MICHAEL SAITZ VS. CITY OF VENTNOR PLANNING BOARD (L-2728-18, ATLANTIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 10, 2020
• Docket: A-4734-18T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4734-18T2

MICHAEL SAITZ, PAUL LAMB, BETSY LAMB, MAUREEN LEIDY, RICHARD CONKLIN, ALANA DEPRISCO, JERRY DEPRISCO, MICHAEL J. MADDOLA, RACHEL GARRITY, RYAN BECKER, WARREN GROSSMAN, RICHARD GOBER, ELAINE ROMOLINI, JOANNA PANG, and JULIANA PANG,

Plaintiffs-Appellants,

v.

CITY OF VENTNOR PLANNING BOARD and SHORE INVESTMENT AND DEVELOPMENT, LLC,

Defendants-Respondents. _________________________________

Argued April 2, 2020 – Decided July 10, 2020

Before Judges Suter and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket L-2728-18.

Scott E. Becker argued the cause for appellants. Elias T. Manos argued the cause for respondent City of Ventnor Planning Board (Manos Law Firm LLC, attorneys; Elias T. Manos, on the brief).

Brian J. Callaghan argued the cause for respondent Shore Investment and Development, LLC (Callaghan Thompson & Thompson, PA, attorneys; Brian J. Callaghan, on the brief).

PER CURIAM

Plaintiffs appeal from the May 28, 2019 order of the Law Division

affirming the decision of defendant City of Ventnor Planning Board (Board)

granting defendant Shore Investment and Development, LLC (Shore

Investment) a use variance for construction of a duplex on its property. We

affirm.

I.

The following facts are derived from the record. Shore Investment owns

a parcel in the city's Residential Redevelopment 2 Zoning District. The zone is

part of a redevelopment plan adopted by the city to address overcrowding and

the scarcity of on-street parking, revitalize the area, increase the amount of air,

light, and open space, and reduce overall residential density. 1 The zone permits

the following uses:

1 A 2019 amendment to the redevelopment plan removed reducing residential density as a goal of the plan. A-4734-18T2 2 [s]ingle-family detached dwellings; [t]wo-family dwellings in existence at the time of the adoption of this [r]edevelopment [p]lan; [t]ownhouses; [c]onversion of existing multifamily structures to apartments for the elderly; [c]onversion of existing multifamily structures to [b]ed & [b]reakfast [g]uesthouses; [s]urface-level off-street parking areas owned, operated or leased by the City of Ventnor; [b]ed & [b]reakfast Inn[s]; [s]enior [a]partment buildings; [and] [a]ssisted [l]iving [f]acility.

When Shore Investment acquired the property, it was improved with a

deteriorating, non-flood-compliant, one-family bungalow. The property had not

been maintained and was overgrown. Shore Investment applied to the Board for

a use variance under N.J.S.A. 40:55D-70(d) to replace the bungalow with a two-

story duplex, raised to satisfy federal flood damage prevention regulations over

ground-floor parking and storage. The proposed structure would meet all side-

yard and front-yard setbacks applicable to a single-family home, and would be

below the maximum permitted lot coverage and building coverage in the zone.

It is undisputed the proposed duplex was not a permitted use and required a

variance.

At a public meeting of the Board, Shore Investment presented testimony

from an engineer and an architect on the feasibility of its development plan. The

engineer noted that although the duplex was not a permissible use, there were "a

number of multi-family buildings [in the area], some duplexes, some two-

A-4734-18T2 3 families, some more than two-families" and described the parcel as "a blighted

piece of property" that "sticks out like a sore thumb" and was in need of

redevelopment. There is a ten-unit, multi-family building directly behind Shore

Investment's property. The engineer testified that the proposed duplex would

promote the general welfare and was particularly well-suited for the

neighborhood because of the existing multi-family dwellings, its meeting of

open space requirements and lack of effect on density, the four on-site parking

spaces, and because it was not a substantial detriment to the purposes of the

city's zoning or its residents.

The Board granted the use variance, concluding that "[t]he general area of

the subject property contains a mix of uses, including single-family and many

dwellings with basement apartments. There is also a multi-family use . . . facing

the back of the subject property." In addition, the Board determined the

proposed duplex would: (1) promote the general welfare by eliminating an

overgrown and dilapidated property and replacing it with a new building with

landscaping; (2) secure safety from flooding; (3) provide adequate light, air, and

open space; (4) promote the free flow of traffic on account of the on-site parking;

and (5) enhance the property's aesthetic. Finally, the Board concluded the

duplex's construction would not be a detriment to the public good, as it was no

A-4734-18T2 4 different in size than a large single-family home permitted in the zone, and

would not impair the zoning scheme because there are many multi-family units

already in the area as pre-existing uses.

Plaintiffs reside in the neighborhood in which Shore Investment's property

is located. They filed a complaint in lieu of prerogative writ in the Law Division

seeking to set aside the Board's decision.2

In a comprehensive oral opinion, Assignment Judge Julio L. Mendez

affirmed the Board's decision, finding a sufficient basis in the record for its

finding and concluding its grant of the variance was consistent with the law and

not arbitrary, capricious, or unreasonable. Judge Mendez found the record

supports the Board's determination that the general welfare was served by

turning a blighted property to one that is aesthetically pleasing and utilizes on-

site parking. The judge also agreed with the Board's determination that the

proposed use was consistent with the character of the neighborhood, and thus,

no substantial detriment to the public good could be identified as a result of the

development of the property.

2 Although the Board also granted certain bulk variances and design waivers to Shore Investment, plaintiffs challenge only the Board's grant of a use variance. A-4734-18T2 5 This appeal followed. Plaintiffs make the following arguments for our

consideration:

POINT I

NO SPECIAL REASONS W[E]RE PRESENTED TO JUSTIFY THE GRANTING OF A USE VARIANCE BY THE PLANNING BOARD.

POINT II

THE ACTION OF THE BOARD AMOUNTS TO A REZONING OF THE AREA CONTRARY TO THE EXPRESSED WILL OF THE GOVERNING BODY.

II.

Our review of a local planning board's action is limited. The Board's

decision may be set aside only if it was arbitrary, capricious, or unreasonable.

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

v. BPR Co., 107 N.J. 1, 15 (1987). A planning board's actions are presumed to

be valid because of its knowledge of local conditions, and the burden of proving

otherwise rests with the challenging party. Burbridge v. Twp. of Mine Hill, 117

N.J. 376, 385 (1990). "The proper scope of judicial review is not to suggest a

decision that may be better than the one made by the board, but to determine

whether the board could reasonably have reached its decision on the record."

Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005).

A-4734-18T2 6 The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, "gives

full authority to municipal boards of adjustment to grant use variances on the

affirmative vote of five members." Medici, 107 N.J. at 19. First, the MLUL

gives a board the authority to "grant a variance to allow departure from [zoning]

regulations" upon a showing of "special reasons" to justify the variance.

N.J.S.A. 40:55D-70(d). Second, a use variance will not be granted "without a

showing that such 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." Ibid.3

When the application does not concern an inherently beneficial use, a

general use variance application requires: (1) satisfying the positive criteria by

showing special reasons as to why "the use promotes the general welfare because

the proposed site is particularly suitable for the proposed use"; and (2) satisfying

the negative criteria by proving "the variance can be granted without substantial

detriment to the public good" and demonstrating "through an enhanced quality

of proof . . . that the variance sought is not inconsistent with the intent and

3 The "special reasons" requirement is commonly referred to as the "positive criteria," while the substantial detriment to the public good and zone plan impairment are the "negative criteria." Salt & Light Co. v. Willingboro Twp. Zoning Bd. of Adjustment, 423 N.J. Super. 282, 287 (App. Div. 2011). A-4734-18T2 7 purpose of the master plan and zoning ordinance." Smart SMR v. Borough of

Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998) (internal quotations

omitted). The enhanced quality of proof on the negative criteria requires

"specific findings by the board of adjustment . . . ." Medici, 107 N.J. at 4.

Determining whether a parcel is particularly suitable for the proposed use

is inherently site-specific, Stop & Shop Supermarket Company v. Board of

Adjustment, 162 N.J. 418, 431 (2000), and signals that "strict adherence to the

established zoning requirements would be less beneficial to the general welfare."

Price v. Himeji, LLC, 214 N.J 263, 287 (2013) (citing Kramer v. Bd. of

Adjustment, 45 N.J. 268, 290-91 (1965)); see also Burbridge, 117 N.J. at 387-

88 (finding aesthetic improvement to a property as a permissible special reason).

As stated by the Court in Price,

the inquiry concerning whether a proposed use variance should be granted . . . is an inherently fact-specific and site-sensitive one. Although the availability of alternative locations is relevant to the analysis, demonstrating that a property is particularly suitable for a use does not require proof that there is no other potential location for the use[,] nor does it demand evidence that the project "must" be built in a particular location. Rather, it is an inquiry into whether the property is particularly suited for the proposed purpose, in the sense that it is especially well-suited for the use, in spite of the fact that the use is not permitted in the zone. Most often, whether a proposal meets that test will depend on the adequacy of the record compiled

A-4734-18T2 8 before the zoning board and the sufficiency of the board's explanation of the reasons on which its decision to grant or deny the application for a use variance is based.

[214 N.J. at 292-93.]

In addition, demonstrating that a variance can be granted without

substantial detriment to the public good "focuses on the effect that granting the

variance would have on the surrounding properties." Id. at 286. Showing the

variance will not substantially impair the intent and purpose of the zoning

scheme involves "reconcil[ing] the grant of the variance for the specific project

at the designated site with the municipality's contrary determination about the

permitted uses as expressed through its zoning ordinance." Ibid.

Having carefully reviewed plaintiffs' arguments in light of the record and

applicable legal principles, we affirm the May 28, 2019 order for the reasons

stated by Judge Mendez in his thorough and well-reasoned oral opinion.

We add the following comments. The record before the Board included

evidence that Shore Investment's property was well suited for the construction

of a duplex, given that the structure would meet all open space and light

requirements of the zone and would be no larger than a single-family home

permitted on the site by zoning regulations. In addition, there are existing multi-

A-4734-18T2 9 family uses in the property's neighborhood, including immediately adjacent to

the rear of the property.

The record contains no evidence of a substantial detriment to the public

good from development of the property with a duplex. To the contrary, the

proposed construction would replace a dilapidated bungalow on an overgrown

lot with a new home on a landscaped plot with on-site parking, lessening the

parking density burden addressed in the city's redevelopment plan. The new

structure also meets federal flood damage prevention regulations, further

benefiting the neighborhood. Finally, there is support in the record for the

Board's determination that the duplex would not substantially impede the intent

and purpose of the zone, which contemplates existing multi-family uses, and a

variety of uses other than single-family homes.

To the extent we have not specifically addressed plaintiffs' remaining

arguments, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-4734-18T2 10