Opinion
DOCKET NO. A-2119-13T4
03-06-2015
OCEAN REEF CONDO, LLC; 200 OCEAN BLVD., LLC and LIGHTHOUSE PROPERTY, LLC, Plaintiffs-Appellants, v. HADDAD 22 8 LONG BRANCH, LLC; ZONING BOARD OF ADJUSTMENT OF THE CITY OF LONGBRANCH; and OCEAN FRONT LB, II, LLC, Defendants-Respondents.
R.S. Gasiorowski argued the cause for appellants (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the briefs). Martin A. McGann, Jr., argued the cause for respondents Haddad 228 Long Branch, LLC and Ocean Front LB, II, LLC. Martin J. Arbus argued the cause for respondent Zoning Board of Adjustment of the City of Long Branch (Arbus, Maybruch & Goode, LLC, attorneys; Mr. Arbus, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-886-13. R.S. Gasiorowski argued the cause for appellants (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the briefs). Martin A. McGann, Jr., argued the cause for respondents Haddad 228 Long Branch, LLC and Ocean Front LB, II, LLC. Martin J. Arbus argued the cause for respondent Zoning Board of Adjustment of the City of Long Branch (Arbus, Maybruch & Goode, LLC, attorneys; Mr. Arbus, on the brief). PER CURIAM
Plaintiffs have pursued this land use litigation in an effort to prevent defendants from constructing and opening a restaurant on nearby lots. They brought an action in lieu of prerogative writs in the Law Division, challenging the municipal zoning board's interpretation of the applicable local ordinance that declared a developer's restaurant project a permissible use. The trial court dismissed plaintiffs' lawsuit as moot, because of a lease transaction that plaintiffs entered into during the pendency of the litigation. For the reasons that follow, we affirm the trial court's finding of mootness and its corresponding dismissal of plaintiffs' lawsuit.
I.
The three plaintiffs are the owners of contiguous or nearby properties in Long Branch. The properties are all situated within Block 417 between two parallel streets, Ocean Boulevard and Ocean Avenue. Plaintiff Ocean Reef Condo, LLC ("Ocean Reef") owns Lot 4; plaintiff Ocean Boulevard, LLC ("OB"), owns Lots 5.01, 6, and 11; and plaintiff Lighthouse Property, LLC ("Lighthouse") owns Lots 12 and 13. Ocean Reef and OB are apparently owned by the same individual. All three plaintiffs are represented by the same counsel and advocate a common position in this case.
Defendant Haddad 228 Long Branch, LLC ("Haddad") is a real estate developer and the current owner of Lots 1 and 2 on Block 417. Lots 1 and 2 are side-by-side properties situated adjacent to Lot 4, bounded by Joline Avenue, Ocean Boulevard and Ocean Avenue. Lots 1 and 2 have a street address of 228 Ocean Avenue.
Lot 1 was the former site of a restaurant for many years, previously known as Bella Vista and The Reef Club. The restaurant building, as well as the residence on Lot 2, were demolished in or about 2010.
All of plaintiffs' and Haddad's properties on Block 417 are located within what is known as the Beachfront Mixed Zone ("RC-1 Zone") in Long Branch. As is relevant here, the RC-1 Zone permits a variety of uses, including, but not limited to, townhouses, beachfront commercial, eating and drinking establishments, health spas and/or gyms, and professional offices.
In October 2011, Haddad appeared before the Long Branch Planning Board seeking approval to build a new three-story restaurant on Lots 1 and 2. The proposed restaurant would occupy 11,356 square feet, and include a cocktail lounge, porch, deck and parking lot.
Plaintiffs and their counsel appeared before the Planning Board and objected to Haddad's proposed restaurant project. Plaintiffs argued that the project would violate a Long Branch Zoning Ordinance provision, as adopted in September 2008, which provides in pertinent part as follows:
The establishment of any new stand-alone commercial/retail/food uses shall be prohibited unless they are located adjacent to and abutting an existing stand-alone commercial use.
[Long Branch, N.J., Code § 345-28 (E)(2) (2009) (emphasis added).]
When addressing the Planning Board, plaintiffs' counsel inadvertently referred to subsection (B)(2) of the ordinance, which refers to accessory uses, rather than subsection (E)(2), quoted here. However, the substance of plaintiffs' arguments, and the briefs on appeal, have been directed to subsection (E)(2) rather than (B)(2).
Plaintiffs maintained that, because of the lack of an adjacent or abutting "stand-alone commercial use" next to Lots 1 and 2, Haddad must obtain a use variance under N.J.S.A. 40:55D-70(d) from the city's Zoning Board of Adjustment ("the Zoning Board") as opposed to only a bulk variance under N.J.S.A. 40:55D-70(c)(1) or (c)(2).
See generally William M. Cox & Stuart R. Koenig, New Jersey Zoning & Land Use Administration § 6-2.3 at 145-47 (2014) (discussing the more stringent requirements of a use variance under subsection (d) of the MLUL); see also Grasso v. Borough of Spring Lake Heights, 375 N.J. Super. 41, 50 (App. Div. 2004) ("The hardship that must be shown to justify a (c)(1) variance is less than that needed to justify a (d) variance for a special reason.").
Haddad maintains that no use variance is needed for the project because the prior long-time operation of a restaurant on the site authorizes a resumption of that restaurant use. Even so, out of an abundance of caution, Haddad applied to the Zoning Board for an interpretation of the applicable ordinance provisions, including Section 345-28(E)(2).
Haddad presented testimony from a professional planning expert to the Zoning Board in support of its application, while plaintiffs presented competing expert testimony from another professional planner in support of their objection.
On January 28, 2013, the Zoning Board ruled in favor of Haddad's interpretation, concluding that the proposed restaurant project does not require a use variance. Among other things, the Zoning Board's resolution read as follows:
15. After having considered all the testimony and [e]xhibits, the Board has determined that [Haddad's] Planner, Mr. Higgins' interpretation of the Ordinance is correct, in that the Ordinance does permit eating and drinking establishments as a Permitted Use which is specifically set forth in the Ordinance. Sub-section (D) of the Ordinance does not provide for any Conditional Uses, and in fact, under Article VII Conditional Uses, eating and drinking establishments are not present, and therefore, could not be a conditional use in the zone as it would have to be set forth in Article VII together with specific conditions associated with that use pursuant to [N. J.S.A. 40:55D-67].
16. The Board finds that Sub-section (E)(2) is a proximity ordinance and provides for the appropriate separation between commercial uses, and it [thus requires] a [N.J.S.A. 40:55D-70(c)] [bulk] variance.
17. The Board concludes that Section 345-28(E)(2) does not create a category of non-permitted uses, and under the particular facts of this proceeding, the proposed use is indeed permitted, subject to the bulk and proximity requirements set forth in the Land Use Ordinance.
[(Emphasis added).]
Disagreeing with this interpretation, plaintiffs timely filed a complaint in lieu of prerogative writs in the Law Division against Haddad and the Zoning Board. Plaintiffs asserted that the Zoning Board had misconstrued Ordinance Section 345-28(E)(2) in allowing Haddad to proceed with the project without a use variance. According to plaintiffs, such a use variance was necessary because Lot 4, the only parcel adjacent to Lots 1 and 2, was vacant land lacking any "standalone" commercial activity. Defendants Haddad and the Zoning Board countered that the Zoning Board's interpretation was correct as a matter of law.
As the trial court correctly recognized, the status of this matter significantly changed as the result of then-recent events concerning adjacent Lot 4. Within two weeks of the Zoning Board's resolution, Ocean Reef entered into an agreement with another entity, Envision Health and Fitness, LLC ("Envision"). Envision is a commercial tenant on Lot 5.01, where it operates an indoor health and fitness club.
As evidenced in a letter addressed to the city's Zoning Department, dated February 12, 2013, Ocean Reef granted permission to Envision to use Lot 4 for "outdoor exercise, subject to [Envision] obtaining any and all required municipal approvals." According to the submissions from Lot 4's owners memorialized in the Planning Board's minutes for March 19, 2013, the proposed exercise area on Lot 4 was to be used for "commercial purposes" from "mid-April ([d]epending on weather) till [sic] October, November," and only "during sunlight hours." The owners also stated that the 9600 square-foot area would include a sanded lot, a small storage shed (approximately 10 feet x 10 feet or 12 feet x 10 feet), and would host a maximum of twenty to twenty-five people. It was contemplated that exercise equipment would be carried from Envision for the outdoor classes and returned to the health club building when the outdoor classes finished.
At oral argument before us, plaintiffs' counsel indicated that he had not been consulted by his clients before they proceeded with these leasing arrangements with Envision.
Soon thereafter, on April 16, 2013, the Planning Board approved the application for Envision's outdoor fitness activity on Lot 4, with a few conditions. In particular, the Planning Board's resolution stated as follows:
5. The Applicant [Envision] provided testimony that any use of the lot would occur during sunlight hours; that he would expect no more than 25 people to utilize the lot at any one time; that if it were to rain during full use of the lot, there would be no problem with maximum occupancy to move all inside; and that he understood that any storage shed over 100 sq. ft. requires a building permit and that a smaller structure would have to be put in the center of the lot.
6. The Board concluded that the existing parking area for the 200 Ocean Boulevard commercial complex provided ample parking for both the existing and the proposed outdoor facility and that there is no need for a formal site plan map as the lot will not contain any permanent structures.
Based upon this approval from the Planning Board and its agreement with Ocean Reef, Envision began using the previously vacant Lot 4 for various outdoor exercise classes. Those outdoor exercise classes were publicized in a local newspaper article on May 9, 2013, and on Envision's Facebook page. Envision erected a small shed at the property line dividing Lots 4 and 5.01, apparently to store the equipment used for the outside exercise classes.
After becoming aware of the outdoor exercise classes taking place on Lot 4, counsel for the Zoning Board wrote a letter to the trial court, concluding that the activity on adjacent Lot 4 is a "commercial use," thereby making the parties' dispute moot. After a conference with the court exploring this issue with all counsel, defendants moved to dismiss the complaint on grounds of mootness. Plaintiffs opposed the motion, providing the court with various factual submissions concerning the use of Lot 4 by Envision. Among other things, plaintiffs stressed that no permanent structures or improvements had been erected on Lot 4, that the storage shed had been removed, and that the outdoor exercise classes were only seasonal in nature.
The trial court granted defendants' motion, agreeing that Envision's outdoor exercise classes on Lot 4 constituted a "stand-alone commercial use" within the meaning of Ordinance Section 345-28(E)(2), which eliminated any asserted need for the restaurant project on adjacent Lots 1 and 2 to secure a use variance. In her bench ruling dated December 6, 2013 the judge observed:
Obviously, what is key here is to what extent there is a genuine factual dispute as to whether or not Lot 4 now, which is the lot that is adjacent to and abutting the property at issue, whether Lot 4 is an existing standi[-]alone commercial use. And the [c]ourt finds that there is no genuine factual dispute with respect to that fact.
On February 12, 2012 plaintiff Ocean Reef Condo LLC executed a consent addressed to the City of Long Branch Zoning Department consenting to its tenant Envision Health and Fitness LLC, to permit it to utilize . . .
Lot 4 for an outdoor exercise area subject to the tenant obtaining any and all required municipal approvals.
Plaintiff's tenant then proceeded before the Planning Board of the City of Long Branch for a site plan approval to use the lot for commercial use, that use being an outdoor recreational facility. After a public hearing the Planning Board approved the commercial use by granting the site plan approval by resolution dated April 16, 2013.
Those critical and material facts are not in dispute. Given that those facts are not in dispute then the question remains as whether or not the action that is before the [c]ourt is rendered moot.
[(Emphasis added).]
Because the use was deemed to only require a minor site plan approval, a public hearing was not needed or conducted. N.J.S.A. 40:55D-46.1.
Having thus concluded that Envision's use of Lot 4 mooted the litigation on the legality of Haddad's proposed restaurant, the trial court entered a final judgment on December 6, 2013 dismissing plaintiffs complaint in lieu of prerogative writs with prejudice. The court did not provisionally reach any of the other issues raised in the case, including plaintiffs' claim that the former restaurant on Lot 1 had been abandoned.
Plaintiffs now appeal, contesting the trial court's declaration of mootness and its dismissal of their lawsuit conclusively with prejudice.
II.
The concept of mootness has been defined as the inability of a court, because of attendant circumstances, to grant judicial relief. See Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 92 (App. Div. 2000). Put another way, "[a] case is moot if the disputed issue has been resolved, at least with respect to the parties who instituted the litigation." Enron (Thrace) Exploration & Prod. v. Clapp, 378 N.J. Super. 8, 13 (App. Div.), certif. denied, 185 N.J. 392 (2005) (citation omitted).
Ordinarily, judicial economy dictates that courts do not attempt to resolve legal issues in the abstract, and thus moot or academic issues are generally dismissed. Finkel v. Twp. Comm. of Twp. of Hopewell, 4 34 N.J. Super. 303, 315 (App. Div. 2013). On occasion, however, courts will decide such issues where the controversy is one of substantial importance and is capable of repetition while evading review. See Joye v. Hunterdon Cent. Reg'l High School Bd. of Educ., 176 N.J. 568, 583 (2003). Notably, plaintiffs do not argue that the issue presented here involving this proposed restaurant is one of substantial importance, capable of repetition yet evading review.
The trial court correctly applied these mootness concepts here. We agree, as a matter of law, that Envision's use of Lot 4 for regular outdoor exercise classes, as formalized in both an approval granted by the Planning Board and in Ocean Reef's confirming letter supplied to the city's Zoning Department, compromised an adjacent "stand-alone commercial use." That obviated the alleged need of Haddad to obtain a use variance for its proposed restaurant.
Like the trial court, we reject plaintiffs' argument that the outdoor exercise classes on Lot 4 do not relieve Haddad of the need for a use variance because no permanent structure was built on Lot 4 for that purpose. Ordinance Section 345-28(E)(2) plainly authorizes new stand-alone commercial/retail/food uses when located next to "an existing stand-alone commercial use." (Emphasis added). The provision does not mention buildings or structures as an essential ingredient of that exception.
Notably, the terms "use" and "structure" are separately defined in the city's zoning code. Section 345-3 of the Code defines "use," as the "specific purpose for which land or a building is designed, arranged, intended or for which it is or may be occupied or maintained." Long Branch, N.J., Code § 345-3 (2009) (emphasis added). "Structure," defined in another part of Section 345-3, means "[a] combination of materials to form a construction on, under or above ground level and that is safe and stable and includes, among other things: buildings, parking areas, driveways, walkways, patios, decks, stadiums, platforms, radio/television towers, satellite dishes, sheds, storage bins, garages, fences, walls, pools and display signs." Ibid. (emphasis added).
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We also reject plaintiffs' argument that publicized comments from the city's business administrator and planning director allegedly prove that the purpose of the 2008 passage of Section 345-28(E)(2) was aimed at only free-standing commercial "buildings." Neither the city's business administrator nor planning director are elected representatives on the city's governing body who voted on the ordinance. Moreover, a basic canon of statutory construction requires courts not to "disregard plain statutory language to replace it with an unenacted legislative intent." Bd. of Chosen Freeholders of Hudson Cnty. v. Cnty. Exec. of Hudson, 357 N.J. Super. 242, 249 (App. Div.) (quoting Dempsey v. Mastropasqua, 242 N.J. Super. 234, 238 (App. Div. 1990) (citations omitted)), certif. denied, 177 N.J. 222 (2003).
Similarly, it is of no moment that the Planning Board did not require Envision or its landlord Ocean Reef to obtain a certificate of occupancy ("CO"), for the outdoor exercise activity on Lot 4. A CO only would be required for a building on the parcel. See N.J.A.C. 5:70-1.1 to -4.20. As we have already determined, the presence or absence of a building on Lot 4 is irrelevant to whether a stand-alone commercial use existed on the property.
The trial court's final order dismissing this lawsuit was therefore correct. We also reject plaintiff's request to revise the terms of the final order from a dismissal with prejudice to a dismissal without prejudice. Normally, a dismissal for mootness is not an adjudication on the merits and thus does not bar a future claim. Transamerica Ins. Co. v. National Roofing, Inc., 108 N.J. 59, 64 (1987). However, Judge Gummer found that the "critical and material facts," as to whether Lot 4 falls within the language of Ordinance 345-28(E)(2), "were not in dispute." Citing our decision in United Savings Bank v. State, 360 N.J. Super. 520 (App. Div.), certif. denied, 177 N.J. 574 (2003), she considered the competent evidential materials before her in the light most favorable to plaintiffs, and decided defendants' motion to dismiss as a motion for summary judgment pursuant to Rule 4:46-2. In United Savings, we held that if the summary judgment turns on a question of law, or if further factual development is unnecessary in light of the issues presented, then summary judgment need not be delayed. United Savings, supra, 360 N.J. Super. at 525. We find no basis for disturbing Judge Gummer's determination that there are no critical facts in dispute and that her dismissal was properly designated to be with prejudice.
At oral argument on appeal, plaintiffs' counsel represented that the outdoor exercise activities on Lot 4 have now ceased. Because that undocumented representation is beyond the record in this appeal, we do not consider it. Indeed, the trial judge expressed concerns in her oral ruling that a sudden stoppage of the commercial use of Lot 4 would result in the parties "run[ning] back in here next year" and reopening this adjudicated matter.
We share these concerns, and decline to alter the terms of the trial court's order, which was correct based on the facts presented to Judge Gummer at the time of her decision. Although we do not foreclose plaintiffs from filing a motion in the trial court to seek relief from the judgment based upon meritorious grounds, we express no view as to whether such a motion should be granted, assuming it were filed in good faith and interposed for legitimate reasons other than delay.
Affirmed I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION