Opinion
DOCKET NO. A-2156-14T4
06-17-2016
STEVEN HERNANDEZ, Plaintiff-Appellant, v. SAS PROPERTIES OF OLD BRIDGE, LLC and TOWNSHIP OF OLD BRIDGE PLANNING BOARD, Defendants-Respondents.
Gasiorowski & Holobinko, attorneys for appellant (Christie A. Gasiorowski and R.S. Gasiorowski, on the briefs). Heilbrunn Pape, L.L.C., attorneys for respondent SAS Properties of Old Bridge, LLC (Jonathan M. Heilbrunn, of counsel; Peter H. Klouser, on the brief). DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, P.C., attorneys for respondent Township of Old Bridge Planning Board (Kelly M. Carey, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2647-14. Gasiorowski & Holobinko, attorneys for appellant (Christie A. Gasiorowski and R.S. Gasiorowski, on the briefs). Heilbrunn Pape, L.L.C., attorneys for respondent SAS Properties of Old Bridge, LLC (Jonathan M. Heilbrunn, of counsel; Peter H. Klouser, on the brief). DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, P.C., attorneys for respondent Township of Old Bridge Planning Board (Kelly M. Carey, on the brief). PER CURIAM
Plaintiff Steven Hernandez filed an action in lieu of prerogative writs, challenging the decision of the Township of Old Bridge Planning Board (the Board) to grant amended site plan and minor subdivision approval with a "C-variance" to defendant SAS Properties of Old Bridge, LLC (SAS). We affirm, substantially for the reasons set forth in the oral decision of Judge Douglas K. Wolfson.
I.
In 1999, the Board adopted a resolution that approved a final site plan for a portion of the property in question, Lot 3, Block 16001 on Spring Valley Road. The final site plan permitted Oasis Car Dealership, the user of the property at the time, to develop a long-term auto storage lot on the property as a permitted use under the Old Bridge Municipal Township Land Development Ordinance, Schedule of Permitted Uses, Section 250 - Attachment 3, Appendix C (the Ordinance).
There was no challenge to this resolution at the time.
Approximately fourteen years later, SAS, the contract-owners of a portion of Lot 3 and the entirety of Block 16001, Lot 2, the contiguous lot, sought an amended preliminary/final site plan, a minor subdivision and a variance pursuant to N.J.S.A. 40:55D-70(c) (a "C-variance") to annex that portion of Lot 3 to Lot 2.
SAS published notice of the time of the hearing, the location of the property, the proposed amendments and the location where the plans could be viewed. The notice detailed the current and proposed sizes of the lots as well as the previously granted and currently sought variances. The notice provided, in pertinent part:
Applicant proposes an amended Preliminary and Final Site Plan and a Minor Subdivision of existing Lot 3 in Block 16001. The lot contains 9.91 acres and is located in an OG1 Zone.
By this application leave is sought to subdivide a portion of Block 16001, Lot 3 containing 42,720.98 sq. ft. and to merge that land with existing Block 16001, Lot 2. Lot 3 as reconfigured will contain 8.93 acres where 1 acre is required. Lot 2 will be increased in size to 4.51 acres. Each lot will meet or exceed all zoning requirements for the OG1 Zone.
Lot 3 in its reconfigured form will continue to serve as an automotive storage lot which is a permitted use in the OG1 Zone.
. . . .
As a result of the proposed subdivision, the number of proposed parking spaces for vehicle storage on premises designated as Block 16001, Lot 3 will be reduced from seven hundred sixty four (764) to six hundred seventy three (673) spaces.
Office-General - 1 acre zone. --------
Sam Rizzo, the Township Planner, submitted a memorandum stating the Township had no objection to the Board taking action on the application. Rizzo opined that Lot 3 was "not actually adjacent to the car dealership as asserted by the objector's attorney, but rather diagonally across the street." He explained Lot 3 was considered a separate lot for purposes of the 1998 application, and that if the conditions prescribed in 1998 were to continue, "it would remain as such." Rizzo also opined that other automobile storage lots in the municipality utilized in the same manner by auto dealerships were not "considered accessory uses to the automobile dealerships . . . who utilize them."
SAS submitted a traffic assessment report authored by Frank A. Miskovich, P.E., C.M.E., who opined there would be "no change in the operation of the auto storage lot" and that the conclusions reached in the 1998 circulation report were "still valid."
At the February 4, 2014 hearing, SAS provided testimony of three experts: Robert Yuro, P.E., Elizabeth Dolan, P.E., and James Higgins, P.P. During the course of her testimony, Dolan opined the lot "will continue to be used for a storage facility with no public access, limited trip generation, and really no changes in operation, just a reduction of a portion of the parking supply." Higgins, a professional planner, testified that of all the variances granted in the 1998 application, the only one that would change was the buffer variance because an error was noticed when the instant application was filed. He opined that granting that variance would have "no negative impact."
The only testimony presented by Hernandez was that of Gordon Gemma, P.P., a professional planner. In contrast to the other witnesses, Gemma testified that Lot 3's car storage was an accessory use to Oasis Ford and as such "increased . . . intensity of the use . . . requires a use variance." Gemma opined that the use of the lot for inventory made it an "accessory use" that was "not a permitted use" and that required action by the Zoning Board.
At the close of testimony, the Board's counsel recommended the Board exercise jurisdiction because despite long-term storage "not [being] defined in the ordinance, . . . the Board had made that determination as to what it considered long-term storage in that original application, and nothing that came before any of the professionals in the town caused them to think that there [was] anything different when this application came in." The Board approved the application by unanimous vote.
On April 1, 2014, the Board adopted a resolution memorializing its approval of SAS's application. The Board held:
[A]fter considering the testimony of all of the witnesses including the testimony of the two planners, Mr. Higgins and Mr. Gemma, it was not persuaded that the application requires a use or "d" variance. The Board finds that storage of automobiles is permitted
in the OG-1 zone and that the definition of "accessory use" provided in the [Ordinance] is clear and does not apply to this matter under the Township Ordinance[,] as accessory use must be on the same lot and the car dealership is clearly across the street on a separate lot. The Board further finds that the terms "long-term storage auto, boats, trailers, etc." as provided in the schedule of uses for the OG-1 zone is appropriately applied in this matter. Further, that the use of the lot has not changed since 1999 when that use was first determined to apply to this Property.
The Board further stated that its application of the meaning of "accessory uses" and "long term storage" in this matter was consistent with its application of those terms "over the years, and that there [was] substantial value in maintaining consistency, uniformity and predictability in the application of the Ordinance in the approval process."
Hernandez filed an action in lieu of prerogative writs, challenging the decision of the Planning Board. During oral argument before Judge Wolfson, Hernandez conceded that the dealership lot and Lot 3 were not contiguous lots and acquiesced to the court's statement that "[t]he property could have been sold to any number of people and used for any number of things without that car dealership."
Judge Wolfson affirmed the Board's resolution granting the application because the Board's decision was "adequately supported by the record, and the resolution [was] sufficiently detailed to demonstrate that . . . it [was] not arbitrary, capricious or unreasonable." He rejected Hernandez's argument that the use of Lot 3 was a nonconforming use, holding "it is a permitted use as far back as 1998 or nine when the Board approved this application." Judge Wolfson also rejected Hernandez's jurisdiction argument, finding SAS properly sought a C-variance and provided sufficient public notice.
In his appeal, plaintiff raises the following arguments:
POINT I
THE USE PROPOSED BY THE APPLICANT IS NOT PERMITTED IN THE OG-1 ZONE AND THE PLANNING BOARD HAD NO AUTHORITY TO HEAR THE APPLICATION.
1. THE BOARD'S DETERMINATION OF USE IS ERRONEOUS, ESPECIALLY SINCE IT CONTRADICTS THE EVIDENCE.
2. THE BOARD'S DECISION MUST BE REVERSED BECAUSE IT FAILED TO REQUIRE THE APPLICANT TO APPLY FOR A USE VARIANCE FOR THE MINOR SUBDIVISION OF LOT TWO WHERE APPLICANT'S DEVELOPMENT PLANS WOULD RESULT IN AN INTENSIFICATION OF THE NONCONFORMING USE AND CONSEQUENTLY A USE VARIANCE WAS REQUIRED.
POINT II
THE APPLICANT'S NOTICE WAS DEFICIENT SO THE BOARD HAD NO AUTHORITY TO ACT.
These arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following comments.
In reviewing an appeal from an action taken by a planning board, we are cognizant that such boards enjoy "peculiar knowledge of local conditions," and "must be allowed wide latitude in the exercise of the delegated discretion." Burbridge v. Mine Hill, 117 N.J. 376, 385 (1990) (citation omitted). The standard we apply is "whether the grant or denial was arbitrary, capricious or unreasonable." Klug v. Bridgewater Twp. Planning Bd., 407 N.J. Super. 1, 12 (App. Div. 2009) (citation omitted). We do not invalidate the planning board's action "in the absence of clear abuse of discretion by the public agencies involved," and apply the same standard to our review of a trial court's decision in an appeal from a decision of a board of adjustment. CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd./ Bd. of Adjustment, 414 N.J. Super. 563, 577-78 (App. Div. 2010) (quoting Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296-97 (1965)).
In Point I, Hernandez argues: (1) the 1999 Board erroneously found Oasis' use of Lot 3 was a permitted use; (2) the current Board erred in approving the application absent testimony as to the current use of Lot 3; and (3) the Board lacked jurisdiction, pursuant to the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163, to approve the application because SAS's subdivision would result in the intensification of a pre-existing nonconforming use, requiring a variance issued by the zoning board. These arguments rest upon the premise that the Board erred in adopting a resolution approximately fourteen years prior to the action challenged here. Plaintiff's reliance upon an untimely challenge to the earlier resolution cannot prevail. See R. 4:69-6. Moreover, we agree with Judge Wolfson that the Board's decision was not arbitrary, capricious or unreasonable and was supported by sufficient evidence in the record.
In Point II, plaintiff contends the Board lacked jurisdiction due to SAS's failure to provide sufficient public notice as to the nature of Lot 3 as required. Again, we disagree.
N.J.S.A. 40:55D-11 establishes the requirements applicable to SAS's public notice here:
Notices pursuant to [N. J.S.A. 40:55D-12 and - 13] shall state the date, time and place of the hearing, the nature of the matters to be considered and, in the case of notices pursuant to [N. J.S.A. 40:55D-12], an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor's office, and the location and times at which any maps and documents for which approval is sought are available pursuant to [N. J.S.A. 40:55D-10].
In practice, this requires the notice to provide a "common sense description of the nature of the application, such that the ordinary layperson could understand its potential impact upon him or her." Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 239 (App. Div. 1996). We agree with Judge Wolfson that the notice here was adequate to satisfy the statutory requirements.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION