NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0388-19T3
TWO DAUGHTERS, LLC,
Plaintiff-Appellant,
v.
HARBOUR BAY, LLC, THE CITY OF MARGATE PLANNING BOARD and THE CITY OF MARGATE,
Defendants-Respondents. ___________________________
Argued telephonically September 15, 2020 – Decided October 7, 2020
Before Judges Fisher and Gummer.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0990-18.
Anthony Monzo argued the cause for appellant (Monzo Catanese Hillegass, PC, attorneys; Louis A. DeLollis, on the briefs).
Benjamin Zeltner argued the cause for respondent Harbour Bay, LLC (Levine, Staller, Sklar, Chan & Brown, PA, attorneys; Benjamin Zeltner, on the brief). Elias T. Manos argued the cause for respondent The City of Margate Planning Board.
John Scott Abbott argued the cause for respondent The City of Margate.
PER CURIAM
Plaintiff Two Daughters, LLC, appeals from a final judgment rejecting its
prerogative-writs challenge to defendant City of Margate Planning Board's
approval of defendant developer Harbour Bay, LLC's application for variance
relief and site-plan approval and to two municipal ordinances adopted by
defendant City of Margate. We substantially agree with the comprehensive
analysis of Judge Julio L. Mendez and affirm.
Plaintiff is the owner of Sophia's, a restaurant that is across the street from
the Harbour Bay property at issue. With structures that have been on the
property since the 1960s, the Harbour Bay property is in need of redevelopment.
Harbour Bay submitted to the Board an application in which it sought
preliminary and final major site plan approval of its redevelopment plan for the
property. Harbour Bay proposed to demolish the existing structures on the
property and build a mixed-use building occupying the same footprint as the
existing building with an approximately 2600-square-foot new addition. That
new building would consist of an office, a 149-seat restaurant, and a bait shop
A-0388-19T3 2 and would be elevated to meet FEMA requirements. Harbour Bay proposed
completely rebuilding the existing marina, with a new bulkhead that would help
to reduce flooding, a boat fueling station, and a public pedestrian boardwalk. In
its application Harbour Bay also sought variance relief pursuant to N.J.S.A.
40:55D-70(c) and a waiver from the submission of a written traffic impact study.
The Board conducted a hearing on Harbour Bay's application on February
22, 2018. During that hearing, the Board heard testimony from Harbour Bay's
planning expert, engineer, architect, and traffic-engineer expert, and members
of the public.1 It heard the testimony of the Board's planner and reviewed his
report and the report of the City's engineer. No one presented expert testimony
opposing the applications or contesting the conclusions of Harbour Bay's expert
witnesses. Plaintiff's representatives attended the hearing, but did not testify,
present any witnesses, or oppose Harbour Bay's application.
In an eleven-page Decision and Resolution, the Board granted the
application, finding that Harbour Bay's proposed project was proper in all
1 Plaintiff cites to the "numerous objectors" who spoke at the hearing as evidence of the adverse impact plaintiff claims this project will have on neighboring properties. In fact, only three members of the public spoke in opposition to the proposal. Two people spoke in favor of it. One business owner expressed concern about how the construction of the project would impact businesses during summer months. A-0388-19T3 3 respects, would revitalize the bay-front area and advance the City's Master Plan
and the purposes of the Waterfront Special District zone in which the property
was located, and, as a whole, would advance several zoning purposes, citing
N.J.S.A. 50:55D-2. As to the requested variances, the Board concluded, among
other things, that they would advance the goals of the Municipal Land Use Law
("MLUL"), N.J.S.A. 40:55D-1 to -163, their benefits would outweigh any
detriment, they were justified by physical features and constraints affecting the
property, and they would not cause a substantial detriment to the public or impair
the intent of the zoning plan and ordinance. The Board set forth specifically its
factual conclusions, including conclusions regarding setbacks, signage, parking,
and fencing, and its reasons for granting the request to waive the submission of
a written traffic-impact study.
When Harbour Bay submitted its application, the Harbour Bay property
was located in part in a designated Waterfront Special District and in part in a
riparian district, which did not permit restaurant or office uses. According to
the Board's zoning officer and planner, the existing boundary line between those
districts was created by mistake in 2008 and had the unintentional effect of
rendering existing businesses non-conforming. Harbour Bay proposed that the
boundary line between the districts be relocated to its prior location, with
A-0388-19T3 4 existing uses reverting to being conforming uses in the Waterfront Special
District. After an investigation by the City, the Board's issuance of a
Consistency Report recommending the adoption of an ordinance resetting the
boundary line, and the required publication of the proposed ordinance, and
having received no opposition, the City adopted Ordinance No. 02-2018 during
a public meeting held on February 1, 2018. The ordinance had the effect of
moving the district boundary line, impacting approximately forty-two
properties.
On October 4, 2018, the City adopted Ordinance No. 24-2018, a
comprehensive ordinance that revised in many respects the land use chapter of
the City's Code, including a revision regarding parking requirements. The
amendment to that section of the Code had the effect of including property
located in the Waterfront Special District and riparian zones in the Code’s
existing on-site parking allowance.2
On May 4, 2018, plaintiff filed its complaint in lieu of prerogative writs,
challenging each of the Board's decisions regarding the Harbour Bay application
and, more than ninety days after the City had adopted it, Ordinance No. 02-2018.
2 It also reduced the required number of parking spaces for restaurants. Plaintiff does not challenge that aspect of the ordinance. A-0388-19T3 5 Plaintiff later amended its complaint to include a challenge to Ordinance No.
24-2018. After hearing oral argument, Judge Mendez issued a final order and a
twenty-page opinion in which he held that the Board's decisions were not
arbitrary, capricious, or unreasonable; upheld the validity of Ordinance Nos. 02-
2018 and 24-2018; and found that plaintiff's challenge to Ordinance No. 02-
2018 was time barred.
Plaintiff appeals each aspect of the court's decision. Plaintiff argues that
the trial court should have found that the Board's decisions were arbitrary,
capricious, and unreasonable because Harbour Bay failed to present evidence
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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-0388-19T3
TWO DAUGHTERS, LLC,
Plaintiff-Appellant,
v.
HARBOUR BAY, LLC, THE CITY OF MARGATE PLANNING BOARD and THE CITY OF MARGATE,
Defendants-Respondents. ___________________________
Argued telephonically September 15, 2020 – Decided October 7, 2020
Before Judges Fisher and Gummer.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0990-18.
Anthony Monzo argued the cause for appellant (Monzo Catanese Hillegass, PC, attorneys; Louis A. DeLollis, on the briefs).
Benjamin Zeltner argued the cause for respondent Harbour Bay, LLC (Levine, Staller, Sklar, Chan & Brown, PA, attorneys; Benjamin Zeltner, on the brief). Elias T. Manos argued the cause for respondent The City of Margate Planning Board.
John Scott Abbott argued the cause for respondent The City of Margate.
PER CURIAM
Plaintiff Two Daughters, LLC, appeals from a final judgment rejecting its
prerogative-writs challenge to defendant City of Margate Planning Board's
approval of defendant developer Harbour Bay, LLC's application for variance
relief and site-plan approval and to two municipal ordinances adopted by
defendant City of Margate. We substantially agree with the comprehensive
analysis of Judge Julio L. Mendez and affirm.
Plaintiff is the owner of Sophia's, a restaurant that is across the street from
the Harbour Bay property at issue. With structures that have been on the
property since the 1960s, the Harbour Bay property is in need of redevelopment.
Harbour Bay submitted to the Board an application in which it sought
preliminary and final major site plan approval of its redevelopment plan for the
property. Harbour Bay proposed to demolish the existing structures on the
property and build a mixed-use building occupying the same footprint as the
existing building with an approximately 2600-square-foot new addition. That
new building would consist of an office, a 149-seat restaurant, and a bait shop
A-0388-19T3 2 and would be elevated to meet FEMA requirements. Harbour Bay proposed
completely rebuilding the existing marina, with a new bulkhead that would help
to reduce flooding, a boat fueling station, and a public pedestrian boardwalk. In
its application Harbour Bay also sought variance relief pursuant to N.J.S.A.
40:55D-70(c) and a waiver from the submission of a written traffic impact study.
The Board conducted a hearing on Harbour Bay's application on February
22, 2018. During that hearing, the Board heard testimony from Harbour Bay's
planning expert, engineer, architect, and traffic-engineer expert, and members
of the public.1 It heard the testimony of the Board's planner and reviewed his
report and the report of the City's engineer. No one presented expert testimony
opposing the applications or contesting the conclusions of Harbour Bay's expert
witnesses. Plaintiff's representatives attended the hearing, but did not testify,
present any witnesses, or oppose Harbour Bay's application.
In an eleven-page Decision and Resolution, the Board granted the
application, finding that Harbour Bay's proposed project was proper in all
1 Plaintiff cites to the "numerous objectors" who spoke at the hearing as evidence of the adverse impact plaintiff claims this project will have on neighboring properties. In fact, only three members of the public spoke in opposition to the proposal. Two people spoke in favor of it. One business owner expressed concern about how the construction of the project would impact businesses during summer months. A-0388-19T3 3 respects, would revitalize the bay-front area and advance the City's Master Plan
and the purposes of the Waterfront Special District zone in which the property
was located, and, as a whole, would advance several zoning purposes, citing
N.J.S.A. 50:55D-2. As to the requested variances, the Board concluded, among
other things, that they would advance the goals of the Municipal Land Use Law
("MLUL"), N.J.S.A. 40:55D-1 to -163, their benefits would outweigh any
detriment, they were justified by physical features and constraints affecting the
property, and they would not cause a substantial detriment to the public or impair
the intent of the zoning plan and ordinance. The Board set forth specifically its
factual conclusions, including conclusions regarding setbacks, signage, parking,
and fencing, and its reasons for granting the request to waive the submission of
a written traffic-impact study.
When Harbour Bay submitted its application, the Harbour Bay property
was located in part in a designated Waterfront Special District and in part in a
riparian district, which did not permit restaurant or office uses. According to
the Board's zoning officer and planner, the existing boundary line between those
districts was created by mistake in 2008 and had the unintentional effect of
rendering existing businesses non-conforming. Harbour Bay proposed that the
boundary line between the districts be relocated to its prior location, with
A-0388-19T3 4 existing uses reverting to being conforming uses in the Waterfront Special
District. After an investigation by the City, the Board's issuance of a
Consistency Report recommending the adoption of an ordinance resetting the
boundary line, and the required publication of the proposed ordinance, and
having received no opposition, the City adopted Ordinance No. 02-2018 during
a public meeting held on February 1, 2018. The ordinance had the effect of
moving the district boundary line, impacting approximately forty-two
properties.
On October 4, 2018, the City adopted Ordinance No. 24-2018, a
comprehensive ordinance that revised in many respects the land use chapter of
the City's Code, including a revision regarding parking requirements. The
amendment to that section of the Code had the effect of including property
located in the Waterfront Special District and riparian zones in the Code’s
existing on-site parking allowance.2
On May 4, 2018, plaintiff filed its complaint in lieu of prerogative writs,
challenging each of the Board's decisions regarding the Harbour Bay application
and, more than ninety days after the City had adopted it, Ordinance No. 02-2018.
2 It also reduced the required number of parking spaces for restaurants. Plaintiff does not challenge that aspect of the ordinance. A-0388-19T3 5 Plaintiff later amended its complaint to include a challenge to Ordinance No.
24-2018. After hearing oral argument, Judge Mendez issued a final order and a
twenty-page opinion in which he held that the Board's decisions were not
arbitrary, capricious, or unreasonable; upheld the validity of Ordinance Nos. 02-
2018 and 24-2018; and found that plaintiff's challenge to Ordinance No. 02-
2018 was time barred.
Plaintiff appeals each aspect of the court's decision. Plaintiff argues that
the trial court should have found that the Board's decisions were arbitrary,
capricious, and unreasonable because Harbour Bay failed to present evidence
that a hardship would result if the requested variances were not granted, granting
the variances would not cause substantial detriment to the public, or positive
criteria for the variances existed. Plaintiff also faults the court for upholding
the Board's decision not to require a traffic study. Plaintiff asserts that the trial
court erred in deciding that plaintiff's spot-zoning challenge to Ordinance No.
02-2018 was time-barred, Ordinance No. 02-2018 was valid and did not
constitute improper spot zoning, and the City's adoption of Ordinance No. 24-
2018 was not arbitrary, capricious, or unreasonable.
Courts do not determine the wisdom of a planning board action.
Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 558 (1988). Land-use
A-0388-19T3 6 decisions "are entrusted to the sound discretion of the municipal boards . . . ."
Ibid. Courts defer to decisions of local boards if they are adequately supported
by the record, Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 61 (1999), and if
they are not arbitrary, unreasonable, or capricious, Pullen v. Twp. of S.
Plainfield Planning Bd., 291 N.J. Super 1, 6 (App. Div. 1996). A party
challenging a board's decision must establish that the board's action was
arbitrary, unreasonable, or capricious. Price v. Himeji, LLC, 214 N.J. 263, 284
(2013). A board's factual determinations are entitled to "great weight" and
should not be disturbed "unless there is insufficient evidence to support them."
Rowatti v. Gonchar, 101 N.J. 46, 52 (1985). When reviewing a board decision,
a court must consider the issues before the board in their entirety and not focus
on the legal sufficiency of one factor standing alone. Kramer v. Bd. of
Adjustment, 45 N.J. 268, 287 (1965). For example, a court cannot consider a
variance in isolation, but must consider it "in the context of its effect on the
development proposal, the neighborhood, and the zoning plan." Pullen, 291 N.J.
Super. at 9.
Our role in reviewing zoning ordinances is narrow. Zilinksy v. Zoning
Bd. of Adjustment of Verona, 105 N.J. 363, 367 (1987). Courts recognize that
because of their familiarity with their communities, local officials "are best
A-0388-19T3 7 suited to make judgments concerning local zoning ordinances." Pullen, 291
N.J. Super. at 6. Thus, we presume that a governing municipal body's actions
are valid. Jayber Inc. v. Mun. Council of W. Orange, 238 N.J. Super. 165, 173
(App. Div. 1990). We defer to its judgment "so long as its decision is
supported by the record and is not so arbitrary, unreasonable or capricious as
to amount to an abuse of discretion." Ibid. The party challenging the
ordinance must overcome its presumption of validity. Riggs v. Long Beach,
109 N.J. 601, 611 (1988). If an ordinance is "debatable, it should be upheld."
Ibid.
With the MLUL, our Legislature authorized municipalities to enact and
amend zoning ordinances. See N.J.S.A. 40:55D-62(a); see also Riya Finnegan
LLC v. Twp. Council of S. Brunswick, 197 N.J. 184, 191 (2007). A
municipality may amend a zoning ordinance while a site-plan application is
pending; it may amend an ordinance in direct response to a pending
application. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378-79 (1995); see also House of Fire Christian Church v. Zoning Bd. of
Adjustment of Clifton, 379 N.J. Super. 526, 541-42 (App. Div. 2005). The
amendment simply must be consistent with the MLUL. Manalapan, 140 N.J.
at 379.
A-0388-19T3 8 Applying these standards, we find no cause to disturb Judge Mendez's
carefully perpended findings, all of which are well supported by the record.
We reject plaintiff's contention that the Board made inadequate findings to
support its conclusions. To the contrary, after considering the unopposed
expert testimony and other evidence presented during its hearing on Harbour
Bay's application, the Board issued a detailed resolution spelling out the
reasons for its approval of the application, including the request for variances
on setbacks, fencing, signage, and parking. We agree with Judge Mendez's
conclusion that the Board appropriately contemplated the impact the project
would have on the neighboring properties and the zone.
As for the waiver of the traffic study, the court correctly noted that it was
within the Board's discretion to determine if it needed a traffic study and
reasonably found that the Board acted within its discretion when it determined
that a written study was not necessary when the expert who would author that
study would be available at the hearing and could be questioned by members of
the Board and the public.
We find no reason to disturb Judge Mendez's findings as to the ordinances.
Judge Mendez acted within his discretion in finding plaintiff's challenge to
Ordinance No. 02-2018 to be time barred by Rule 4:69-6 and in rejecting
A-0388-19T3 9 plaintiff's attempt to enlarge the time to make that challenge. See Tri-State Ship
Repair & Dry Dock Co. v. City of Perth Amboy, 349 N.J. Super. 418, 423-24
(App. Div. 2002). Judge Mendez's determination that Ordinance No. 02-2018
did not constitute impermissible spot zoning was supported by credible evidence
in the record regarding its impact on approximately forty-two other properties
and the prior erroneous setting of the boundary line. See Riva Ltd. Liab. Co. v.
Twp. Council of S. Brunswick, 197 N.J. 184, 187 (2008). His finding that
Ordinance No. 24-2018 serves the general welfare of the zone and a legitimate
purpose by facilitating redevelopment of dilapidated properties and reducing the
number of variances requested also is supported by the record and the law. See
Price, 214 N.J. at 284 (recognizing that MLUL "exhibits a preference for
municipal land use planning by ordinance rather than by variance").
All of Judge Mendez's findings were supported by sufficient evidence in
the record. His findings, and the findings of the Board and the City, are entitled
to our deference. We, therefore, affirm substantially for the reasons set forth
by Judge Mendez in his well-reasoned and thorough written opinion.
Affirmed.
A-0388-19T3 10