LISA BELLANTE VS. THE BOROUGH OF WANAQUE (L-3977-15, PASSAIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 25, 2021
• Docket: A-2759-18
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2759-18

LISA BELLANTE and MARC BELLANTE,

Plaintiffs-Appellants,

v.

THE BOROUGH OF WANAQUE, THE ZONING OFFICER OF THE BOROUGH OF WANAQUE, MKR ENTERPRISES, LLC d/b/a THE TREE TAVERN, PROVISION FOODS, LTD., d/b/a THE TREE TAVERN, and MIKE RYAN Individually,

Defendants-Respondents. ______________________________

Argued November 12, 2020 – Decided June 25, 2021

Before Judges Alvarez and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3977-15.

Paul V. Fernicola argued the cause for appellants (Paul V. Fernicola & Associates, LLC, attorneys; Paul V. Fernicola, of counsel; Robert E. Moore, on the briefs). Ronald P. Mondello argued the cause for respondent Board of Adjustment for the Borough of Wanaque.

Heather W. Goldstein argued the cause for respondent Zoning Officer of the Borough of Wanaque (Buglione, Hutton & Deyoe, LLC, attorneys; Heather W. Goldstein, on the brief).

A. Michael Rubin argued the cause for respondents MKR Enterprises, LLC, d/b/a The Tree Tavern, Provision Foods, Ltd., d/b/a The Tree Tavern, and Mike Ryan (The Law Offices of A. Michael Rubin, attorneys; A. Michael Rubin, on the brief).

Durkin & Durkin, attorneys for respondent Borough of Wanaque, join in the briefs of co-defendants- respondents.

PER CURIAM

Plaintiffs Lisa and Marc Bellante appeal from two orders: an August 9,

2018 amended order dismissing the first amended complaint with prejudice, and

a January 25, 2019 order denying their motion for reconsideration. Having

reviewed the record, and considering the applicable law, we affirm.

We discern the following facts from the lengthy record before us. In 2002,

defendant Michael Ryan, who at the time was acting president of defendants

MKR Enterprises, LLC (MKR) and Provision Foods, Ltd. (Provision Foods), 1

1 Unless indicated otherwise, we collectively refer to these parties as defendants. A-2759-18 2 purchased the subject property in the Borough of Wanaque (Borough), seeking

to operate a bar and restaurant called the Tree Tavern (Tavern). That year,

Provision Foods obtained a liquor license for the Tavern to sell alcoholic

beverages. The Tavern is a 41,697 square-foot property, upon which a

residential dwelling and a restaurant-bar is situated. Under Ordinance No. 1-

77-79, which was adopted in 1954 and amended in 1979, the "Tavern is located

in the R-15 Medium Density Residence District Zone," within which single-

family dwellings, places of worship, and certain buildings and structures for

public use may be built.

Plaintiffs own a home that is directly adjacent to the Tavern. Plaintiffs

purchased the home from Lisa Bellante's mother, and her family has owned the

house since 1951.

In February 2002, Jeffery Brusco, a zoning officer for the Borough, sent

a letter to Kathy Falone, the Borough's Clerk, informing her any outdoor service

of food or alcohol would require a use variance. In 2005, Ryan applied for

variances to renovate the Tavern for residential and commercial purposes that

are unrelated to the present dispute. In October of that year, the Board passed

Resolution 15-04, approving Ryan's application subject to certain conditions.

Brusco inspected the property and issued a certificate of occupancy. He took no

A-2759-18 3 action with regard to the Tavern serving food and alcohol outdoors other than

informing Ryan that it was his "opinion that food and drink were not permitted

in the outside area."

In April 2010, the Borough's attorney sent a letter to Falone informing her

that there was no indication that the Tavern's liquor license extended to outdoor

seating areas and a place-to-place transfer was required. Brusco then sent

Falone another letter stating that the Tavern could only continue outdoor dining

if Ryan obtained a use variance. Shortly thereafter, the Wanaque Police

Department cited the Tavern for violating its liquor license by selling alcohol

outdoors. The next month, the Borough adopted a resolution renewing the liquor

license, which extended the license to the outdoor area of the subject property

Later, the Borough passed a resolution allowing the Tavern to continue serving

both food and alcohol outdoors, subject to "conditions and restrictions related

to hours of outdoor use, noise levels, and required communication with local

police for gatherings of fifty or more patrons."

In June 2013, the Borough passed an additional resolution extending the

operating hours for the Tavern’s outdoor dining, abolishing the need for the

Tavern to notify police about gatherings of fifty or more customers outdoors,

A-2759-18 4 and permitting the use of outdoor entertainment. Since then, the Tavern has

offered outdoor dining.

On November 20, 2015, 2 plaintiffs filed a verified complaint for an action

in lieu of prerogative writs and an order to show cause (OTSC) against

defendants. Plaintiffs sought to bar defendant MKR from continuing the

nonconforming use of outdoor dining activities on the subject property; to

enforce the conditions that had been imposed in Resolution 15-04; and

compensatory damages both because defendant MKR's actions constituted a

nuisance and encroached on plaintiffs’ property. On December 18, 2015,

Assignment Judge Ernest M. Caposela entered an order granting plaintiffs’

OTSC with restraints, enjoining defendant MKR from serving either food or

alcohol outdoors. Defendant MKR moved for a rehearing and to vacate the

OTSC, which was denied as untimely.

2 Prior to filing the complaint, plaintiff sent a letter to the Borough and the Tavern, alleging that the Tavern had improperly expanded the hours during which it was selling food and alcohol outdoors. The letter also alleged that the service of "alcohol was not in existence prior to the 1979 ordinance which prohibited such activities in the R[-]15 zone." The Borough replied, asserting that the service of food and alcohol in outdoor area had predated the 1979 ordinance. A-2759-18 5 A pre-trial conference was conducted on May 12, 2016, before Judge

Caposela. That same day, he entered an order staying plaintiffs’ complaint, 3 and

remanding the matter to the Board for a "determination as to the nature of the

preexisting use, prior to 1979, of the property." There was no objection to this

order. Thereafter, defendants made an application to the Board seeking an

"interpretation of the expansion of the pre-existing non[]conforming restaurant

use pursuant to N.J.S.A 40:55D-70(b) including outdoor eating and drinking"

or, in the alternative, a "use variance to allow an expansion of the pre-existing

non[]conforming use pursuant to N.J.S.A. 40:55D-70(d)(2)."

Between September 2016 and October 2017, numerous hearings were

conducted before the Board on defendants' application. We summarize the

relevant facts adduced at those hearings. Ryan testified that, prior to purchasing

the property in 2002, a restaurant called "Andrew's Hideaway" had existed on

the premises for twenty-five years. Ryan introduced stationary from Polly's Bar

& Grill, Inc., which had owned and operated a restaurant on the subject property

prior to Andrew's Hideaway, into evidence. According to the stationary, "Polly's

Bar & Grill, Inc. was founded in 1922 as the Villa Genova Restaurant." The

stationary indicated that, in addition to serving food and beverages, it had an

3 The order did not, however, stay the injunction. A-2759-18 6 "[o]utdoor picnic grove." Ryan also introduced a 1951 lease, which showed that

Polly's Bar & Grill, Inc. had used "a portion of the adjacent property for picnic

use."

At a different hearing, James Herrick testified that his father would

regularly take him to Polly's Bar & Grill, Inc. in the 1950s. He indicated that

recreational sporting clubs would often meet there and have their outdoor

picnics or clam bakes. On cross-examination, Herrick acknowledged that the

outdoor bar structure was not present at the property prior to 1979. Joseph

Berkemyer testified that people would play bocce and have picnics during the

early 1950s and 1960s. Berkemyer testified that food and alcohol were often

served during the picnics. Kathy Assidio, who has lived near the subject

property for sixty-four years, testified that there was no outdoor bar or seating

on the property. She also indicated that there was no outdoor music, and she

never observed outdoor service of food and alcohol. On cross-examination,

however, Assidio conceded that, during the 1950s and 1960s, there were parties

outside of the subject property where people would consume food and drink.

Following several hearings, the Board concluded, based on the

documentary evidence and testimony, that food and drink were being served and

consumed on the subject property "since at least 1950." The Board found that

A-2759-18 7 much of the testimony of the objecting neighbors was contradicted "by either

themselves or by other more credible and less biased witnesses." The Board

also determined that the nonconforming use was "not abandoned," but that it

was "illegally expanded."

Following several subsequent hearings, the Board adopted resolution

ZBA-2016-05, which granted Ryan and Provision Foods a use variance to

expand the pre-existing nonconforming use for outdoor dining, N.J.S.A.

40:55D-70(d)(2), subject to several conditions and restrictions. Crediting

Ryan's expert, the Board found the property "is particularly well suited for the

proposed use based on its unique configuration, pre-existing use, physical

location, environmental characteristics, the detention system, landscaping and

major aesthetic improvements to the site." The Board balanced positive and

negative criteria, see Sica v. Bd. of Adjustment, 127 N.J. 152, 156 (1992), and

determined Ryan and Provision Foods had met its burden of proof warranting

the issuance of a variance.

On March 15, 2017, plaintiffs moved to invalidate the Board's

determination that a pre-existing nonconforming use permitted the Tavern to

A-2759-18 8 expand its outdoor dining or, alternatively, for a stay of any further proceed ings

by the Board. On April 17, 2017, Judge Caposela denied plaintiffs' motion. 4

On December 19, 2017, plaintiffs moved to file an amended complaint.

The next day, defendant MKR moved to vacate the injunctions preventing it

from serving food and alcohol outdoors. That same day, plaintiffs requested

Judge Caposela proceed in a summary manner, R. 4:67-1, with respect to two

legal determinations made by the Board: first, that plaintiffs did not waive the

argument that defendants were statutorily time-barred under N.J.S.A. 40:55D-

72(a); second, that the controlling date upon which the Board's decis ion rested

was not 1979. On January 8, 2018, Judge Caposela granted defendant MKR's

motion to vacate the injunctions.

On January 12, 2018, Judge Caposela granted plaintiffs' request to file an

amended complaint. That same day, Judge Caposela entered a case management

order permitting plaintiffs "to proceed . . . in a summary manner to determine

whether the actions taken" by the Board permitting defendant MKR to provide

outdoor service of food and alcohol were "arbitrary and capricious." Plaintiffs

amended the complaint to proceed by way of an action in lieu of prerogative

4 No statement of reasons accompanied that order. A-2759-18 9 writs, adding the Board as a defendant and requesting that the adoption of ZBA -

2016-05 be declared arbitrary or capricious.

On August 1, 2018, following oral argument, Judge Caposela entered an

order denying plaintiffs’ requests. He issued an eleven-page written opinion

setting forth his findings of fact and conclusions of law. On August 9, 2018,

Judge Caposela issued an amended order dismissing plaintiffs' complaint with

prejudice.

On August 22, 2018, plaintiffs moved to reconsider the amended order

dismissing their complaint with prejudice. Plaintiffs argued that their

application merely sought to clarify these issues, and that the issues raised in

their first amended complaint were not yet before the court. On January 25,

2019, following oral argument, Judge Caposela denied plaintiffs’ motion for

reconsideration and expressed his reasoning in a cogent, written opinion. In

rejecting plaintiffs' argument that the application to the Board of Adjustment

was time-barred, he determined it was not possible for defendant MKR to appeal

Brusco's determinations because defendant MKR was not properly served with

copies of the letters. Judge Caposela found that, as presented, the record wa s

"adequate" to decide the issues raised in plaintiffs' complaint and, moreover, the

issues were "subsumed within the . . . determination of whether . . . ZBA-2016-

A-2759-18 10 15 was . . . arbitrary, capricious, or unreasonable." He concluded plaintiffs had

failed to establish that he rendered his decision on a "palpably incorrect" basis

or "failed to consider significant probative evidence," and that the Board's

"findings were not arbitrary, capricious, or unreasonable."

On appeal, plaintiffs raise the following arguments for our consideration:

POINT I

THE APPELLATE DIVISION SHOULD EXERCISE ITS ORIGINAL JURISDICTION TO INVALIDATE RESOLUTION ZBA-2016-05.5

POINT II

THE TRIAL COURT ERRED DISMISSING [PLAINTIFFS'] FIRST AMENDED COMPLAINT IN ITS ENTIRETY WITH PREJUDICE. 6

POINT III

5 We conclude that this argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). 6 It was within the judge's discretion to summarily dispose of the case. "[A]ctions in lieu of prerogative writ, which pertain to zoning and planning board decisions, contemplate the filing of briefs and oral argument following submission of the administrative record, thereby facilitating early disposition." W.L. Goodfellows & Co. of Turnersville, Inc. v. Wash. Twp. Plan. Bd., 345 N.J. Super. 109, 112 n.1 (App. Div. 2001) (citing Odabash v. Mayor of Dumont, 65 N.J. 115, 121 n.4 (1974)). In dismissing plaintiffs' complaint, the court received the parties' briefs, heard oral argument, and had before it the complete administrative record, including all of the transcripts from the Board. A-2759-18 11 [DEFENDANTS] . . . FAILED TO MEET THE [EVIDENTIARY] STANDARD TO ESTABLISH A PRE[-]EXISTING NONCONFORMING USE.

POINT IV

THE TRIAL COURT ERRED IN NOT RULING THAT DEFENDANT MKR'S APPLICATION TO THE ZONING BOARD WAS TIME-BARRED. POINT V

DEFENDANT MK[R] UTILIZED THE INCORRECT ORDINANCE DATE WHICH INVALIDATES RESOLUTION ZBA-2016-05.

A municipal entity's "decision is 'invested with a presumption of

validity,'" 62-64 Main St., L.L.C. v. Mayor and Council of Hackensack, 221 N.J.

129, 157 (2015) (quoting Levin v. Twp. Comm. of Bridgewater, 57 N.J. 506,

537 (1971)), and "[t]he challenger of municipal action bears the 'heavy burden'

of overcoming this presumption." Vineland Constr. Co. v. Twp. of Pennsauken,

395 N.J. Super. 230, 256 (App. Div. 2007) (quoting Bryant v. City of Atlantic

City, 309 N.J. Super. 596, 610 (App. Div. 1998)). As long as the board's actions

are "supported by substantial evidence in the record, [we are] bound to affirm

that determination." 62-64 Main St., 221 N.J. at 157 (citing Gallenthin Realty

Dev., Inc. v. Borough of Paulsboro, 191 N.J. 344, 372-73 (2007)).

"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

A-2759-18 12 court.'" Jacoby v. Zoning Bd. of Adjustment of the Borough of Englewood

Cliffs, 442 N.J. Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., LLC

v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)). A

court "may not substitute its judgment for that of the board unless there has been

a clear abuse of discretion." Price v. Himeji, LLC, 214 N.J. 263, 284 (2013)

(citing Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002)).

"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." Jacoby, 442 N.J. Super. at 462. In contrast, a board's decision

concerning a question of law "is subject to a de novo review by the courts and

is entitled to no deference since a zoning board has 'no peculiar skill superior to

courts' regarding purely legal matters.'" Dunbar Homes, Inc. v. Zoning Bd. of

Adjustment of Franklin, 233 N.J. 546, 559 (2018) (quoting Chicalese v. Monroe

Twp. Planning Bd., 334 N.J. Super. 413, 419 (Law Div. 2000)).

Preliminarily, we reject plaintiffs' contention that Ryan's application was

time-barred pursuant to N.J.S.A. 40:55D-72(a). That provision, which applies

to "any decision of an administrative officer," does not apply under these

circumstances because Brusco's letters were unquestionably not "decisions."

The statutory provisions of the Municipal Land Use Law, N.J.S.A. 40:55D -1 to

A-2759-18 13 -163, support this conclusion. No formal hearings were conducted pr ior to

Brusco sending the letters. See N.J.S.A. 40:55D-10(g). Nor were the letters

published or circulated in the municipality. See N.J.S.A. 40:55D-10(i). In short,

Ryan's application was not time-barred and was properly before the Board.

Plaintiffs do not challenge the Board's decision to grant a variance under

N.J.S.A. 40:55D-70(d)(2). Rather, plaintiffs narrowly focus on the Board's

determination of the controlling date of the ordinance. We conclude, as Judge

Caposela did, that irrespective of the controlling date used by the Board, there

was substantial evidence in the record that both food and alcohol were served

and consumed outdoors since the early 1950s. Ryan introduced stationary which

indicated that Polly's Bar & Grill, Inc. had operated an "[o]utdoor picnic grove"

on the subject property since 1922. Ryan also submitted a 1951 lease which

showed that Polly's Bar & Grill, Inc. had used a "portion of the adjacent property

for picnic use." Herrick testified that his father would regularly take him to

Polly's Bar & Grill, Inc. in the 1950s and that recreational sporting clubs would

often meet to have outdoor picnics and clambakes. Berkemyer testified that

people would play bocce and have picnics during the early 1950s and 1960s.

Berkemyer explained that food and alcohol were often served during the picnics.

Even one of the objectors conceded that during the 1950s and 1960s, there were

A-2759-18 14 parties outside of the subject property where people would consume food and

drink. Accordingly, the Board's finding that outdoor service on the subject

property was a pre-existing nonconforming use was amply supported by the

record and its decision to grant a variance was therefore not arbitrary, capricious,

or unreasonable.

To the extent not addressed, plaintiffs' remaining arguments lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-2759-18 15