Opinion
DOCKET NO. A-3167-12T3 DOCKET NO. A-3406-12T3
07-14-2014
HENRY MCNAMARA AND JOAN MCNAMARA, his wife, Plaintiffs-Appellants, v. TOWNSHIP OF WYCKOFF PLANNING BOARD and ALDO'S ITALIAN RESTAURANT, INC., Defendants-Respondents. WYCKOFF SHOPPING CENTER, INC. Plaintiff-Appellant, v. TOWNSHIP OF WYCKOFF PLANNING BOARD and ALDO's ITALIAN RESTAURANT, INC. Defendants-Respondents.
Thomas J. Germinario argued the cause for appellants in A-3167-12T3. John J. Segreto argued the cause for appellant Wyckoff Shopping Center, Inc. in A-3406-12 and respondent Wyckoff Shopping Center, Inc. in A-3167-12 (Segreto, Segreto & Segreto, attorneys; Mr. Segreto, on the brief). Joseph C. Perconti argued the cause for respondents Township of Wyckoff Planning Board in A-3167-12 and A-3406-12. Bruce E. Whitaker argued the cause for respondent Aldo's Italian Restaurant, Inc. (McDonnell & Whitaker, L.L.C., attorneys; Mr. Whitaker, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4856-12 and L-4933-12.
Thomas J. Germinario argued the cause for appellants in A-3167-12T3.
John J. Segreto argued the cause for appellant Wyckoff Shopping Center, Inc. in A-3406-12 and respondent Wyckoff Shopping Center, Inc. in A-3167-12 (Segreto, Segreto & Segreto, attorneys; Mr. Segreto, on the brief).
Joseph C. Perconti argued the cause for respondents Township of Wyckoff Planning Board in A-3167-12 and A-3406-12.
Bruce E. Whitaker argued the cause for respondent Aldo's Italian Restaurant, Inc. (McDonnell & Whitaker, L.L.C., attorneys; Mr. Whitaker, on the brief). PER CURIAM
Plaintiffs Henry and Joan McNamara (the "McNamaras"), and Wyckoff Shopping Center, Inc. ("Wyckoff Center"), appeal the Law Division's order upholding defendant Township of Wyckoff Planning Board's (the "Board") determination that granted defendant Aldo's Italian Restaurant, Inc. ("Aldo's"), certain variances pursuant to N.J.S.A. 40:55D-70(c)(2) ("(c) variances").
The McNamaras and Wyckoff Center filed separate complaints in the Law Division that were consolidated for disposition. Plaintiffs filed separate appeals which we consolidated by order dated May 21, 2013.
Plaintiffs first assert a procedural argument. They contend that because Aldo's application anticipated two principal uses on the same lot, something that violated municipal zoning ordinances, the application required the grant of a variance pursuant to N.J.S.A. 40:55D-70(d) ("(d) variance"), and only the Zoning Board of Adjustment could consider the application. See, e.g., Najduch v. Twp. of Independence Planning Bd., 411 N.J. Super. 268, 276 (App. Div. 2009) (noting the power to grant a (d) variance is exclusive to the Board of Adjustment). Secondly, plaintiffs argue that the Board's decision to grant the (c) variances was arbitrary, capricious, and unreasonable. Wyckoff Center also contends that the Board's resolution was "devoid of proper findings of fact and conclusions of law."
We have considered these arguments in light of the record and applicable legal standards. We reverse and remand the matter to the Board for further proceedings consistent with this opinion.
I.
At the time of the hearing before the Board, Aldo Cascio was the principal and sole shareholder of Aldo's, which owned two separate businesses in the township's central business district (CBD). Aldo's Italian Restaurant (the "restaurant"), operated as a sit-down restaurant, while Pane E Vino (the "wine bar"), operated a wine bar and retail liquor store in a separate building near the restaurant. Both buildings were owned by the McNamaras.
The wine bar possessed a Plenary Retail Consumption License (a "Broad C License"), N.J.S.A. 33:1-12, that permitted both the consumption of liquor on site and the retail sale of liquor from the premises. The restaurant did not have a liquor license, but patrons were able to purchase wine at the wine bar and bring it into the restaurant. Similarly, people could purchase food and consume it at the wine bar by having it delivered from the restaurant; food was not prepared at the wine bar. Cascio estimated that sixty percent of the wine bar's business was from the retail sale of liquor.
Aldo's sought to consolidate these two existing businesses in a single, nearby, vacant, commercial building owned by 640 Wyckoff Avenue Associates, LLC, which had previously housed a bakery. Wyckoff Center's commercial property is located directly across the street, and John C. Ringer, whose family owned and managed the property, appeared at the hearings and objected to Aldo's application.
The site plan application Aldo's submitted also sought approval of two (c) variances, specifically to "permit[] [nineteen] parking spaces where [fifty-seven] may be required," and to "allow [for] a new free-standing sign." The site plan envisioned a first floor that included four dining areas, a kitchen, a vestibule, an outdoor patio, and a bar area, as well as a retail section, labeled on the plan as "Pane e Vino," with refrigeration units for patrons interested in buying liquor by the bottle and a smaller wine bar. There was a separate entrance for this portion of the establishment.
A third variance for the placement of a fence was not included in the application but was ultimately considered by, and granted by, the Board.
The basement would consist of another wine tasting bar, office, preparatory kitchen, and utility room. The site plan also proposed landscaping, installation of a fence along the property line, replacement of the façade and improvements in the parking lot. The proposed sign billed the establishment as "Aldo's Pane e Vino."
The Board held five hearings on intermittent days between November 2011 and March 2012, during which it heard the testimony of Cascio, and among other witnesses, Wayne Johnson, the applicant's architect, and Bridgette Bogart, its planner. The McNamaras were represented by counsel as objectors to the application, and they produced a planner, Charles McGroarty, as an expert witness.
Prior to the initial meeting, counsel for the McNamaras sent a letter to the Board Secretary, in which he argued that the application was "inappropriately . . . filed with the . . . Board." He noted that the CBD regulations permitted only one principal use in a building, and he contended that Aldo's application "clearly involves [two] district businesses[,] i.e.[,] the wine bar with retail sales and the restaurant." Counsel for the McNamaras reiterated this objection at the initial hearing before the Board on November 9, 2011.
In response, Aldo's first argued that the Board's consulting engineers, who conducted several reviews of the application, indicated the site plan proposed "a permitted use" within the zone, and that determination had not been challenged prior to the hearing. Aldo's also argued that the site plan proposed only one principal use, the restaurant, and the wine bar would operate as an accessory use.
Counsel for the Board suggested that Aldo's produce a witness on the "jurisdictional issue." Aldo's counsel agreed to call Cascio, but he also suggested that his representations be accepted as a "proffer" of what Cascio's testimony would be, subject to cross-examination by counsel for the McNamaras. After the Board's counsel found that to be acceptable, the Board took a formal vote to proceed, and the hearings proceeded with the testimony of Cascio and the other witnesses on succeeding nights.
At its March 14, 2012 meeting, the Board unanimously approved Aldo's application subject to various conditions. It approved a memorializing resolution on May 9, setting forth its specific findings and conclusions, which included the following:
The subject property will be an improvement to the existing condition. The subject property will also undoubtedly, if approved, need a variance. There is a benefit of having a restaurant in town to [serve] Wyckoff's residents.Notably, the resolution did not address the jurisdictional argument raise by the McNamaras. It never stated any specific findings of fact or conclusions of law as to whether the site plan involved one principal use, two principal uses, or one principal use and one accessory use.
The criteria set forth in [N.J.S.A. 40:55D-70(c)(2)] [are] satisfied. The benefits of an improved, currently vacant building with a permitted used to serve Wyckoff residents; there is sufficient on street parking to satisfy the parking deficiency; the applicant is providing nineteen (19) onsite [sic] parking spaces, where there is no parking available on the existing site.
. . . .
The Planning Board concurs with the testimony of the [a]pplicant's planner that this application, variances, and waivers can be granted without substantial detriment to the neighboring properties or the public welfare and granting same will not substantially impair the Master Zone Plan of the Township of Wyckoff.
Plaintiffs filed their complaints in lieu of prerogative writs in the Law Division. They alleged that the record failed to support the Board's conclusion that it had jurisdiction over the application. They also alleged that the Board's grant of the (c) variances was arbitrary, capricious, and unreasonable. In a written opinion that followed oral arguments, the judge rejected plaintiffs' claims. He entered an order dated February 14, 2013, that dismissed plaintiffs' complaints with prejudice and "upheld [the Board's decision] in its entirety." This appeal followed.
II.
We apply "[t]he same standard of review" to the Board's decision as does the trial court. N.Y. SMSA, L.P. v. Bd. of Adjustment of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004); see Fallone Props. L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). A reviewing court can "set aside" a municipal board's decision "when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J., Inc., v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). We may "not substitute [our] judgment for that of [the] [B]oard even when [we are] doubtful about the wisdom of the action." Ibid. (quotation omitted). "'[B]ecause of [its] peculiar knowledge of local conditions,'" the Board's factual findings are entitled to substantial deference and are presumed to be valid. Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990) (quoting Medici, supra, 107 N.J. at 23); see Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965). The Board's conclusions of law, however, are subject to de novo review. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993).
A.
We first consider plaintiffs' jurisdictional argument. The Law Division judge concluded that Aldo's intended to use the property as "one principal use," a restaurant. He noted Cascio's testimony that as existing businesses, the restaurant prepared food for on- and off-site consumption, and the wine bar provided both "food and beverages for on-premises consumption as well as retail sales of beverages or take out under the Broad C License it own[ed]." The judge also concluded that "[t]he sale of liquor is a customary accessory use to that of a restaurant."
Pursuant to Township of Wyckoff Ordinance §186-23(O), "there shall be permitted only one . . . principal use per lot" in the CBD. "Principal use" is defined as "the principal or most important use of the principal building on a lot." Township of Wyckoff Ordinance §186-6. An "accessory use," defined as "a use naturally and normally incidental to and subordinate to the primary function of the premises[,]" ibid., may exist on the same lot with a principal use. The ordinance defines "Restaurants and Taverns and Luncheonettes" as "[e]stablishments in which food or other products are prepared and served to patrons for on-premises consumption[,]" ibid., and they are permitted uses in the CBD. Township of Wyckoff Ordinance §186-10. The package and retail sale of alcohol beverages is likewise a permitted use in the CBD. Ibid. "Accessory uses clearly and customarily incidental to a permitted use being conducted on the same premises" are also permitted in the CBD. Ibid.
As the Court has explained,
Zoning ordinances frequently permit uses that are accessory or incidental to an expressly permitted use. However, they often do not define those permitted accessory uses, and courts must determine whether the proposed accessory use is "customarily incidental" to the main activity.A use is incidental if it "'bear[s] a close resemblance and obvious relation to the main use to which the premises are put[.]'" Tanis v. Twp. of Hampton, 306 N.J. Super. 588, 604 (App. Div. 1997) (quoting State v. P.T. & L. Constr. Co., Inc., 77 N.J. 20, 26-27 (1978)).
[Wyzykowski, supra, 132 N.J. at 518.]
"Two significant factors appear to influence the determination whether an incidental use should be classified as customary: commonality and impact." Tanis, supra, 306 N.J. Super. at 604. "With respect to the first factor, . . . the decision maker has a duty to 'determine whether it is usual to maintain the use in question in connection with the primary use.'" Id. at 604-605 (quoting Charlie Brown of Chatham, Inc. v. Bd. of Adjustment for the Twp. of Chatham, 202 N.J. Super. 312, 324 (App. Div. 1985)). "The second factor focuses on the impact of the use on the surrounding neighborhood and the zoning plan." Id. at 606.
Here, the ordinances permitted both "restaurants and taverns" and the "package and retail sale[]" of alcohol in the CBD. Township of Wyckoff Ordinance §186-10. Neither one would require that a site plan applicant seek a (d) variance. However, the ordinances also prohibited more than one principal use per lot in the CBD. Thus, as plaintiffs have argued, an applicant seeking to have more than one principal use on a lot needed to seek a use variance. Sun Co., Inc. v. Zoning Bd. of Adjustment of Borough of Avalon, 286 N.J. Super. 440, 446-47 (App. Div.), certif. denied, 144 N.J. 376 (1996).
Here, the testimony demonstrated and the Board's resolution implicitly concluded that the application intended the premises would be principally used as a restaurant. The wine bar would only be a small portion of the overall scheme of the proposed plan, and the retail sales coolers and equipment only a portion of the wine bar. Patrons would be able to freely flow between one area of the building and another without any demising walls in between. The sale of liquor was incidental to the operation of the restaurant. Moreover, it is assuredly intuitive that the sale of liquor is also "customary" to the operation of a restaurant. See e.g., DaPurificacao v. Zoning Bd. of Adjustment of Twp. of Union, 377 N.J. Super. 436, 443 (App. Div. 2005) (alteration in original) (quoting P.T. & L. Constr. Co., 77 N.J. at 27) ("[g]enerally, a use which is so necessary or commonly to be expected that it cannot be supposed that the ordinance was intended to prevent it will be found to be a customary use").
Plaintiffs argue, however, that the retail sale of alcohol is not customarily incidental to the operation of a restaurant. Because Aldo's intended to continue the retail sale of wine and liquor independent of the operation of the restaurant, the site plan proposed two principal uses, something forbidden by the zoning ordinances. The Board and the trial court never specifically addressed this contention.
The judge cited to an unpublished opinion by our colleagues, TR Liquor, LLC v. Township of Toms River Planning Board, No. A-2714-10T (App. Div. Aug. 3, 2012) (slip op. at 17), which accepted that two principal uses may exist on one lot. In that case, however, the panel specifically concluded that, unlike Wyckoff's ordinance, the municipal ordinance at issue did not prohibit two principal uses on one lot. Ibid.
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Additionally, our review is severely hampered because the Board decided to proceed without formal testimony on the jurisdictional question and never decided the issue. During colloquy, some board members likened the application's proposed use to existing businesses elsewhere in the municipality, but the record is surely ambiguous. Even if the retail sale of alcohol is considered "incidental" to the operation of a restaurant, we cannot assess whether it is "customary" in the township. In this regard, we have specifically adopted the language of the Court and said,
The fact that a use is not customarily indulged in, however, is not conclusive, and even if the use in question is found in a small percentage of similar main uses, the use may still be found to be "customary."
[Tanis, supra, 306 N.J. Super. at 604 (quoting P. T. & L. Constr. Co., supra, 77 N.J. at 27.]
We also note that the ordinances do not separately define "restaurant" or "tavern," and both are included in the schedule of permitted uses in the CBD. Although Aldo's referred to the principal use as that of a restaurant, the Board may wish to consider whether the use was more appropriately that of a "tavern," which, like a restaurant, is permitted to prepare and serve food for on-premises consumption. In this regard, the Broad C license, including the frequency of its occurrence in the township and whether it is used in conjunction with the service of food elsewhere, might be quite significant to the Board's consideration.
We are compelled, therefore, to reverse and remand the matter to the Board, which shall determine whether it has jurisdiction to consider Aldo's application. We leave the conduct of the remand hearing to the Board's discretion, and we do not retain jurisdiction. However, because we cannot predict the outcome of the remand hearing, we address the other issues raised by plaintiffs for the sake of completeness.
B.
Plaintiffs argue the Board's decision to grant a variance from the required number of off-street parking spaces was arbitrary, capricious and unreasonable. Wyckoff Center also asserts that the Board misconstrued its own ordinance because it failed to consider Aldo's employees and the retail aspect of the business in calculating the minimum requirements. We disagree with these contentions.
The zoning ordinance requires that in the CBD, "[r]estaurants or bars where table service is provided" must have "[one off-street parking] space per [three] seats, inclusive of tables, bar seats and parking needs generated by employees." Township of Wyckoff Ordinance §186-26(c). Cascio testified that the renovated restaurant would have 170 seats; therefore, Aldo's sought a variance from the required fifty-seven seats, i.e., 170/3, to nineteen, as provided by the site plan. Cascio further testified that neither the restaurant nor the wine bar currently had any off-street parking. Bogart, who testified as Aldo's planning expert, stated there were 109 shared parking spaces available to all businesses within a 300-foot radius of Aldo's proposed site.
McGroarty, the McNamaras' expert, cited the township police chief's letter regarding the parking problems in the CBD and opined that a variance was inconsistent with the township's master plan. Bogart, however, explained that McGroarty's analysis was methodologically flawed, as he did not explore the possibility of on-street parking on nearby streets. Moreover, she explained that the establishment of restaurants within the CBD was consistent with the historical intention of the master plan from at least as far back as 1977.
When a development application for site plan approval is filed, a planning board may consider requests for (c) variances. N.J.S.A. 40:55D-60(a). "N.J.S.A. 40:55D-70(c)(2) permits a variance for a specific property, if the deviation from . . . provisions of a zoning ordinance would advance the purposes of the zoning plan and if the benefit derived from the deviation would substantially outweigh any detriment. The applicant bears the burden of proving both the positive and negative criteria." Ten Stary Dom Partnership v. Mauro, 216 N.J. 16, 30 (2013) (citation omitted).
[N]o c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case, then, will be not on the characteristics of the land that, in light of current zoning requirements, create a "hardship" on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community.Establishment of the negative criteria for a (c) variance requires the applicant to prove that the variance can be granted without substantial detriment to the public good. Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 57-58 (1999).
[Kaufmann v. Planning Bd. for the Twp. of Warren, 110 N.J. 551, 563 (1988) (emphasis removed).]
In this case, the Board explicitly accepted the testimony of Aldo's experts. "A board is free to accept or to reject the opinions of a planner proffered by an applicant or objector[.]" Hawrylo v. Bd. of Adjustment, 249 N.J. Super. 568, 579 (App. Div. 1991). We defer, therefore, to the Board's factual determinations in this regard, which are based not only upon its assessment of witness credibility, but also upon its "peculiar knowledge of local conditions." Burbridge, supra, 117 N.J. at 385 (citation omitted). We see no basis to disturb the Board's conclusions regarding the parking variance.
We also reject Wyckoff Center's claim regarding the minimum number of off-street parking spaces required by the ordinance. "'[A]lthough we construe the governing ordinance de novo, we recognize the board's knowledge of local circumstances and accord deference to its interpretation.'" Grubbs v. Slothower, 389 N.J. Super. 377, 383 (App. Div. 2007) (quoting Fallone Props., supra, 369 N.J. Super. at 562). Here, the Board concluded that the principal use for the property was as a restaurant, and as such, the parking requirements for that use dictated the minimum number of necessary spaces and the formula for calculating same. As to restaurants, the ordinance included all "tables, bar seats and parking needs generated by employees" within the one parking space per three seats ratio. We reject these additional arguments made by Wyckoff Center concerning the meaning of the ordinance.
To the extent we have not specifically addressed any other claims made by plaintiffs, we find them to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded to the Board for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION