Opinion
DOCKET NO. A-0105-15T4
02-02-2017
AURIGEMMA FAMILY TRUST, MARGARET ZAMPARDI, AND MICHAEL ZAMPARDI, Plaintiffs-Appellants, v. BOROUGH OF WOOD-RIDGE PLANNING BOARD, IRMA CONFORTI, AND NICHOLAS CONFORTI, Defendants-Respondents.
Cozzarelli, Cozzarelli & DiPopolo, L.L.C., attorneys for appellants (Frank P. Cozzarelli, on the brief). Aronsohn, Weiner, Salerno, Bremer & Kaufman, P.C., attorneys for respondent Borough of Wood-Ridge Planning Board (Gerald R. Salerno, on the brief). Connell Foley, L.L.P., attorneys for respondents Irma Conforti and Nicholas Conforti (Timothy E. Corriston, of counsel and on the brief; Allyson Kasetta, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fasciale and Gilson. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9261-14. Cozzarelli, Cozzarelli & DiPopolo, L.L.C., attorneys for appellants (Frank P. Cozzarelli, on the brief). Aronsohn, Weiner, Salerno, Bremer & Kaufman, P.C., attorneys for respondent Borough of Wood-Ridge Planning Board (Gerald R. Salerno, on the brief). Connell Foley, L.L.P., attorneys for respondents Irma Conforti and Nicholas Conforti (Timothy E. Corriston, of counsel and on the brief; Allyson Kasetta, on the brief). PER CURIAM
In this prerogative writs, the Aurigemma Family Trust, Margaret Zampardi, and Michael Zampardi (collectively plaintiffs) appeal from a July 14, 2015 judgment in favor of the Borough of Wood-Ridge Planning Board (the Board), Irma Conforti, and Nicholas Conforti (collectively defendants). The judgment affirmed the Board's approval of defendants' applications for tenancy change and expansion of their pre-existing nonconforming use. We affirm.
Defendants own property located in the Borough of Wood-Ridge (Borough), which is located in an R-3 Multifamily Residential Zone. On April 21, 2014, defendants filed an application with the Board to expand their pre-existing nonconforming use of the property as a restaurant. Defendants sought to change tenancy and open up a new family-owned Italian restaurant with takeout pizza on the premises. They planned to add a new façade to the restaurant, redo the bathrooms, add a pizza preparation area with pizza ovens, reduce the seating area from 150 patrons to 130 patrons, and add an addition to the back of the building. The addition would be approximately nine feet by twenty-seven feet, and would expand the kitchen. Defendants planned to remove the old refrigerator box and put in a new refrigerator within the addition. The Board held three public hearings, and voted to approve the addition in a fourth hearing.
In May 2014, the Board held the first public hearing. The Board heard testimony from defendant Nicholas Conforti, the owner's son and new tenant of the building, and Thomas Mesuk, a licensed architect. At this hearing, plaintiffs argued that defendants' application was barred under the doctrine of res judicata because substantially the same application was denied in 1978. The Board determined that the doctrine of res judicata did not apply because the 1978 application was for an addition much larger than the current application and the addition in the 1978 application was for a different reason.
At defendants' request, the Board bifurcated defendants' application. The Board stated that it would hear only the tenancy application at the first hearing. After listening to testimony, the Board approved the change in tenancy.
The second public hearing was held in June 2014 and addressed the application for the expansion of the pre-existing nonconforming use. The Board heard testimony from expert witnesses Mr. Mesuk, Anthony Marucci, a civil engineer, and Paul Bauman, a New Jersey planner. Both Mr. Marucci and Mr. Bauman discussed the positive and negative criteria with respect to the application.
In July 2014, the Board held the third public hearing and heard testimony from plaintiff Margaret Zampardi and defendant Nicholas Conforti. The Board granted the application at the end of the meeting and made stipulations on the approval of the application, including shrubbery along the back of the property and a screen fence around the garbage. The Board explained that they would not make a decision whether the refrigerator was legal, but would assume that the refrigerator was there legally. On August 20, 2014, the Board memorialized its findings on the application to expand the restaurant in a written resolution.
Plaintiffs filed this complaint in lieu of prerogative writ. On June 1, 2015, Judge William C. Meehan conducted a one-day trial and on July 14, 2015, entered judgment in favor of defendants. The court determined that defendants met both the positive and negative criteria, and the notice and bifurcation were appropriate. Furthermore, the court found that the 1978 application and current application were substantially different and therefore res judicata did not bar the application.
On appeal, plaintiffs argue:
POINT I
[]DEFENDANTS FAILED TO MEET THE BURDEN OF PROOF TO SUPPORT GRANTING A USE VARIANCE EXPANDING A PRE-EXISTING NON-CONFORMING USE[.]
POINT II
[DEFENDANTS'] PUBLIC NOTICE OF [THEIR] APPLICATION COMPLETELY FAILS TO CONFORM TO THE NOTICE REQUIREMENTS SET FORTH IN [N.J.S.A.] 40:55D-11 AND THEREFORE THE BOARD WAS WITHOUT
JURISDICTION TO CONSIDER THE APPLICATION AND THE [RESOLUTION] ADOPTED IS RENDERED NULL AND VOID[.]
POINT III
THE PROPER STANDARD OF REVIEW TO BE EMPLOYED HERE AS TO THE DECISION OF THE BOARD IS NOT DEFERENTIAL BECAUSE THIS IS A REVIEW OF A GRANT, RATHER THAN THE DENIAL OF A VARIANCE, AND THE REVIEW OF A VARIANCE GRANT IS NOT ENTITLED TO HEIGHTENED DEFERENCE[.]
POINT IV
[DEFENDANTS'] PLANNER [PROVIDED] A BOOTSTRAPPED AND NET OPINION WHICH MUST BE DISREGARDED[.]
POINT V
THE BOARD ABUSED ITS AUTHORITY BY BIFURCATING THE APPLICATION TO HEAR THE SITE PLAN REVIEW BEFORE HEARING THE D VARIANCE APPLICATION[.]
We affirm substantially for the thoughtful reasons expressed by Judge Meehan in his July 14, 2015 written opinion. We add the following remarks.
When reviewing a trial court's decision regarding the validity of a local board's determination, "we are bound by the same standards as was the trial court." Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). Thus, we give deference to the actions and factual findings of local boards and may not disturb such findings unless they were arbitrary, capricious, or unreasonable. Id. at 560. In other words, a board's actions must be based on substantial evidence. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 89 (2002). However, a local board's "legal determinations are not entitled to a presumption of validity and are subject to de novo review." Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 197 (App. Div. 2009).
Grants of variances are given less deference than denials of variances. Terner v. Spyco, Inc., 226 N.J. Super. 532, 547 (App. Div. 1988). Although they are given less deference, grants of variances are not legal determinations subject to de novo review. See Ibid. (stating that an appellate court should determine "whether there was sufficient, competent evidence before the Planning Board to show that it was not arbitrary or unreasonable for it to find that the statutory criteria had been met"); see also Burbridge v. Mine Hill, 117 N.J. 376, 385 (1990).
We reject plaintiffs' arguments that the application should have been treated as a d(1) variance and a d(2) variance and that defendants should have satisfied an "enhanced quality of proof" under Medici v. BPR Co., 107 N.J. 1 (1987). The court correctly determined defendants satisfied the positive and negative criteria for a d(2) variance.
An application for d(2) or d(1) variances require proof of positive and negative criteria. Sica v. Bd. of Adjustment, 127 N.J. 152, 156 (1992); N.J.S.A. 40:55D-70(d). For the positive criteria, "the applicant must establish 'special reasons' for the grant of the variance." Sica, supra, 127 N.J. at 156. "'[S]pecial reasons' takes its definition and meaning from the general purposes of the zoning laws" and the court "must look to the purposes of the Municipal Land Use Law. . . to determine what is a special reason." Burbridge, supra, 117 N.J. at 386 (citation omitted). For the negative criteria, the applicant needs to prove "the variance 'can be granted without substantial detriment to the public good' and that it 'will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.'" Sica, supra, 127 N.J. at 156 (quoting N.J.S.A. 40:55D-70(d)).
In Medici, the Court required "an enhanced quality of proof and clear and specific findings by the board of adjustment that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Supra, 107 N.J. at 21. In Burbridge, the Supreme Court explained that the Medici enhanced proof requirement only applied to new use variances. Supra, 117 N.J. at 398. Therefore, d(1) variances for the "creation of a new use" are subject to the restrictive standards of Medici, whereas d(2) variances "for expansion of a nonconforming use" are subject to the more liberal standards set forth in Burbridge. See Saadala v. E. Brunswick Zoning Bd. of Adjustment, 412 N.J. Super. 541, 547 (App. Div. 2010).
Here, defendants sought to expand their restaurant by 270 square feet in order to expand the kitchen, remove the refrigerator box in the rear of the building, and add a new refrigerator inside the addition. Although defendants sought to have takeout pizza at their restaurant, it was not arbitrary or capricious of the Board to determine, based on the testimony presented, that the new business was an expansion of a pre-existing use. Furthermore, the old refrigerator was not relevant to the application because it was being removed in order for the addition to be added.
Because this was a d(2) application, defendants were under no obligation to prove negative criteria under an enhanced standard of proof. The court properly determined that defendants met both the positive and negative criteria. The court explained that the property would serve the general welfare because it had been used as a restaurant for over thirty years and the public frequented it. The court also found the negative criteria were satisfied because the expansion "would not create a substantial detriment to the public good, and the intent and purpose of the zone plan and zoning ordinance will not be substantially impaired."
We reject plaintiffs' contentions that defendants' April notice to the public failed to comply with the N.J.S.A. 40:55D-11 because it did not (1) give the public adequate notice of the matter being considered; (2) provide a statement that site plan approval was being sought or that waiver of site plan approval was sought; (3) give any notice of the need for substantial variances for parking deficiencies; and (4) give notice of its application for bulk variances. The court properly found that defendants provided adequate notice of the hearings because defendants re-published and re-noticed the public of the June hearing, at which the Board considered the variance application.
N.J.S.A. 40:55D-11 states:
Notices pursuant to section 7.1 and 7.2 of this act 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 subsection 7.1 of this act, 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 subsection 6b.
Here, defendants gave adequate notice of the matter being considered. Their notice stated:
PLEASE TAKE NOTICE that on the 18TH day of June, 2014 a hearing will be held before the Wood-Ridge Planning Board on the application of the undersigned who requests variances so as to permit the expansion of the rear of the building structure to meet and incorporate the free-standing walk-in freezer box into the
existing structure and therefore, to seek an expansion of the present non-conforming use by the grant of a "D" variance in accordance with [N.J.S.A.] 40:55D-70[(d)(2)] ON THE PREMISES LOCATED [in] Wood-Ridge, New Jersey and designated as Block 292, Lot 14 on the Borough's Current Tax Map, located in a R3 zone. In addition to the above referenced "D" variance approval, the following variances are also proposed 1) Lot coverage variance; 2) Variance for rear yard setback requirements; 3) Use variances as stated and such other variances as may be required.
Plaintiffs maintain that the present case is similar to Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234 (App. Div. 1996). We disagree. In Perlmart, the court found that the notice provided was deficient because it only informed the public that the property would be a commercial lot and not a K-Mart shopping center. Id. at 239-40. Unlike Perlmart, the notice here properly described the matter being considered. The notice stated that the application was for an expansion of the present nonconforming use and the building had been used as a restaurant for several decades. An ordinary person would have understood that to mean that the application involved the expansion of the restaurant.
Furthermore, defendants were not required to provide notice for site plan review. N.J.S.A. 40:55D-12(a) states:
Public notice of a hearing shall be given for an extension of approvals for five or more years under subsection d. of section 37 of
P.L. 1975, c. 291 (C. 40:55D-49) and subsection b. of section 40 of P.L. 1975, c. 291 (C. 40:55D-52); for modification or elimination of a significant condition or conditions in a memorializing resolution in any situation wherein the application for development for which the memorializing resolution is proposed for adoption required public notice, and for any other applications for development, with the following exceptions: (1) conventional site plan review pursuant to section 34 of P.L.1975, c.291 (C.40:55D-46), . . . notwithstanding the foregoing, the governing body may by ordinance require public notice for such categories of site plan review as may be specified by ordinance, for appeals of determinations of administrative officers pursuant to subsection a. of section 57 of P.L. 1975, c. 291 (C. 40:55D-70), and for requests for interpretation pursuant to subsection b. of section 57 of P.L. 1975, c. 291 (C. 40:55D-70). Public notice shall also be given in the event that relief is requested pursuant to section 47 or 63 of P.L. 1975, c. 291 (C. 40:55D-60 or C. 40:55D-76) as part of an application for development otherwise excepted herein from public notice.The Borough does not require notice for hearings for "conventional site plan review, minor subdivisions, final approval pursuant to N.J.S.A. 40:55D-50 or minor site plan approval." The site plan approval did not have to be noticed because the initial hearing only considered the tenancy change and not the variance application.
[(Emphasis added).]
Moreover, defendants did not fail to give notice of bulk variances and parking variances. The notice for the second hearing corrected any deficiencies for bulk variances and parking variances due to the Board's bifurcation of the application.
We reject plaintiffs' argument that Mr. Marucci provided a net opinion because he did not analyze the master plan and "only sparingly reviewed the zoning ordinance." Mr. Marucci stated that he walked the site; reviewed the architect's plans, the Board's engineering reviews, and the Board's planner reports; and also familiarized himself with the Borough's zoning ordinances. He provided relevant testimony regarding the positive and negative criteria of the new addition to the property and stated his reasoning for each criteria. Therefore, Mr. Marucci did not provide a net opinion.
We also reject plaintiffs' argument that the Board abused its discretion in bifurcating the application. The trial court correctly found bifurcation "appropriate" because the issue of change in tenancy was separate from the building expansion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION