Opinion
DOCKET NO. A-3803-11T4
02-01-2013
RIYA CRANBURY HOTEL, LLC, Plaintiff-Appellant/Cross-Respondent, v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF CRANBURY, Defendant-Respondent, and AVN HOLDINGS, INC., Defendant-Respondent/Cross-Appellant.
R.S. Gasiorowski argued the cause for appellant/cross-respondent (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, of counsel; Alexis L. Gasiorowski, on the brief). Trishka Cecil argued the cause for respondent (Mason, Griffin & Pierson, P.C., attorneys; Valerie Kimson, of counsel; Michael R. Butler, on the brief). Peter Lanfrit argued the cause for respondent/cross-appellant (Lanfrit and Tullio, LLC, attorneys; Mr. Lanfrit of counsel; Kathryn Kopp, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Harris, and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1720-11.
R.S. Gasiorowski argued the cause for appellant/cross-respondent (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, of counsel; Alexis L. Gasiorowski, on the brief).
Trishka Cecil argued the cause for respondent (Mason, Griffin & Pierson, P.C., attorneys; Valerie Kimson, of counsel; Michael R. Butler, on the brief).
Peter Lanfrit argued the cause for respondent/cross-appellant (Lanfrit and Tullio, LLC, attorneys; Mr. Lanfrit of counsel; Kathryn Kopp, on the brief). PER CURIAM
In this matter we review the Law Division's March 5, 2012 judgment in an action in lieu of prerogative writs involving a municipal land use decision. Plaintiff-objector RIYA Cranbury Hotel, LLC (RIYA) appeals, and defendant-developer AVN Holdings, Inc. (AVN Holdings) cross appeals, from that judgment, which reversed in part (and affirmed in part) the February 3, 2011 development approvals granted to AVN Holding by defendant Township of Cranbury Board of Adjustment (the Board). We affirm.
I.
AVN Holdings filed an application with the Board for preliminary and final site plan approval, a use variance, and several exceptions, seeking to establish and operate a Hyatt-brand hotel, a restaurant/banquet facility, and a wine shop in three separate structures on a consolidated almost-nine-acre lot. The property is located in Cranbury's Highway Commercial (HC) zoning district. Hotels and restaurants are permitted uses in the zone; a wine shop is not.
The parties repeatedly refer to AVN Holdings as applying for "waivers" of site plan design features. In reality, AVN Holdings sought, and the Board granted, "exceptions from the requirements of site plan approval." N.J.S.A. 40:55D-51(b); -76(b); Cf. N.J.S.A. 40:55D-10.3 (providing that one or more submission requirements be waived). The grant of those exceptions is not challenged in this appeal.
The Board conditionally granted the application in all respects, but as noted by the trial judge, its memorializing resolution "is silent as to AVN [Holding's] request for site plan approval and associated [exceptions]." In the Law Division, RIYA challenged three aspects of the Board's decision, contending that: (1) the approval of the banquet facility was improper because an N.J.S.A. 40:55D-70(d)(1) variance was required; (2) the approval of an "iconic" architectural feature attached to the hotel's parapet — referred to as "the blade" — was improper because the feature was a sign, which required one or more N.J.S.A. 40:55D-70(c) variances; and (3) the approval of the use variance for the wine shop was arbitrary, capricious, and unreasonable.
Following a trial, the Law Division affirmed the characterization of the blade as an architectural feature and not a sign requiring a variance, and found that the banquet facility was an accessory use to the permitted restaurant. It reversed the grant of the use variance for the wine shop, finding that AVN Holdings had failed to adduce evidence to support the "enhanced quality of proof" required by Medici v. BPR Co., 107 N.J. 1, 21-23 (1987).
Although the Law Division found that "the Board correctly concluded that the banquet facility . . . is a permitted accessory use to the restaurant in the HC zone," the Board's resolution of approval concluded that it was a permitted, not accessory, use:
Restaurants are a permitted use in the HC zone. The definition of "restaurant" at section 150-7 [of the Land Development Ordinance of Cranbury Township] is "an establishment where food and drink are prepared, served and consumed primarily within the principal building." That definition includes [a] banquet facility, because the functions are the same. Therefore, the banquet facility is a use permitted in the HC zone.
In the trial judge's comprehensive fifteen-page written opinion, he devoted a single, non-dispositive paragraph to an issue that he, not RIYA, had raised at the trial:
Lastly, I am compelled to briefly comment on the conduct of the Board's planner. I recited on the record at trial my concern about the conduct of the Board's consultant. There is no need to repeat it here. Let it suffice to say that consultants are not the eighth member of the Board and should not be cross examining witnesses. These proceedings are not adversarial between the Board and the applicant. They may address concerns about the application, and such concerns may be addressed in their respective reports. This gives an applicant an opportunity to address such concerns before the hearing is conducted. Board consultants may address concerns arising at the time of the hearing through the chairperson thereafter giving the applicant an opportunity to respond. In this case it was obvious that the plannerThe opinion concluded by ordering that the Board's grant of the wine shop use variance was reversed. The appeal and cross-appeal followed.
attempted to assist [AVN Holdings's planning expert] with her proofs. In the eyes of the public, the effect can put the impartiality of the Board in question.
II.
A.
An appellate court's review of "'a municipal board's action on zoning and planning matters, such as variance applications, [is] limited to determining whether the board's decision was arbitrary, unreasonable, or capricious.'" Columbro v. Lebanon Twp. Zoning Bd. of Adj., 424 N.J. Super. 501, 508 (App. Div. 2012) (quoting Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adj., 343 N.J. Super. 177, 198 (App. Div. 2001)). This scope of review stems from
the fact "that local citizens familiar with a community's characteristics and interests are best equipped to assess the merits of variance applications." Med. Ctr. at Princeton[], [supra,], 343 N.J. Super. [at] 198 []. A reviewing court's analysis must focus on the validity of the Board's action; it is not within this court's mandate to substitute our judgment for the proper exercise of the Board's discretion. Fallone Prop. L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004). Although the scope of review of a local governmental agency decision is circumscribed, it is "'not simply a pro forma exercise in which [the court] rubber
stamp[s] findings that are not reasonably supported by the evidence.'" In re Taylor, 158 N.J. 644, 657 (1999) (quoting Chou v. Rutgers, State Univ., 283 N.J. Super. 524, 539 (App. Div. 1995), certif. denied, 145 N.J. 374 (1996)). The court's authority and duty is to review the record before the Board in order to determine whether the Board's decision was adequately supported by the evidence. Lang v. Zoning Bd. of Adj. of N. Caldwell, 160 N.J. 41, 58 (1999).
[CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd./Bd. of Adj., 414 N.J. Super. 563, 577-78 (App. Div. 2010).]
B.
RIYA's primary contention on appeal is its newly minted challenge to the fairness of the seven hearings before the Board. Although the judge's muted, if justified, criticism of the Board's planner was dicta, RIYA now presents an extended argument that the Board's proceedings were tainted by an appearance of impropriety, bias, prejudice, and prejudgment. We decline to consider this argument because it was not presented by RIYA in its pleadings (including the amended complaint, second amended complaint, and pretrial memorandum); was not made part of RIYA's 103-page Law Division brief; and was accordingly not countered by AVN Holding's Law Division reply brief. See Gabriele v. Lyndhurst Residential Cmty., L.L.C., 426 N.J. Super. 96, 105 (App. Div.), certif. denied, 212 N.J. 430 (2012); see also Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) (stating that "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available").
"Appellate review is not limitless." State v. Robinson, 200 N.J. 1, 19 (2009). Because of this, "the points of divergence developed in proceedings before a trial court define the metes and bounds of appellate review." Ibid. Unless the question so raised on appeal concerns a matter of "great public interest," we routinely will not entertain the issue. Nieder, supra, 62 N.J. at 234. Nothing here suggests that what occurred at the Board rose to the requisite level of "great public interest." See US Bank Nat'l. Ass'n v. Guillaume, 209 N.J. 449, 483 (2012).
While the extensive participation of the Board's planner arguably went beyond the ordinary scope expected of Board advisors, it was open, obvious, and capable of being curbed had a timely objection been made. In fact, RIYA's counsel specifically commented upon one instance of the planner's conduct at the June 10, 2010 hearing, but failed to express a grievance or mention any concern until the Law Division suggested that something was amiss. Under these circumstances, we view RIYA as having abandoned its challenge to the Board's process, waived the putative defect in the proceedings, and perhaps even invited the error. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (explicating the principle of invited error).
During the cross-examination of AVN Holding's planning expert, the following exchange took place:
[RIYA's attorney]: Does Cranbury Inn have a liquor store, sell packaged goods?
[AVN Holding's planning expert]: I'm not sure.
[RIYA's attorney]: Well, if I told you Cranbury Inn sold packaged goods for the last 75 years, would that change [the Board's planner] spoon-feeding you the testimony?
C.
We turn to RIYA's challenge to the Law Division's endorsement of the Board's approval of the banquet facility. Although the trial court engaged in a lengthy analysis of whether the banquet facility was an accessory use, the Board had found that "the banquet facility is a use permitted in the HC zone." We agree that the issue is as simple as that.
Under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, the Board is the principal arbiter of Cranbury's zoning ordinance. N.J.S.A. 40:55D-70(b). Nevertheless, "[a]lthough courts defer to the expertise of municipal agencies in reviewing discretionary exercises of an agency's statutory powers, the interpretation of an ordinance is primarily a question of law." Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993).
Section 150-21(A)(1) of Cranbury's zoning ordinance provides that "[r]estaurants, excluding drive-through or fast-food establishments," are permitted uses in the HC zone. A "restaurant" in Cranbury is defined by § 150-7 as "[a]n eating establishment where food and drink are prepared, served and consumed primarily within the principal building." Since "eating establishment" is not further defined, we have no difficulty agreeing with the Board that the banquet facility described in the record falls squarely within Cranbury's definition of a restaurant, which is a permitted use in the HC zone.
Although § 150-10 states, "all uses not expressly permitted in this article are prohibited," and a banquet facility is not specifically enumerated as a separate use in the zoning ordinance, we have little doubt that Cranbury's governing body intended an expansive view of what falls under the rubric of restaurant. By specifically excluding "drive-through or fast-food establishments" in the HC zone, the zone plan contemplated the very type of banquet facility proposed by AVN Holdings for its appropriately-zoned property. We observe nothing arbitrary, capricious, or unreasonable about the Board's parsing of its ordinance.
D.
A closer question is presented by RIYA's attack on the Board's conclusion that the blade is not a sign, but merely functions as "an architectural element of the proposed building." If deemed a sign, the blade would require several variances from § 150-37, which variances were not sought by AVN Holdings.
During the Board's hearings, AVN Holdings's architect testified about the blade. He indicated that the aluminum-and-glass geometric feature would be installed along the roofline of the bone-white hotel building, and would appear to be a "slope roof structure that slopes upright at the entry of the hotel." Another witness testified that the blade would be "lit from within at night so it has a soft glow, a little bit of a tint." The purpose of the blade ranged from housing mechanical and electrical equipment to serving as the hotel's "brand hallmark," but not its logo. No letters or words would be affixed to the blade, and its purpose was described as, "something that provides interest to the building at night." No evidence was presented to suggest that the blade enjoyed trademark status or that it was uniformly applied to all structures occupied by a Hyatt-brand hotel. Nor was there evidence to suggest that the blade would be required to be removed if the structure came under the control of a different hotel chain.
Cranbury's definition of a "sign" is quite broad. Section 150-7 provides as follows:
SIGN: Any object, device, display or structure or part thereof, situated outdoors or indoors, which is used to advertise, identify, display, direct or attract attention to an object, person, institution, organization, business, product, service, event or location by any means, including words, letters, figures, design, symbols, fixtures, colors, illumination or projected images.This far-reaching definition characterizes almost anything that draws attention to a structure as a sign. RIYA argues that because the blade is classified by AVN Holdings as a "hallmark," it serves to function as a sign. RIYA also contends that the plain meaning of § 150-7, coupled with AVN Holdings's purported inability to explain the functional nature of the blade, makes the feature a sign, and requires variance relief.
In drawing the contours of local legislation such as Cranbury's zoning ordinance, we apply the same principles of construction that are applied to statutes. See Paff v. Byrnes, 385 N.J. Super. 574, 579 (App. Div. 2006).
"Although our starting point is to 'ascribe to the statutory words their ordinary meaning and significance,' we recognize that sometimes a plain reading will lead to an absurd result that could not have been intended by the Legislature." M.S. v. Millburn Police Dep't, 197 N.J. 236, 250 (2008) (quoting DiProspero v. Penn, 183 N.J. 477, 492-93 (2005)). Our function is not "to 'rewrite a plainly-written enactment ofAdditionally, "[z]oning ordinances generally are liberally construed in favor of the municipality." Twp. of Pennsauken v. Schad, 160 N.J. 156, 171 (1999).
the Legislature.'" DiProspero, supra, 183 N.J. at 492 (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)). Nevertheless, we recognize that "common sense should not be abandoned when interpreting a statute." A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 341 (App. Div.), certif. denied, 200 N.J. 210 (2009).
[In re Casaleggio, 420 N.J. Super. 121, 125-26 (App. Div. 2011).]
In light of the nature of the blade's design as an aesthetically pleasing architectural feature, we decline to interfere in the Board's eminently reasonable interpretation of its ordinance. Because the blade is harmoniously blended into the framework of the hotel's superstructure, it was not arbitrary, capricious, or unreasonable to treat it as something other than a sign.
"A statute is not to be given an arbitrary construction, according to the strict letter, but rather one that will advance the sense and meaning fairly deducible from the context. The reason of the statute prevails over the literal sense of its terms." Lesniak v. Budzash, 133 N.J. 1, 14 (1993) (citation omitted). This appears to be the approach followed by the Law Division, after giving due regard to the local expertise of the Board, and it is the approach that we discern most closely hews to our restrained scope of review.
E.
AVN Holding challenges the Law Division's ruling that the Board's grant of a use variance for the wine shop was arbitrary, capricious, and unreasonable. AVN Holdings's application proposed removing an existing package liquor store and replacing it with a new, upscale wine shop. Even though the package liquor store secured its presence through a variance granted in 1980, that status was as "an accessory use" to a restaurant and tavern. Apparently, the restaurant use had been suspended many years prior to the present application, but the package liquor store continued to operate "without appropriate approvals."
The Law Division recognized that AVN Holdings's principal proof was bottomed upon the prior use of the property. It commented that "[t]he mere existence of a nonconforming use does not of itself give rise to special reasons entitling the owner to a variance." The court found, contrary to the finding of the Board, that AVN Holding had failed to meet its statutory burden entitling it to a use variance. We agree with this assessment.
It is well-settled that use variances should be granted sparingly and with great caution. Kinderkamack Rd. Assocs., L.L.C. v. Mayor & Council of Oradell, 421 N.J. Super. 8, 21 (App. Div. 2011) (citing N.Y. SMSA, L.P. v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004)). "Because of the legislative preference for municipal land use planning by ordinance rather than variance, use variances may be granted only in exceptional circumstances." Id. at 12. Accordingly, it is for this reason that courts give less deference to the grant of use variances than to denials. Nextel of N.Y. v. Englewood Cliffs Bd. of Adj., 361 N.J. Super. 22, 38 (App. Div. 2003). Moreover, given the enormous hurdles that stand in the way of use variances, courts have been admonished for almost twenty-five years to be particularly vigilant in their review of use variance approvals for commercial non-inherently beneficial uses. See generally Medici, supra, 107 N.J. at 25; see also Nuckel v. Little Ferry Planning Bd., 208 N.J. 95, 102 (2011) (noting that the burden on a use variance applicant is "not insignificant").
In order to obtain such a variance, an applicant must satisfy both the so-called positive and negative criteria of the MLUL. See, e.g.. New Brunswick Cell. Tel. Co. v. S. Plainfield Bd. of Adj., 160 N.J. 1, 6 (1999). Under the positive criteria, an applicant must show special reasons to justify the proposed use variance. N.J.S.A. 40:55D-70(d)(1). As the Court has stated, "'special reasons' takes its definition and meaning from the general purposes of the zoning laws" enumerated at N.J.S.A. 40:55D-2. Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 386 (1990).
In contrast, the negative criteria require an applicant to prove "that [the] variance . . . can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70(d).
Further, a proponent of a noninherently-beneficial commercial use, as here, must surmount an additional threshold. Since 1987, such an applicant is obliged to satisfy "an enhanced quality of proof" by securing "clear and specific findings by the board of adjustment that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici, supra, 107 N.J. at 21. This enhanced quality of proof must "reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Ibid. It is a formidable obstacle for any developer.
While formidable, satisfaction of Medici is not impossible. These proofs may be satisfied, for example, by evidence that "the character of a community has changed substantially since the adoption of the master plan" or that "a variance for a use omitted from the ordinance is not incompatible with the intent and purpose of the governing body when the ordinance was passed." Medici, supra, 107 N.J. at 21. The Court warned that "[r]econciliation on this basis becomes increasingly difficult when the governing body has been made aware of prior applications for the same use variance but has declined to revise the zoning ordinance." Id. at 21-22.
It is not enough to merely demonstrate that a particular use aligns with a current recommendation contained within an up-to-date municipal master plan. Instead, a use variance applicant has the challenging task of reconciling the proposed use variance with the fact that the zoning ordinance omitted the use from those permitted in the district. Id. at 21-23. If these proofs are neglected, or if a board of adjustment fails to explicitly find and explain them, the public interest suffers a substantial risk that a board of adjustment will arrogate the zoning authority of the municipality to itself, rather than allowing it to reside where it belongs: in the hands of the elected governing body. Id. at 22 (noting that the enhanced standard guards against "'arbitrary action and untrammeled administrative discretion'" (quoting Ward v. Scott, 11 N.J. 117, 126 (1952)); see also Feiler v. Fort Lee Bd. of Adj., 240 N.J. Super. 250, 255 (App. Div. 1990), certif. denied, 127 N.J. 325 (1991).
Here, the Board did not specifically address the history of the zoning ordinance or master plan, discuss changes in the character of the area that would justify departure from the local legislation, or present a cogent rationale to serve as a foundation for an enhanced quality of proofs. Its reasoning is unsupportable because AVN Holdings's proofs, as recognized by the Law Division, failed to meet the obligatory enhanced quality needed to sustain a use variance under N.J.S.A. 40:55D-70(d)(1).
In light of the rigorous Medici standards repeated and reinforced in Kinderkamack Road Associates; Saddle Brook Realty, LLC v. Saddle Brook Board of Adjustment, 388 N.J. Super. 67, 76 (App. Div. 2006); and Funeral Home Management, Inc. v. Basralian, 319 N.J. Super. 200, 210 (App. Div. 1999), the use variance was properly overturned.
Because the Board-approved wine shop is no longer part of the development plan, we anticipate that AVN Holdings will return to the Board for, at least, approval of a modified site plan if it seeks to develop the property with the restaurant/banquet facility and hotel.
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I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION