standards as the trial court. Bressman v. Gash, 131 N.J. 517, 529 (1993); D. Lobi Enters. v. Planning/ Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009). However, when an appeal raises a question of law, we apply a plenary standard of review. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993).

In his written opinion, Judge Lawson accurately and completely addressed the issues raised by FHLR in light of the controlling legal principles. In concluding that no "d" variance was required for the proposed site plan, and that jurisdiction remained with the Board, Judge Lawson reviewed the history of the subject application and the variances previously approved. He noted that CDRT's site plan application did not alter the requirement imposed under the 1989 resolution that the sports center maintain "not less than 100 parking spaces." Rather, the center would "maintain[] more than 100 parking spaces, but now all of the parking spaces will . . . be located on-site." The court found it "influential" that the sports center, in 1989,

made all the necessary proofs required by a "d" variance, and the Zoning Board, in consideration of those proofs, granted the "d" variance. The fact that the 1989 Application provided that roughly half of the parking spaces be maintained off-site, and that those parking spaces will now be moved on-site, does not affect the primary determination that 100 parking spaces would be permitted by the "d" variance.

Under N.J.S.A. 40:55D-70(d)(2), a zoning board of adjustment has the power "in particular cases for special reasons" to grant a variance to permit an expansion of a nonconforming use. By statute, a nonconforming use is defined as a "use or activity which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption, revision or amendment." N.J.S.A. 40:55D-5.

A use permitted by variance is clearly distinct from a nonconforming use. Puleio v. N. Brunswick Twp. Bd. of Adj., 375 N.J. Super. 613, 620 (App. Div.), certif. denied, 184 N.J. 212 (2005).

Therefore a legal use may fall into one of three different and distinct categories: (1) a permitted use one permitted under the zoning ordinance that is conforming in every way; (2) a use granted by variance one not permitted by the terms of the zoning ordinance because it does not conform to the listed permitted uses in the zone, but one that the Municipality has voted upon and allowed despite its non-conformance; and (3) a nonconforming use one that was legal and permitted prior to an ordinance change, but that no longer conforms with the current zoning ordinance.

[Id. at 620-21.]

Citing Puleio, Judge Lawson concluded that the 1989 resolution established "a 'use created by variance'" and "not a 'nonconforming use.'" Accordingly, because the "relocation" of the parking spaces was not an expansion of a nonconforming use, the 2010 application did not require a "d" variance.

The court next addressed FHLR's alternative argument that if "d" variance relief was not required, the Board lacked jurisdictionover CDRT's application. Specifically, FHLR contended that if CDRT's application merely required approval of a site plan, it should have been submitted to the Planning Board.

Judge Lawson noted that the 1989 resolution was the product of a bifurcated application. He concluded that the zoning board maintained jurisdiction over any subsequent site plan approvals, including CDRT's 2010 application, in part, because the 1989 resolution was the product of a bifurcated application.

A bifurcated application is one where the applicant submits a separate application requesting approval of a "d" variance, and subsequently applies for approval of a subdivision or site plan. Puleio, supra, 375 N.J. Super. at 622. Under N.J.S.A. 40:55D-76, "[t]he separate approval of the ['d'] variance shall be conditioned upon the grant of all required subsequent approvals." Ibid. The applicant need not designate the application as bifurcated. Rather, N.J.S.A. 40:55-76(b) applies "not only to an application that is actually applied for in bifurcated form, but also to an application that is submitted in two separate steps so that for all intents and purposes, it is bifurcated as well." Puleio, supra, 375 N.J. Super. at 622. Importantly, "[t]he statute does not contain any time constraints limiting the time within which the subsequent application need be filed. It is clear however that the Board is to retain jurisdiction over the subsequent application." Ibid.

The zoning board may not grant a subsequent approval unless it can do so "without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-76(b). The "substantial detriment" component of the analysis is referred to as the "negative criteria." Puleio, supra, 375 N.J. Super. at 621. The applicant bears the burden of proving both the negative and positive criteria. Ibid.

Here, as noted, the 1989 resolution was the product of a bifurcated application. CDRT's predecessor in title first obtained a use variance, to convert the indoor tennis courts into an indoor softball facility. The use variance approval stated that the project was "[s]ubject to site plan approval by this [b]oard." The 1989 resolution then expressly provided for the Board's continuing jurisdiction. It stated: "In the event that the shared parking is . . . terminated by the provider . . . Applicant shall be required to re-apply for site plan review and approval." As Judge Lawson noted, maintaining jurisdiction allowed the Board to consider the site plan "as it relates to the negative criteria of the variance" that the Board previously granted.

Next, Judge Lawson rejected FHLR's contention that the Board made insufficient findings of fact. Both the Board's engineer and planner agreed with CDRT's experts that the plan could be implemented without adversely impacting neighboring property owners. The Board's planner agreed with Kee that the proposed buffer would be more effective than the existing one. The judge also noted that CDRT's site plan generally satisfied the township's requirements. Although the Board's resolution provided that CDRT submit revised drainage, landscaping, and lighting plans as may be required by the township's engineer and planner for review and approval, this condition did not deprive any interested party due process of law.

Judge Lawson lastly determined that the Board's resolution was not arbitrary, capricious, or unreasonable. The Board relied on the testimony of various experts, each of whom concluded the site plan could be implemented with "appropriate vehicle spacing, traffic circulation, garbage collection, buffers, lighting, and drainage." Moreover, the Board appropriately considered the plan's potentially negative impact.

Having reviewed the record, briefs, and arguments of counsel, we are satisfied we need not add to Judge Lawson's insightful analysis of the issues presented and affirm, substantially for the reasons set forth in his opinion.

Affirmed.

1 The application was a bifurcated application, as defined in N.J.S.A. 40:55D-76(b). The statute allows developers to first submit "a separate application requesting approval of the [use] variance," and "a subsequent application for any required approval of a subdivision, site plan or conditional use." The Board granted the developer s requested use variance on September 27, 1989. The site plan was approved on November 15, 1989.