Opinion
DOCKET NO. A-4171-14T2
07-13-2016
LAVELLE INVESTMENTS, INC., Plaintiff-Appellant, v. WILLIAM W. SHOFFLER, SR. and THE CITY OF WILDWOOD PLANNING AND ZONING BOARD, Defendants-Respondents.
Nicholas F. Talvacchia argued the cause for appellant (Cooper Levenson, P.A., attorneys; Gerard W. Quinn, on the briefs). Richard F. Klineburger, III, argued the cause for respondent William W. Shoffler, Sr. (Klineburger and Nussey, attorneys; Mr. Klineburger, on the brief). William J. Kaufmann argued the cause for respondent The City of Wildwood Planning and Zoning Board (Cafiero & Kaufmann, P.A., attorneys; Mr. Kaufmann, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-325-14. Nicholas F. Talvacchia argued the cause for appellant (Cooper Levenson, P.A., attorneys; Gerard W. Quinn, on the briefs). Richard F. Klineburger, III, argued the cause for respondent William W. Shoffler, Sr. (Klineburger and Nussey, attorneys; Mr. Klineburger, on the brief). William J. Kaufmann argued the cause for respondent The City of Wildwood Planning and Zoning Board (Cafiero & Kaufmann, P.A., attorneys; Mr. Kaufmann, on the brief). PER CURIAM
Plaintiff Lavelle Investments, Inc. (Lavelle) appeals an April 9, 2015 order of the trial court affirming the grant of a use variance. We affirm.
I.
Defendant William Shoffler owns property in the City of Wildwood, including a lot on Block 65 (Block 65 Property) and numerous lots on Block 66 (Block 66 Property). The Block 65 Property is waterfront property that abuts a "back bay" of tidal water. This property also includes portions of Andrews Avenue and Niagara Avenue, which were vacated pursuant to an ordinance adopted in September 2013. The Block 66 Property is located immediately to the east of the Block 65 property, and also includes portions of Andrews Avenue. The waterfront Block 65 Property is located in the Marine Commercial (MC-R) zoning district. The adjacent, inland, Block 66 Property is located in the Moderate Density Residential (R-2) zoning district. Lavelle is an adjacent property owner.
On April 18, 2013, Shoffler submitted an application for development of the property. The proposed development included a thirty-eight-slip marina, a ship's store, a four-space parking area on the Block 65 portion of his property, and a forty-four-space parking area on the inland Block 66 portion of the property. The marina, store, and four-space parking area would be located in the MC-R zone, while the forty-four-space parking area would be in the R-2 zone. While Shoffler's application was pending, prior to the hearing, the City adopted an ordinance vacating the portion of Niagara Avenue that had separated the Block 65 and 66 properties, making them contiguous properties without an intervening public right-of-way.
Under the Wildwood Land Development Ordinance, "recreation marinas and related boat/marine repair-oriented facilities" are an allowed conditional use in the MC-R zoning district. The proposed marina and ship's store with four parking spaces would comply with the relevant building requirements and are permitted in the MC-R zone. In the R-2 zone, off-street parking lots are allowable as accessories to permitted uses. However, because marinas and boat/marine repair-oriented facilities are not permitted uses in the R-2 zone, the proposed forty-four-space parking lot on Block 66 would not be an accessory to a permitted principal use; accordingly, Shoffler sought a use variance pursuant to N.J.S.A. 40:55D-70d(1). Lavelle opposed the variance.
At the Wildwood Planning Board (Board) hearing, the Board heard testimony from Joseph Maffei, Shoffler's zoning and planning expert. Maffei described the proposed development, and testified that over the last ten years, there had been a general decline throughout New Jersey in the development of water-dependent uses. He testified that, as a result, the State had developed policies to encourage the development of water-dependent uses; he believed that a marina would be consistent with these policies, and that without developing the R-2 portion of the property for parking purposes, it would not be possible to develop the marina. He testified that development of the parking area would not be a detriment to the zone plan or zoning ordinance.
The Board also heard from Lavelle's zoning and planning expert, William Crane. Having reviewed the application and the Wildwood Land Development Ordinance, Crane testified that parking is permitted in the R-2 zone as an accessory permitted use, but not as a principal use. Crane stated that the governing body had expanded the R-2 zone to the property in question, which had previously been zoned MC-R and asserted that Shoffler had not satisfied the negative criteria for the grant of the variance on the parcel in question.
After considering the testimony, the Board determined that a special reason existed to grant the variance: the portion of the R-2 zone at issue is bordered on three sides by the Marine Commercial-Tourist (MC-T) district and by the MC-R district; in those zones, the proposed parking lot would be a permitted accessory use to the marina, which is a permitted conditional use. The Board found that the property was uniquely situated to provide sufficient space in an appropriate location for commercial use to help the general welfare of the public and help meet the needs of the citizens of New Jersey, as expressed by the policies of the State in encouraging the development of water-dependent uses, all of which, in turn, advance at least two of the purposes of New Jersey's Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-3a and -3g. Given the immediate proximity of tidal water to the property, development as a parking lot would not result in the same exposure to flood damage as if the property were developed with residential units which, in turn, advances N.J.S.A. 40:55D-2b. The Board concluded that allowing the parking lot to be developed would result in preservation of the existing views that neighboring condominium owners have, providing adequate light, air, and open space, thus advancing public policy pursuant to N.J.S.A. 40:55D-2c. The Board found that Shoffler had presented sufficient evidence to satisfy the positive criteria for the use variance.
As to the negative criteria, the Board concluded that the proposed parking lot could be developed as an accessory use to a permitted R-2 use and allowing the property to be developed as a parking lot as an accessory to a permitted conditional use, a marina, could not result in substantial detriment to the public good or substantially impair the purpose and intent of the zone plan and zoning ordinance. The Board accepted that Shoffler had presented evidence sufficient to satisfy the criteria for the grant of the requested use variance. This appeal followed.
II.
On appeal, Lavelle argues: (1) that the transcript of the record made before the Board demonstrates arbitrary and capricious decision-making; and (2) that Shoffler did not provide the proofs required for the grant of a d(1) variance. We disagree.
The MLUL affords local zoning boards of adjustment the discretionary authority to grant use variances in limited circumstances. See N.J.S.A. 40:55D-70d. We recognize that zoning boards, "because of their peculiar knowledge of local conditions[,] must be allowed wide latitude in the exercise of delegated discretion." Kramer v. Bd of Adj., Sea Girt, 45 N.J. 268, 296 (1996). When a decision of a board of adjustment is reviewed in the Law Division, due deference must be given to the board's broad discretion in such matters; we will not disturb a board's decision unless it was arbitrary, capricious, or unreasonable. Id. Upon review in the Law Division, a board's decision enjoys a presumption of validity and a court may not substitute its judgment for that of the board. Cell S. of N.J., Inc. v. Zoning Bd. of Adj., 172 N.J. 75, 81 (2002) (citations omitted). "In evaluating a challenge to the grant or denial to a variance, the burden is on the challenging party to show that the zoning board's decision 'was arbitrary, capricious, or unreasonable.'" Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (quoting Kramer, supra, 45 N.J. at 296). Our review of the Law Division's decision on an action by a municipal land use board, is bound by the same standard. CBS Outdoor v. Lebanon Plan. Bd., 414 N.J. Super. 563, 577 (App.Div. 2010).
"A use variance . . . permits a use of land that is otherwise prohibited by the zoning ordinance." Nuckel v. Little Ferry Planning Bd., 208 N.J. 95, 101 (2011) (citations omitted). N.J.S.A. 40:55D-70d provides:
The board of adjustment shall have the power to . . . [i]n particular cases for special reasons, grant a variance to allow a departure from regulations pursuant to article 8 of this act to permit: (1) a use or principle structure in a district restricted against such use or principle structure . . . .This "special reasons" requirement of the statute is the "positive criteria" for a use variance. Sica v. Bd. of Adj. of Wall, 127 N.J. 152, 156 (1992).
[N. J.S.A. 40:55D-70d.]
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief 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.This portion of the statute is the "negative criteria" for a variance. Sica, supra, 127 N.J. at 156. An applicant must prove both positive and negative criteria to obtain a use variance. Smart SMR of N.Y., Inc. v. Fairlawn Bd. of Adj., 152 N.J. 309, 323 (1998); accord Sica, supra, 127 N.J. at 156.
[N.J.S.A. 40:55D-70d.]
Although the MLUL does not define "special reasons" with regard to the positive criteria, "[s]pecial reasons" exist "whenever a variance proposes to secure any of the statutory zoning goals." Burbridge v. Mine Hill Twp., 117 N.J. 376, 386 (1990) (citing Yahnel v. Bd. of Adj. of Jamesburg, 79 N.J. Super. 509, 517 (App. Div.), certif. denied, 41 N.J. 116 (1963)).
There are three categories of circumstances in which special reasons to grant a variance exist. They are: (1) when the proposed use inherently serves the public good, Sica, supra, 127 N.J. at 159-60; (2) where refusal to grant a use variance will result in undue hardship upon the applicant, Medici v. BPR Co., 107 N.J. 1, 23 (1987); and (3) where the proposed use would serve the general welfare because the site is "particularly suitable for the proposed use." Smart SMR, supra, 152 N.J. at 323 (citing Medici, supra, 107 N.J. at 4).
Whether a location is particularly suitable requires a determination that "the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought." Kohl v. Mayor & Council of Fair Lawn, 50 N.J. 268, 279 (1967) (citations omitted). Demonstrating particular suitability 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. Price, supra, 214 N.J. at 293. Instead, the question is "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." Ibid.
Here, the Board found that the use of the properties on Block 66 as a parking lot served the general welfare and is particularly suitable for the site. A marina could not be developed without the parking lot. The Board also found that the property was particularly suitable for the proposed site and that it would serve the general welfare. It supported this finding by noting that because the property was close to a property that could be used as a marina and the State of New Jersey had expressed a desire to encourage such use of shoreline property, the variance advanced the statutory goals of the zoning laws.
Anfuso v. Seeley, 243 N.J. Super. 349 (App. Div. 1990), is instructive here. There, the defendants acquired a marina occupying two lots, located in a residential zoning district where it was not a permitted use. Id. at 351-52. The owner believed that the marina was "grandfathered" and attempted to expand it; a neighboring property owner challenged the development. Id. at 352-53. As a result, the marina owner sought a "use variance and several ancillary bulk variances in order to operate the marina . . . ." Id. at 353. In its resolution, the Board found that "State policy mandates that existing marinas should be 'maintained [or] expanded in order to serve the general welfare while providing for the recreational use of the waterways of the State of New Jersey.'" Id. The Board also found that the marina owner had satisfied the negative criteria for a use variance. Id. The trial court affirmed the Board's decision. Id. at 357-59.
Lavelle asserts that Anfuso is distinguishable from the instant case on numerous grounds. Among them, Lavelle argues that, although the case before us involves a d(1) variance, Anfuso involved a d(2) variance for the expansion of a nonconforming use. Although the zoning board in Anfuso could have appropriately analyzed the variance as a d(2) variance, the record is clear that the applicant applied for a d(1) variance, and the local Board applied the d(1) standards in its analysis; we did the same. Id. at 370-74. Lavelle's other attempts to distinguish the instant case from Anfuso are without merit and we decline to discuss them further in a written opinion. R. 2:11-3(e)(1)(E). --------
We affirmed, observing that "[s]tatewide policies are relevant to zoning decisions because municipalities exercise zoning power only through delegation of the State's authority and they must consider the welfare of all the State's citizens, not just the interest of the inhabitants in the particular locality." Id. at 364 (quoting Lusardi v. Curtis Point Prop. Owners Ass'n, 86 N.J. 217, 227 (1981)). We "agree[d] with the Board's finding that State policy encourages water-dependent uses of property adjacent to the State's waterways . . . and, because of that articulated State policy, we held that the positive statutory component of N.J.S.A. 40:55D-70 was satisfied." Id. at 369. The positive statutory component is demonstrated in the same manner here.
With regard to the negative criteria, the applicant must prove that the requested variance can be granted "without substantial detriment to the public good," and that granting the variance will not "substantially impair the purpose and intent of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70d; see also Medici, supra, 107 N.J. at 21; Sica, supra, 127 N.J. at 156. "The applicant's proofs and the board's findings that the variance will not 'substantially impair the intent and purpose of the zone plan and zoning ordinance,' N.J.S.A. 40:55D-70(d), must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Medici, supra, 107 N.J. at 21.
Here, the parking lot could be developed as an accessory to a permitted use in the R-2 zone, and that development of the parking lot in conjunction with an adjacent marina does not result in substantial detriment to the public good and does not substantially impair the purpose and intent of the zone plan. Lavelle argues that although parking is an allowed "accessory use" in residentially zoned areas in Wildwood, a commercial parking lot in such a zone is still inconsistent with the Master Plan. The accessory parking allowed in an R-2 zone in Wildwood is "off-street parking and private garages attendant to permitted uses." Lavelle argues Shoffler's proposed forty-four-space parking lot is substantially different. We disagree.
In Beckmann v. Teaneck Township, 6 N.J. 530, 536 (1951), our Supreme Court rejected the argument that maintaining a driveway for business purposes in a residential zone constituted a zoning violation. "A driveway in itself is neutral. It is neither business nor otherwise." Id. The same analysis applies here.
Lavelle finally argues that the Board failed to "reconcile" the grant of the variance "with the ordinance's continued omission of the proposed use from those permitted in the zone" as required by Medici, supra, 107 N.J. at 4.
The nature of the proofs offered to achieve reconciliation of the proposed variance with the zoning ordinance will depend on the circumstances of each case. It may be that the proposed use was one, like a health club, that was uncommon when the ordinance was last revised, but has since gained currency. Competent proofs to this effect could dispel the concern that exclusion of the use was deliberate rather than inadvertent.The fact that a parking lot is an approved accessory use for residences is sufficient to dispel our concern in this instance.
[Id. at 21 n.11.]
The Board's findings and conclusions are supported by the record, and we conclude that Lavelle failed to demonstrate that the Board acted in an arbitrary and capricious manner.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION