Opinion
DOCKET NO. A-3243-14T2
08-12-2016
JESSE ROSENBLUM, Plaintiff-Appellant, v. CLOSTER PLANNING BOARD, CLOSTER MARKETPLACE (EBA), LLC and CENTENNIAL AME ZION CHURCH, Defendants-Respondents.
John J. Segreto argued the cause for appellant (Segreto, Segreto & Segreto, attorneys; Jesse Rosenblum, on the pro se briefs). Arthur N. Chagaris argued the cause for respondent Borough of Closter Planning Board (Beattie Padovano, LLC, attorneys; Mr. Chagaris and Arthur M. Neiss, on the brief). Joseph L. Basralian argued the cause for respondents Closter Marketplace (EBA), LLC and Centennial AME Zion Church (Winne, Banta, Basralian & Kahn, P.C., attorneys; Mr. Basralian, Bruce R. Rosenberg and Lori A. Johnson, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2719-14. John J. Segreto argued the cause for appellant (Segreto, Segreto & Segreto, attorneys; Jesse Rosenblum, on the pro se briefs). Arthur N. Chagaris argued the cause for respondent Borough of Closter Planning Board (Beattie Padovano, LLC, attorneys; Mr. Chagaris and Arthur M. Neiss, on the brief). Joseph L. Basralian argued the cause for respondents Closter Marketplace (EBA), LLC and Centennial AME Zion Church (Winne, Banta, Basralian & Kahn, P.C., attorneys; Mr. Basralian, Bruce R. Rosenberg and Lori A. Johnson, on the brief). PER CURIAM
Closter Marketplace (EBA), LLC (Closter Marketplace) and Centennial AME Zion Church (Centennial Church) (collectively, applicants) filed an application with the Closter Planning Board (Board) seeking preliminary and final site plan and major subdivision approval. Thirteen public hearings were conducted from July 11 through December 12, 2013. The Board approved the application, including requested variances and waivers, and adopted a resolution memorializing its decision on January 30, 2014.
Plaintiff Jesse Rosenblum and The Great Atlantic & Pacific Tea Company, Inc. (A&P) filed separate complaints in lieu of prerogative writs challenging the Board's decision. The cases were consolidated in the Law Division, where the judge subsequently dismissed both complaints with prejudice by way of a conforming order filed on February 3, 2015.
Plaintiff and A&P filed separate notices of appeal, and we granted A&P's motion to consolidate. Thereafter, A&P amicably resolved its dispute and withdrew its appeal. We therefore consider only the points raised by plaintiff.
I.
Closter Marketplace owned Block 1607, Lot 1 in the Borough of Closter (Borough), known as Closter Plaza and consisting of approximately fifteen acres (the property). The property was improved with four separate buildings that existed for more than forty years and housed a variety of retail stores, restaurants, a movie theater and a bank, in a total of 211,483 square feet of floor space. A supermarket formerly existed on the site, but the space had been vacant for several years. Centennial Church owned property adjacent to Closter Plaza.
The property was located in the District No. 3 Business Area (District 3), where permitted uses included professional offices, banks, retail shops, restaurants, service establishments and outdoor cafes. Before taking testimony from the applicants' witnesses, the Board heard from Francis J. Banisch, a licensed planning consultant, who had been retained to prepare a report for the Board concerning its jurisdiction to consider the application. Banisch opined that there were no nonconforming uses existing or proposed on the property, and the requested variances could be granted by the Board pursuant to N.J.S.A. 40:55D-70(c).
The existing conditions did not comply with the Borough's zoning and site plan ordinances in several respects. There was virtually no landscaping on site, and the impervious coverage was 93.7%, which exceeded the maximum amount of 80% allowed by ordinance. Additionally, the ordinance only permitted one principal building per lot. The maximum area for retail stores was 45,000 square feet, and the K-mart store on the property occupied 84,020 square feet. Both the K-mart building and the movie theater exceed the maximum permitted building height of twenty-five feet. The ordinance required one parking space for every 175 feet of floor space, and the site provided one space for every 294 square feet.
Closter Marketplace's proposed site plan slightly reduced the total floor area to 208,337 square feet and increased the number of parking spaces to one for every 254 square feet. The number of buildings were to be reduced from four to three, and there were to be slight reductions in the total area and height of one of the buildings.
The proposed site plan included outdoor plazas, café seating, landscaping in the parking lot and along the adjacent streets and improved two-way traffic flow through the property. The applicants also proposed a .54 acre, or 25,000 square foot, subdivision to be taken from the southwest corner of the property. No improvements were proposed for the subdivided lot, and the subdivision application met all zoning requirements, except limits to maximum impervious coverage.
Six variances were requested by the applicants, including: 1) an impervious coverage variance, since, although there would be a slight reduction, the proposal exceeded the maximum permitted by ordinance; 2) an impervious coverage variance for the subdivided lot, which represented no change from the current impervious coverage on that parcel; 3) a front-yard setback variance for forty-two feet of a 960-foot linear wall intended to accommodate a ramp serving the proposed Whole Foods supermarket; 4) three principal buildings on the lot, instead of one as permitted; 5) square footage for one of the retail spaces, which, although a reduction, still exceeded the maximum permitted; and 6) height variances for two of the buildings. The applicants also sought nineteen site plan design waivers.
Joseph Burgis, the applicants' planning expert, testified regarding the benefits of the proposal and opined that it was consistent with the Borough's 2008 Master Plan Reexamination Report (Master Plan), which identified the revitalization of Closter Plaza as a goal. Burgis also testified that the Borough's requirement of one parking space for every 175 square feet of floor space was "a very outmoded standard."
A&P offered the testimony of Michael Kauker, a licensed professional planner, who opined that the Board did not have jurisdiction over the application because a shopping center comprised of multiple structures was not a permitted use in District 3. Kauker specifically acknowledged this was a "pre-existing nonconformit[y]." Furthermore, in Kauker's opinion, the subdivision would increase the intensity of the nonconforming use, and, because some buildings were being demolished and rebuilt, a use variance was required from the Board of Adjustment. However, Kauker agreed that if the total retail space were combined in one building, it would comply with the ordinance. Kauker also contended that the design waivers were actually requests for variances.
In its resolution approving the application, the Board found that: 1) all of the existing and proposed uses of the property were permitted in District 3 and, therefore, no use variance was needed; 2) the existing buildings and impervious coverage pre-dated the ordinances that governed the property; 3) the Master Plan described the property as "an outdated physical form . . . providing a tired and somewhat depressing visual image" and anticipated that modern supermarkets would require an increase in square footage; 4) the reconfiguration of the property into three buildings would bring it into closer conformity to the ordinance that permitted only one principal building per lot; 5) there was no expansion of any nonconforming structures because there would be approximately 3000 less square feet after renovations than previously existed; and 6) the waivers and variances sought by the applicants "[we]re warranted" for reasons set forth in the resolution.
The Board concluded that the proposed site plan was consistent with the Master Plan and provided "an internally consistent, eye-appealing visual image, and . . . an adequate transition to and with the older downtown area of Closter." Although variances were required, the plan presented "a far better zoning alternative to the community than the current zoning requirements would otherwise allow." The Board found that the variances could be "granted without any substantial detriment to the public good," that the benefits would "substantially outweigh any detriment," and that the variances would not "substantially impair the intent and purposes of the zone plan and the zoning ordinance."
The Board further concluded that the benefits of the application advanced the purposes of zoning as set forth in N.J.S.A. 40:55D-2(b),(e),(g),(i), and (n). Regarding the requested waivers, the Board concluded that
the nature and the extent of the waivers sought are either pre-existing conditions, or are of such a nature that their benefit, as a whole and taken with the nature and extent of the entire project, substantially outweigh any detriment that would occur and they do not substantially impair the intent and purpose of the zone plan and the zoning ordinances.The Board also granted the subdivision, concluding that "it complie[d] with all of the ordinances concerning setback, square footage, impervious coverage and building coverage, among other requirements."
In actuality, Burgis testified that the existing impervious coverage on the lot would remain the same, and it exceeded the maximum permitted by ordinance.
After considering oral argument, the trial judge filed a comprehensive written opinion that accompanied his order dismissing plaintiff's complaint. We discuss the judge's opinion in addressing the arguments now raised.
II.
We set forth some well-known principles. 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 Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004); accord 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. (citation 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. Nuckel v. Little Ferry Planning Bd., 208 N.J. 95, 102 (2011) (citing Fallone Props., supra, 369 N.J. Super. at 561); Bubis v. Kassin, 184 N.J. 612, 627 (2005). While "'a municipality's informal interpretation of an ordinance is entitled to deference, that deference is not limitless,'" and we consider the "'meaning of an ordinance's language'" de novo. Dowel Assocs. v. Harmony Twp. Land Use Bd., 403 N.J. Super. 1, 29-30 (App. Div.) (quoting Bubis, supra, 184 N.J. at 627), certif. denied, 197 N.J. 15 (2008).
When a development application for site plan approval is filed, a planning board may consider requests for variances that are cognizable under N.J.S.A. 40:55D-70(c). N.J.S.A. 40:55D-60(a). The applicant bears the burden of proving entitlement to the variance. Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 29-30 (2013). However, variances seeking to permit or expand a non-conforming use must be brought before the Board of Adjustment. See, e.g., Nickels v. City of Wildwood, 140 N.J. 261, 266 (1995); N.J.S.A. 40:55D-70(d).
A.
In the Law Division and now before us, plaintiff contended that the Board lacked jurisdiction to consider the application. He argues that because the number of buildings exceeded the one building per lot limit of the zoning ordinance, the applicants were required to obtain a use variance. Plaintiff also argues that Closter Plaza was not a "pre-existing" nonconforming use, nor were its buildings "pre-existing" nonconforming structures, because when constructed, the ordinance included a one building per lot limit. As a result, the development application should have been submitted to the Zoning Board of Adjustment.
The trial judge found that there were pre-existing nonconforming structures on the property, but no nonconforming uses, because the property was zoned for retail uses. Therefore, a use variance was not required and the Board had jurisdiction over the application. We essentially agree with the judge's reasoning.
The Zoning Board of Adjustment has exclusive jurisdiction to "grant a variance to allow departure from regulations . . . to permit: [] a use or principal structure in a district restricted against such use or principal structure, [and] an expansion of a nonconforming use." N.J.S.A. 40:55D-70(d)(1) and (2). "'Structure' means a combination of materials to form a construction for occupancy, use or ornamentation whether installed on, above, or below the surface of a parcel of land." N.J.S.A. 40:55D-7. "'Nonconforming structure' means a structure the size, dimension or location of which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption, revision or amendment." N.J.S.A. 40:55D-5. Although the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, does not define "use," it defines a "nonconforming use" as "a use or activity which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption, revision or amendment." Ibid.
During oral argument, plaintiff conceded that no reported case has held that a development application including more buildings than permitted on a particular lot requires a use variance, or for that matter, any type (d) variance. In Commercial Realty & Resources Corp. v. First Atlantic Properties Co., 122 N.J. 546, 564 (1991), the Court acknowledged that the phrase in subsection (d) — "restricted against such principal structure" — had been "virtually ignored in published opinions since it was first introduced in the 1928 zoning act." The Court concluded, however, that
where a structure violates a dimensional restriction of a zoning ordinance but the underlying use is permitted, the required variance is dimensional, under [N. J.S.A. 40:55D-70(c)], and not a use variance involving a prohibited structure. We need not determine here the definitive interpretation of the statutory phrase, but we infer that it is intended to apply to zoning ordinances that restrict specific types of structures, such as churches or billboards, irrespective of their underlying uses, requiring variances from such restrictions to be processed under [N. J.S.A. 40:55D-70(d)].N.J.S.A. 40:55D-68 provides that "[a]ny nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the structure so occupied and any such structure may be restored or repaired in the event of partial destruction thereof." "Where . . . the use is permitted but the structure is nonconforming, an expansion of the nonconformity requires a c variance." Cox & Koenig, N.J. Zoning & Land Use Admin., § 33-2.1 at 723 (2015); See also Engleside at W. Condo. Ass'n v. Land Use Bd. of Beach Haven, 301 N.J. Super. 628, 637 (Law Div. 1997) ("[I]t can be inferred that the Legislature has chosen, by omitting reference to a nonconforming structure in subsection d, to treat expansions of nonconforming structures as subsection c bulk variances."). We conclude, therefore, that a use variance was not required.
[Ibid. (emphasis added).]
In North Bergen Action Group v. North Bergen Township Planning Board, 122 N.J. 567, 576 (1991), which was decided on the same day as Commercial Realty, the Court rejected an argument that a height variance required relief under subsection (d) because it could implicate density regulations, from which relief may only be granted through a (d) variance. See N.J.S.A. 40:55D-70(d)(5). The Court reached that conclusion because "height restrictions may affect density, but they need not, because structures that exceed height limitations may comply with density regulations." Ibid. So too here, the one lot-one building zoning regulation does not necessarily implicate other type (d) variances. --------
Plaintiff also contends that Closter Marketplace was not entitled to the protection of N.J.S.A. 40:55D-68 because the buildings were already non-conforming structures when built. See, e.g., Schofield v. Zoning Bd. of Adjustment of Dennis, 169 N.J. Super. 150, 155 (App. Div. 1979) (holding that where the use of the property was not valid when the ordinance was passed, it could not be considered a pre-existing non-conforming use); see also Ianieri v. Zoning Bd. of Adjustment of E. Brunswick, 192 N.J. Super. 15, 23-24 (Law Div. 1983) (holding that a prior illegal use of property cannot become "non-conforming" by passage of a later zoning ordinance); Cox & Koenig, supra, § 27-5 at 589 (labeling such situations as "Pseudo-Nonconforming Uses and Structures").
Plaintiff argues that because Closter's 1940 ordinance included the one building per lot limit, and because Closter Plaza was built forty years ago, it was non-conforming when built, and therefore not a "pre-existing nonconforming structure." However, the record is particularly unclear on this point.
Initially, plaintiff appeared before the Board, marked Closter's 1940 land use ordinance for identification and briefly stated that Closter Plaza was not in conformance when built. The Board's resolution does not specifically address the argument, although it characterizes the property as containing pre-existing nonconforming buildings. Indeed, all the experts concluded the property contained "pre-existing" nonconforming structures, and the Board reached the same conclusion.
Moreover, we have not been supplied with a transcript of the Law Division trial, and since the judge did not address the issue in his written decision, we might presume that it was not raised before him. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (appellate courts will generally refuse to consider issues not properly raised in the trial court). Most importantly, plaintiff acknowledges he lacks any proof that the initial construction of Closter Plaza was illegal, or that its then owners failed to secure the necessary approvals. As a result, we reject plaintiff's argument and conclude that the Board had jurisdiction to hear the application.
B.
In considering design waivers requested by the applicants, the Board concluded in its resolution that
the nature and [] extent of the waivers sought are either pre-existing conditions, or are of such a nature that their benefit as a whole and taken with the nature and extent of the entire project, substantially outweigh any detriment that would occur and they do not substantially impair the intent and purposes of the zone plan and zoning ordinances.The trial judge concluded the waivers were permitted under the site plan ordinance and no variances were required.
Article XIII, § 200-63, of Closter's zoning ordinance, entitled "Specific use regulations for all districts," states: "No building shall be erected, constructed or altered for any nonresidential use of purpose unless the provision of Article IX shall have been followed and until the site plan, as therein set forth, shall have been approved by the Planning Board and by the Mayor and Council." Article IX, in turn, applies specifically to District No. 4B, generally permitting offices and other specific uses, and specifically prohibiting properties therein to be used for "[o]n-premises retail and wholesale sales."
While it was in the litigation, A&P raised several arguments, contending the provisions of Article IX were zoning regulations that applied to the application, and certain features of the site plan could not be granted waivers pursuant to the site plan ordinance. The Board, essentially relying on the expert testimony at the hearings, concluded that Article XIII's reference to Article IX was an outdated anomaly, and that, in any event, the Board's specific findings and conclusions would warrant the grant of a variance.
Before us, plaintiff seemingly contends that the Board was required under the MLUL to ask the Zoning Board of Adjustment for an interpretation of the zoning regulations. We disagree. The regulations were clearly in conflict and, if read literally, contravened the MLUL and the site plan ordinance, because Article IX required the site plan to be approved by the Mayor and Council. See N.J.S.A. 40:55D-37 and 38 (providing for adoption of an ordinance that gives site plan approval power to the Planning Board). Moreover, Article IX, which specifically defined the conditions in a particular zone, did not apply to this application for property in an entirely different zone.
C.
The Board specifically found that when the development was completed, one hundred more parking stalls would be added, although the total number was still less than required by ordinance. As a condition of approval, the Board required the applicants to
contribute to the Closter Parking Authority an amount equal to the amount required for fourteen (14) parking spaces, which are required but that are not included on the [p]lans, as specified in the Closter Code, at a cost of $1,650 per parking space, which amount shall be held in the Closter Reserve Parking fund.Plaintiff contends the Board's decision was arbitrary, capricious and unreasonable, seemingly because the Board should have required the applicants to purchase more spaces. However, the Board clearly considered the issue and determined any increase in the number of parking spaces over the pre-existing deficiency was significant and justified approval of the site plan waiver with this additional condition. We cannot conclude this decision was arbitrary, capricious or unreasonable.
Plaintiff also argues a landscape buffer was required along a point of two-way traffic access because it was adjacent to Centennial Church's property. However, Closter Marketplace properly notes that the ordinance cited by plaintiff applies to off-street loading areas, and the site plan does not include such an area adjacent to the church.
To the extent we have not otherwise specifically addressed them, plaintiff's remaining arguments lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION