Opinion
DOCKET NO. A-4199-13T4
01-13-2016
ANGELA AGAZZI, Plaintiff-Appellant, v. GOVERNING BODY OF THE BOROUGH OF RED BANK, Defendant-Respondent.
Ronald S. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the briefs). Daniel J. O'Hern, Jr. argued the cause for respondent (Byrnes, O'Hern & Heugle, LLC, attorneys; Mr. O'Hern, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Carroll, and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3653-12. Ronald S. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the briefs). Daniel J. O'Hern, Jr. argued the cause for respondent (Byrnes, O'Hern & Heugle, LLC, attorneys; Mr. O'Hern, on the brief). PER CURIAM
Plaintiff Angela Agazzi appeals from the Law Division's April 22, 2014 judgment dismissing her complaint in lieu of prerogative writs that sought to invalidate a series of zoning ordinances adopted by defendant Borough of Red Bank. For the reasons that follow, we affirm.
While not strictly relevant to this appeal, we begin by noting that this matter has its genesis in a 2010 application filed by RBank Capital, LLC. RBank proposed to construct a Hampton Inn and Suites Hotel on a 1.04 acre property known as Block 1, Lot 1. The property borders the Navesink River and is located at the northwest corner of Rector Place and State Highway 35, in the Borough's Waterfront Development District (the WD Zone).
At the time of the Hampton Inn application, the height requirements for the WD Zone as set forth in Borough Ordinance No. 490-150 provided in relevant part:
The elevation of the highest point of any flat roof deck . . . of the mean height level between the eaves and ridge for gable or hipped roofs or of the deck line for mansard roofs shall not exceed:
(a) Elevation 50 (Use & GS Datum MSL=0) between the Navesink River and a line halfway between the Navesink River and the nearest parallel roadway (Front Street, Riverside Avenue, Rector Place, or Shrewsbury Avenue).
(b) Elevation 75 (US & GS Datum MSL=0) in the remainder of the zone.
(c) Further, and notwithstanding any other provisions of this subsection, any property within this zone may build to an elevation not to exceed 140 feet (USC & GS Datum MSL=0) inclusive of all chimneys, ventilators, skylights, tanks, stair towers, elevator and mechanical penthouses, noncommercial radio and television antennas, HVAC equipment and other similar rooftop appurtenances . . . .
Under the ordinance, the maximum permitted height in the WD Zone is measured from mean sea level (MSL). --------
While the application was pending, a request for interpretation of the ordinance was made to the Borough's Zoning Board of Adjustment (ZBA) due to confusion as to which of the "three [] allowable height elevations, i.e. 50 feet, 75 feet, and/or 140 feet," applied to the subject property. The ZBA conducted four public hearings on the interpretation request. Ultimately it adopted a resolution on June 21, 2012, concluding that the fifty-foot limitation applied. Pertinent to this appeal, the resolution further stated that "[t]here is an inherent ambiguity in the subject ordinance" and that "the existing ordinance is confusing and vague." Additionally, the ZBA found:
• The confusing height/elevation standards in the subject ordinance, with its three (3) potential variations, have proven to be difficult to read, comprehend, interpret, and/or apply.
. . . .
• The existing ordinance is technically confusing — and a literal reading of the same leads a reasonable person into an architectural/engineering quagmire/abyss.
• The absence of a clearly defined ordinance which identifies the maximum allowable structure height in the zone has caused, and will continue to cause, confusion amongst the Borough's Zoning Office, developers, objectors, and the public at large.
• Per the testimony and evidence presented, other zones within the municipality do not appear to have similarly confusing standards in the controlling ordinances.
• In light of the confusion, the Zoning Board will consider the possibility of requesting the Borough Council . . . to clarify the confusing ordinance (as the same relates to the Height/Elevation Standards).
By letter dated June 25, 2012, the attorney for the ZBA "requested that the Borough Council promptly consider an official review of [Ordinance No. 490-150] so as to ascertain if the same can or should be clarified." He added that the ZBA took no position on either the "underlying Hampton Inn [z]oning [a]pplication" or "what the ultimate Height/Elevation Ordinance should be."
The Borough engaged a planner, Richard S. Cramer, P.P., A.I.C.P., to review the ZBA's request. Cramer issued a report containing two planning recommendations. Cramer first recommended that the height regulation for the WD Zone be amended to set a maximum permitted height of 75 feet above the MSL, and "eliminate the two other height standards of 50 feet and 140 feet which currently exist." He explained:
The Red Bank Master Plan . . . for the WD district recognizes the unique characteristics of developing on the river's edge and recommends that the zoning regulations for the WD district: "Set height limits that are compatible with adjacent areas of downtown and the mixed use neighborhoods." (1995 Master Plan, page 10). Other than the recommendation for compatibility, the Master Plan does not further quantify the height standard for the WD [Z]one.
There is a variation of existing building heights within the WD [Z]one, but the number of buildings that are more than five or six stories appear to be few, and many buildings are less. Simplifying the maximum permitted building height standard of the WD [Z]one to a maximum of 75 feet above the MSL would apply a uniform standard throughout the zone, clarify how it is to be administered, and thereby resolve the interpretive difficulties that the Borough has experienced. Moreover, it would satisfy the compatibility standard recommended by the Master Plan for the zone since, at 75 feet above MSL, building heights of five to six stories would, depending upon the ground elevation of the property, continue to be achievable within the zone.
Second, Cramer noted that, with the exception of Block 1, Lot 1, all of the lots in the WD Zone on the west side of Rector Place were residential properties. In his opinion, "the planning intent of the Borough . . . is to conserve the residential character of this area rather than altering it with the mixed uses and multifamily uses emphasized by the land use plan for the WD district." Therefore, Cramer recommended that, except for Block 1, Lot 1, "the west side of Rector Place from NJSH 35 to West Front Street be categorized as a residential area for planning purposes and be included on the zone map as part of the [R-B2] residential zone district."
Based on these recommendations, the Borough enacted the three zoning ordinances at issue in this appeal. Ordinance No. 2012-15 (Ordinance 15) amended the Borough's zoning map to re-classify sixteen residential properties located on Rector Place from the WD Zone to the R-B2 Zone. Ordinance No. 2012-17 (Ordinance 17) removed from the WD Zone those lots that it added to the R-B2 district in Ordinance 15, and established a uniform height limitation of seventy-five feet above MSL throughout the WD Zone. At the same time, the Borough enacted Ordinance No. 2012-16 (Ordinance 16) to add "special requirements" that all future development in the R-B2 district on properties abutting or contiguous with the Navesink River include a twenty-five foot wide access easement and "[a]ppropriate provisions for passive enjoyment of river views by residents and the general public."
Before adopting these ordinances, the Borough referred them for review by its Planning Board. On July 16, 2012, "[t]he Board discussed the ordinances and found that they are in conformance with the Master Plan and recommended [their] adoption by the governing body."
The Borough held a public hearing on the ordinances on July 25, 2012, at which Cramer and planner Gordon Gemma, retained by an objector, testified. Prior to the public hearing, the Borough served personal notice of Ordinance 15 on all property owners within the R-B2 district as well as those within 200 feet of the zone boundaries. Additionally, the Borough Clerk published a notice in the Asbury Park Press as to all three proposed ordinances. At the time of the July 25 hearing, RBank had withdrawn its application without prejudice, and it was no longer pending before the Planning Board. At the conclusion of the public hearing the governing body voted unanimously to adopt the three ordinances.
Plaintiff filed a timely complaint in lieu of prerogative writs. Although plaintiff's complaint challenged the adoption of the three ordinances, at trial she did not challenge Ordinance 15. Rather, she argued that N.J.S.A. 40:55D-62.1 required personal notice of proposed Ordinance 17 to all property owners and that the absence of such personal notice rendered that ordinance invalid. She also alleged that Ordinance 17 is contrary to the Master Plan and constitutes illegal spot zoning. Additionally, plaintiff argued that Ordinance 16 illegally zones certain parcels for open space, and that ordinances 16 and 17 are designed to secure a benefit from the hotel developer and the sixteen properties being re-zoned. Thus, plaintiff argues that ordinances 16 and 17 represent impermissible contract zoning.
Judge Thomas F. Scully conducted a two-day trial on March 17 and 18, 2014. Plaintiff called her planner, P. David Zimmerman, as an expert witness. Zimmerman opined that Ordinance 17 would result in a "higher density of use and a significantly higher number of hotel rooms" by allowing construction of a seventy-five-foot rather than a fifty-foot hotel. He also testified that Ordinance 17 is not consistent with the Master Plan, and that personal notice to property owners in accordance with N.J.S.A. 40:55D-62.1 should have been given prior to its adoption. He further concluded that the ordinances were a "classic case of spot zoning" because they were adopted to promote the Hampton Inn application rather than the public interest.
Cramer testified for the Borough. He explained that the WD Zone is the only district that measures height from the MSL, a factor that is important in comparing the height standards among the districts. Consequently,
anywhere within those [other] districts, which would be the central commercial development district 2 and the B-R1 district, the elevations where you're starting with potentially to measure a building are at elevation 40 to 46. If you have a 40 foot height limit in those zones in say CCD1, and you're starting to put up a building at elevation 46 with finished — and that's the finished grade at the corners of the building, the top of the building is going to be at 86 feet above [MSL].
Within the waterfront development district, which is a district where you measure from [MSL], the top of the building height based upon Ordinance [17] is at 75 feet. So that the — if you're comparing the height of the building based upon [MSL] in these two zones, you have in those adjacent zones that are outside the WD heights that can go up to 80 to 85 feet depending upon the actual elevation that they're built at. Whereas in the WD zone, the building is going to top out at 75 feet above [MSL].
Cramer opined that the uniform seventy-five foot height limitation in the WD Zone is consistent with the Master Plan and advances the purposes of zoning under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. He also concluded that Ordinance 17 will not impact either the character or future development of the WD Zone. Cramer explained:
Well, what was changed was a system of height standards within the zone. And the height that became the uniform standard, it was a height that was already in existence
within the zone, and it was widespread as far as its applicability to the district. Other standards . . . that affect the character of the zone were left unchanged. There was no change to any of the permitted uses within the WD district. It continue[s] to be a mixed use district and oriented toward the waterfront.
There were no changes to the standards that control residential density within the district. They stayed the same. There were no changes to the standards that control the intensity and the actual size of a building in terms of the floor area ratio calculation. That [stayed] the same. There was no change to the minimum lot requirements. There was no change to the setback requirements for the buildings. The single change that occurred was the change to the height standard. And in my opinion, that change will not affect the character of the district and how it's used and developed.
The court entered a final judgment dismissing plaintiff's complaint on April 22, 2014. In a detailed written opinion, Judge Scully found that the Borough's adoption of the three ordinances was not arbitrary, capricious, or unreasonable. The judge carefully reviewed our decision in Pacilli Homes, L.L.C. v. Township of Woolwich, 394 N.J. Super. 319 (App. Div. 2007), and determined that "the facts and circumstances of this matter and the ultimate [e]ffect is markedly distinguishable" from Pacilli. Judge Scully was "unable to conclude that [Ordinance 17] resulted in a dramatic alteration in the intensity of the uses within the [WD] Zone." Rather, he found that Ordinance 17 did not constitute a "sweeping change in character" and therefore lack of personal notice to affected property owners was not a basis to invalidate the ordinance. The judge was "further convinced after reviewing, in detail, the Master Plan . . . and considering the expert testimony interpreting same, that Ordinance [] 17, in the final analysis, is indeed consistent with that plan." Finally, the judge rejected plaintiff's spot zoning argument, finding instead "that the collective interests of the community were ultimately the primary motivating factor for the action taken."
Plaintiff appeals, and renews the arguments that she presented to the trial court. After reviewing the record and mindful of our standard of review, we affirm the trial judge's findings rejecting plaintiff's various challenges to the ordinances. We do so substantially for the reasons set forth in Judge Scully's cogent written decision dated April 7, 2014. We amplify Judge Scully's analysis in the following discussion.
Municipal zoning ordinances enjoy a presumption of validity. Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338, 350 (2003); Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 380 (1995); Zilinsky v. Bd. of Adjustment of Verona, 105 N.J. 363, 368 (1987). This presumption may be overcome by proof that the ordinance is arbitrary, unreasonable or capricious, or plainly contrary to fundamental principles of zoning or the zoning statute. Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 289-90 (2001), cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002); Riggs v. Long Beach, 109 N.J. 601, 610-11 (1988); Bow & Arrow Manor, Inc. v. West Orange, 63 N.J. 335, 343 (1973). "This showing may be made with respect to the facial validity of a zoning ordinance or its application to particular property." Bailes v. Twp. of East Brunswick, 380 N.J. Super. 336, 348 (App. Div.) (citations omitted), certif. denied, 185 N.J. 596 (2005).
A zoning ordinance must generally meet four criteria: (1) it must advance one of the purposes of the MLUL delineated in N.J.S.A. 40:55D-2; (2) it must be substantially consistent with the land use element and the housing element of the master plan; (3) it must comport with constitutional constraints on the zoning power, including those pertaining to due process, equal protection and the prohibition against confiscation; and (4) the municipality must follow the prescribed procedures for adopting the ordinance. Riggs, supra, 109 N.J. at 611-12.
Further, "an ordinance that may operate reasonably in some circumstances and unreasonably in others is not void in toto, but is enforceable except where in the particular circumstances its operation would be unreasonable and oppressive." Harvard Enters., Inc. v. Bd. of Adjustment of Madison, 56 N.J. 362, 368 (1970). In order to determine whether an ordinance is enforceable when applied to a particular property, it is necessary to determine whether the ends sought to be accomplished by the ordinance justify the restrictions placed on the property and whether the means used are reasonably related to those ends. Pheasant Bridge, supra, 169 N.J. at 293 (citing Home Builders League v. Berlin, 81 N.J. 127, 138 (1979)). In evaluating that question, primary importance is placed on the "reasonableness" of the municipality's chosen means to accomplish an otherwise valid end. Id. at 290, 294.
Reviewed under these principles, the ordinances satisfy the criteria for validity set forth in Riggs, supra, 109 N.J. at 611-12. Although plaintiff does not specifically challenge Ordinance 15, Cramer's analysis supports the conclusion that the boundary change affected thereby is consistent with the Master Plan and a 2008 zoning amendment that restricted the west side of Rector Place to single family use. In his report recommending the boundary change, Cramer noted that these enactments demonstrate the "planning intent of the Borough . . . to conserve the residential character of this area rather than altering it with the mixed uses emphasized by the land use plan for the WD district."
Ordinance 16 does not illegally zone certain parcels for open space or restrict their development, as plaintiff contends. Rather, it merely requires an easement for passive enjoyment of river views. Moreover, the evidence establishes that the requirements of the ordinance are consistent with a twenty-five foot wide easement and right of way previously granted for public access upon and across Block 1, Lot 1 in 1992. The recorded easement recites that it was intended "for use in connection with the Waterfront Plan of the Borough of Red Bank." Accordingly, Ordinance 16 is in accord with the zoning purposes embodied in N.J.S.A. 40:55D-2 and furthers the intent of the Master Plan, which states:
The riverfront is a special resource that is uniquely attractive to private development, but it must also be accessible and useful to the community. Therefore special zoning districts will be created that identif[y] the land uses that are appropriate to the river edge locations, adjacent to the western river edge and to downtown. The regulations and accompanying guidelines will give direction to the need for more open development pattern that maintains views and access to the river from the nearby streets
— while at the same time permitting developments that are similar in density to those in either [the] downtown or the adjacent western neighborhoods.Moreover, plaintiff, whose property seemingly is not affected by Ordinance 16, fails to establish that its easement requirement is confiscatory.
With respect to Ordinance 17, it is undisputed that the prior regulation, which established three allowable height limitations in the WD Zone, was confusing and unworkable. The Borough acted responsibly in reviewing the ordinance at the behest of the ZBA, and then enacting a new regulation that promotes uniformity within the district. Contrary to plaintiff's contention, the ordinance does not contravene the Master Plan, and in fact continues the seventy-five foot height standard that had been included in the ordinance prior to its amendment.
Plaintiff argues, as she did before the trial court, that N.J.S.A. 40:55D-62.1 required the Borough to serve personal notice of proposed Ordinance 17 on all property owners and that its failure to do so renders the ordinance invalid. The statute "directs that all property owners within a zoning district shall receive personal notice if the municipal body seeks to change the classification or boundaries of a zoning district." Pacilli, supra, 394 N.J. Super. at 329. The statute provides in pertinent part as follows:
Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district, exclusive of classification or boundary changes recommended in a periodic general reexamination of the master plan by the planning board . . . shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all real property as shown on the current tax duplicates, located, in the case of a classification change, within the district and within the State within 200 feet in all directions of the boundaries of the district, and located, in the case of a boundary change, in the State within 200 feet in all directions of the proposed new boundaries of the district which is the subject of the hearing.
[N.J.S.A. 40:55D-62.1.]
Here, it is undisputed that Ordinance 17 was not adopted pursuant to a periodic general reexamination of the master plan. Plaintiff contends that personal notice was thus required because Ordinance 17 changed the boundaries of the WD Zone by removing the sixteen properties from that zone. We disagree, since Ordinance 15, not Ordinance 17, changed the boundaries of the WD Zone. The Borough provided the mandatory personal notice with respect to proposed Ordinance 15. Plaintiff does not contest the efficacy of that notice, nor does she provide any persuasive reason why duplicate notice would need to be sent informing property owners of the boundary change.
Alternatively, plaintiff contends that the amended height limitation is so substantial that it changed the WD Zone's classification and thereby triggered the personal notice provision of N.J.S.A. 40:55D-62.1. "Unlike many terms found in the MLUL, 'classification' is not defined." Pacilli, supra, 394 N.J. Super. at 329. We have concluded that, in determining "what constitutes a substantial change and what notice may or may not be required," "the test is not the number of changes but the substance of the changes." Id. at 333. "In other words, the type of notice to be provided on the occasion of a proposed amendment to a zoning ordinance should focus on the substantive effect of the amendment rather than the appellation given to the zone." Id. at 332. See also Mahwah Realty Assocs., Inc. v. Twp. of Mahwah, 430 N.J. Super. 247, 254 (App. Div. 2013) (reiterating that a change in classification is one that "has the capacity to fundamentally alter the character of a zoning district.") (quoting Pacilli, supra, 394 N.J. Super. at 331).
Here, under the prior ordinance, the 50 foot height limitation applied to the portion of the WD Zone "between the Navesink River and a line halfway between the Navesink River and the nearest parallel roadway." The 140 foot limitation applied only under certain conditions. In contrast, the 75 foot height provision applied to "the remainder of the zone." Contrary to plaintiff's argument, adoption of the 75 foot height limitation as a uniform standard did not fundamentally alter the character of the district or the intensity of the use within the WD Zone. Accordingly, personal notice of proposed Ordinance 17 was not mandated by N.J.S.A. 40:55D-62.1, as the trial court correctly concluded.
Like the trial court, we also reject plaintiff's contention that Ordinance 17 constitutes "spot zoning" and is intended to benefit only RBank. "Spot zoning" is "the use of the zoning power to benefit particular private interests rather than the collective interests of the community." Jennings v. Borough of Highlands, 418 N.J. Super. 405, 425 (App. Div. 2011) (quoting Taxpayers Ass'n of Weymouth Twp., Inc. v. Weymouth Twp., 80 N.J. 6, 18 (1976), cert. denied, 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977)).
As our Supreme Court has explained:
The test is whether the zoning change in question is made with the purpose or effect of establishing or furthering a comprehensive zoning scheme calculated to achieve the statutory objectives or whether it is "designed merely to relieve the lot of the burden of the restriction of the general regulation by reason of conditions alleged
to cause such regulation to bear with particular harshness upon it."
[Borough of Cresskill v. Borough of Dumont, 15 N.J. 238, 249 (1954) (quoting Conlon v. Bd. of Pub. Works of City of Paterson, 11 N.J. 363, 366 (1953)).]
Here, the record shows that the zoning change was adopted to promote uniformity in the entire WD Zone. Indeed, the record is replete with evidence that prior to the adoption of Ordinance 17, the height requirements in the district were vague and confusing. Further, the height chosen was already permitted, and as amended the ordinance applies to the entire district, not just to the proposed Hampton Inn site.
Moreover, a zoning change does not constitute "spot zoning" merely because the change may benefit a particular developer, so long as the change is part of a comprehensive plan designed to benefit the community. Powerhouse Arts Dist. Neighborhood Ass'n v. City Council, 413 N.J. Super. 322, 334-35 (App. Div. 2010), certif. denied, 205 N.J. 79 (2011). The record supports the trial court's determination that the zoning changes at issue were enacted as part of a comprehensive plan to advance the general welfare of the community. Therefore, the trial court did not err by rejecting plaintiff's claim of "spot zoning."
Finally, plaintiff argues that Ordinances 16 and 17 constitute impermissible "contract zoning." We have thoroughly considered this argument in light of the record and conclude that it lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION