Opinion
DOCKET NO. A-4344-11T4
06-06-2013
JOSEPH A. COURTER, JUDITH M. COURTER, BUD NOBLE, EMILY GUARRIELLO and SHIRLEY LATHBURY, Plaintiffs-Appellants, v. ABSECON PLANNING BOARD and BOARDWALK DEVELOPMENT AND DESIGN COMPANY, LLC, Defendants-Respondents.
Jeffrey I. Baron argued the cause for appellants (Baron & Brennan, P.A., attorneys; Mr. Baron, of counsel and on the briefs; Jeffrey M. Brennan, on the briefs). Michael J. Fitzgerald argued the cause for respondent Absecon Planning Board (Fitzgerald, McGroarty & Malinsky, P.A., attorneys; Mr. Fitzgerald, of counsel and on the brief). Richard F. DeLucry argued the cause for respondent Boardwalk Development and Design Company, LLC (Cooper Levenson April Niedelman & Wagenheim, P.A., attorneys; Mr. DeLucry, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Alvarez and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-7705-11.
Jeffrey I. Baron argued the cause for appellants (Baron & Brennan, P.A., attorneys; Mr. Baron, of counsel and on the briefs; Jeffrey M. Brennan, on the briefs).
Michael J. Fitzgerald argued the cause for respondent Absecon Planning Board (Fitzgerald, McGroarty & Malinsky, P.A., attorneys; Mr. Fitzgerald, of counsel and on the brief).
Richard F. DeLucry argued the cause for respondent Boardwalk Development and Design Company, LLC (Cooper Levenson April Niedelman & Wagenheim, P.A., attorneys; Mr. DeLucry, of counsel and on the brief). PER CURIAM
Plaintiffs Joseph A. Courter, Judith M. Courter, Bud Noble, Emily Guarriello, and Shirley Lathbury appeal the Law Division's decision affirming defendant Absecon Planning Board's (Planning Board) Resolution No. 2-2011. The resolution approved defendant Boardwalk Development and Design Company, LLC's (Boardwalk) amended site plan application, pursuant to the Age Restricted Development Conversion Law (Conversion Law), N.J.S.A. 45:22A-46.3 to -46.16, to remove the age restriction on a proposed residential development. The challenged resolution also allowed changes to several aspects of the previously approved site plans. We affirm essentially for the reasons stated by Judge Littlefield, briefly commenting only on three points plaintiffs raise on appeal.
I
A brief review of the events and circumstances leading to the application is necessary. In May 2005, Absecon Senior Services, L.L.C. (Absecon Senior), in furtherance of its planned construction of an age-restricted housing complex consisting of eight townhouses and seventy-seven apartment or condominium units, obtained Planning Board approval for a preliminary site plan and variances for Block 161, Lot 1, by way of Resolution No. 4-2005. The plan included the demolition of the former Marsh Elementary School. Absecon Senior obtained variances related to yard setbacks, building lengths, building coverage, and the widening of nearby streets. Also, Absecon Senior proposed to provide public parking on an adjoining lot. The Planning Board issued final approval in November 2005, as set forth in Resolution No. 10-2005.
Absecon Senior then sold the project to the Pinnacle Club at Absecon, L.L.C. (Pinnacle). Pinnacle partially constructed the "northern portion of the [seventy-seven] unit building" but "substantially and improperly deviated from the approved design." The building was twelve feet taller than the height originally approved by the Board. Because of financial problems, in 2008, Parke Bank (Parke) gained control of the project. Due to Pinnacle's improper construction, Parke applied to the Planning Board "to address the[] inconsistencies, both with respect to the completed and uncompleted portions of the building." Pinnacle, on behalf of Parke, requested that it be allowed to construct the seventy-seven unit building during the project's phase I instead of phase II, while deferring construction of eight townhouses to phase II. Pinnacle also sought variances for certain architectural features which the Planning Board found "substantially compl[ied] with the prior design." In October 2008, the Planning Board granted Pinnacle's/Parke's application. Unfortunately, the property was "in bankruptcy for a period" of approximately eighteen months between 2008 and 2010.
Parke eventually sold the project to Boardwalk. Boardwalk applied for Planning Board approval of the following proposed modifications: a redesign of the basement area, an upgrading and expansion of the decks/balconies, improvement of the existing north wing's façade, postponement of the future south wing to phase II, and construction of the townhouses in phase I. In August 2010, after a public hearing, the Planning Board issued Resolution No. 6-10, approving Boardwalk's application.
Next, Boardwalk sought removal of the age restriction in March 2011, under N.J.S.A. 45:22A-46.3, generating public opposition. The proposed expansion of the project included Block 160, Lot 8, a second plot of land known as Parcel 2 containing .27 acres, and Parcel 3, another piece containing .19 acres, thus slightly increasing the area of the project site, and relocating Mechanic Street. The total number of units would be reduced from eighty-five to seventy-four, forty to be located in the already constructed northern portion, while the eight townhouses would be sited along Church Street. Forty-eight units would be completed in phase I, while four two-bedroom townhouses, two two-bedroom flats, and two one-bedroom flats would be constructed in phase II. Phase III would add seven two-bedroom townhouses on School Street and four two-bedroom townhouses on New Jersey Avenue. Phase IV would include seven two-bedroom townhouses on New Jersey Avenue. In sum, the number of bedrooms would decrease from 151 to 141 while the number of parking spaces would increase from 94 to 161 spaces. Space designated for recreational amenities would increase from 6322 to 7134 square feet due to the addition of a pool.
The Planning Board held public hearings in March, April, and May 2011 regarding Boardwalk's application. The Planning Board's June Resolution No. 2-2011 granting approval addressed legal and public concerns about traffic circulation, stormwater management, zoning, conversion eligibility, impact on the school district, and the absence of substantial detriment to the public good attributable to an increase in crime.
The Planning Board made the approval conditional — first, Boardwalk had to "resolve the existing building height violation by an amendment to the Redevelopment Plan" or "modify the building height to eliminate the violation." Second, the Planning Board disallowed the construction of the "proposed townhomes located within Phase 4 of the project . . . unless the applicable zoning is modified so as to permit this use." Third, Boardwalk was "required pursuant to N.J.S.A. 45:22A-46.5(a)(3) to agree that 20% of the units in the development will be provided as affordable units in accordance with the regulations promulgated by the Council on Affordable Housing." On this point, Boardwalk "indicated its intent to seek approval from the Absecon City Council so as to permit the payment to the City of an in lieu contribution rather than the actual construction of affordable units." Fourth, the condominium association documents had to "adequately address the prohibition on the conversion of other rooms or garages into bedrooms and must provide adequate penalties and enforcement procedures." Fifth, since the project proposed relocation and a "vacation of a portion of Mechanic Street," such action was "subject to approval by the Absecon City Council" and Boardwalk had to "dedicat[e] a right of way to the City for the relocation." Sixth, Boardwalk must "provide a good faith effort to market the units" to its promised "target buyers" consisting of "young professionals, empty nesters and second home buyers."
In an Atlantic City Press article published April 21, 2011, the Planning Board's Chairman Henry Gorohoff was quoted as saying, "The issue here is the health of the downtown area" because "[a]ny way you look at it, Absecon will certainly benefit from this project." Since the comment became an issue, Gorohoff clarified his position at the second public hearing stating: "I wanted to define my last quote in the Press. I said 'Whether age restricted or market rate, the city and downtown Jersey Avenue will benefit.' I meant that financially." We note that earlier in the article Gorohoff was quoted as stating: "Personal opinions on this topic are not relevant"; and that the Board's task is "to simply make a decision based on the evidence provided. There is a checklist of things the applicant must address, including parking and the number of available bedrooms."
II
On appeal, plaintiff raises the following issues:
I. THE TRIAL COURT COMMITTED ERROR IN DETERMINING THAT THE PLANNING BOARD HAD JURISDICTION TO CONSIDER BOARDWALK'S APPLICATION FOR AMENDED SITE PLAN APPROVAL
A. Boardwalk's Application for Amended Site Plan Approval sought approval for certain uses and improvements not permitted by the Redevelopment Plan.
B. The Redevelopment Plan prohibited the possibility of obtaining a "use 'd' variance" for the proposed prohibited uses on Redevelopment Parcels 2 and 3.
C. Boardwalk never sought or obtained a "d(6)" variance to permit the mid-rise building's nonconforming height.
D. The Planning Board lacked authority to condition its approval upon the obtainment of Amendments to the Redevelopment Plan.
II. THE TRIAL COURT COMMITTED ERROR IN UPHOLDING THE PLANNING BOARD'S DETERMINATION THAT BOARDWALK SATISFIED THE REQUIREMENTS OF THE AGE-RESTRICTED DEVELOPMENT CONVERSION LAW, N.J.S.A. 45:22A-46.3, ET SEQ.
A. Boardwalk failed to establish the preconditions necessary for approval of an age-restricted conversion application.
i. Boardwalk substantially amended the previously approved site plan following the effective date of the Conversion Law thereby making the development ineligible for age-restricted conversion.
ii. Boardwalk never agreed to set aside 20 percent of the development's units for affordable housing.
B. Boardwalk failed to satisfy the criteria enumerated by N.J.S.A. 45:22A-46.6 for approval of an age-restricted conversion application.
i. The site does not meet the Residential Site Improvement Standards parking requirement for the residential land uses in a converted development as established pursuant to N.J.A.C. 5:21-4.14 through 4.16.
ii. The conversion cannot be granted without substantial detriment to the public good and will substantially impair the intent and purpose of the zone plan and zoning ordinance.
C. Boardwalk failed to satisfy the criteria enumerated by N.J.S.A. 45:22A-46.8 for approval of an age-restricted conversion application.
III. THE TRIAL COURT COMMITTED ERROR IN DETERMINING THAT THE PARTICIPATION OF PLANNING BOARD CHAIRMAN GOROHOFF DID NOT
IRREVOCABLY TAINT THE PLANNING BOARD'S CONSIDERATION OF BOARDWALK'S APPLICATION
The applicable standard of review is well-established. "Judicial review of the decision of a Planning Board or Board of Adjustment ordinarily is limited. A board's decision 'is presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable.'" New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999) (internal quotations omitted) (quoting Smart SMR of New York, Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998)). Similarly, "[i]t is axiomatic that where a statute gives a local board the discretion to grant certain relief, a court may intervene only upon a showing that the board's decision was arbitrary, unreasonable or capricious." Urban v. Planning Bd. of Manasquan, 238 N.J. Super. 105, 111 (App. Div. 1990) (citing Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965)), modified on other grounds, 124 N.J. 651 (1991); see also Cell S. of N.J. v. Zoning Bd. of Adjustment of W. Windsdor Twp., 172 N.J. 75, 81-82 (2002). The party challenging the municipal board's decision bears the burden of overcoming the presumption of validity and demonstrating the unreasonableness of the board's action. Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 256 (2008). The reason for this standard is that
public bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion. The proper scope of judicial review is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record.
[Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005) (citation omitted).]
"A board's resolution of factual issues must stand if supported by sufficient credible evidence in the record." Trust Co. of N.J. v. Planning Bd. of Freehold, 244 N.J. Super. 553, 570 (App. Div. 1990) (citing Rowatti v. Gonchar, 101 N.J. 46, 51 (1985)); see also Cell S., supra, 172 N.J. at 89 ("[T]he substantial evidence standard is analogous to the arbitrary, capricious, and unreasonable standard of review traditionally afforded to decisions of zoning boards under the MLUL.").
"Although courts defer to the expertise of municipal agencies in reviewing discretionary exercises of an agency's statutory powers, the interpretation of an ordinance is primarily a question of law." Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). Therefore, "[a] board's interpretation of an ordinance is not entitled to any particular deference and is reviewed de novo because 'the interpretation of an ordinance is a purely legal matter as to which the administrative agency has no particular skill superior to the courts' [skill].'" Reich v. Borough of Fort Lee Zoning Bd. of Adjustment, 414 N.J. Super. 483, 499 (App. Div. 2010) (quoting Jantausch v. Borough of Verona, 41 N.J. Super. 89, 96 (Law Div. 1956), aff'd, 24 N.J. 326 (1957)).
III
Plaintiffs contend that "Boardwalk should have filed its application with the Zoning Board" because "the Zoning Board was the only land use board that hypothetically could have granted a "d" variance." Plaintiffs' point is premised on the fact that height and use variances traditionally fall under the category of "d" variances. Plaintiffs concede, however, that only Absecon City Council (Council), as opposed to the Zoning Board, can amend the Redevelopment Plan to adjust the maximum height and permit new uses for the parcels not included in the original approvals.
In any event, plaintiffs premise their argument on the fact that the Planning Board did not have jurisdiction because Boardwalk never obtained a "d(6)" variance for a height adjustment. Plaintiffs argue that such variances would "necessitate[] an 'affirmative vote of at least five members' of the zoning board of adjustment," (quoting N.J.S.A. 40:55D- 70(d)(6)), and the residential use of Parcels 2 and 3 required approval from the Zoning Board pursuant to N.J.S.A. 40:55D-70(d)(1), but the Redevelopment Plan "expressly precluded this possibility."
Plaintiffs also argue that the Planning Board could not condition its approvals on future decisions made by Council because "Boardwalk should have first sought to have the Redevelopment Plan amended by Council before filing its application with the Planning Board." Defendants respond that the Planning Board had the authority to condition its approval upon Council amending the Redevelopment Plan to permit a height adjustment and the new residential use, or in the alternative, requiring Boardwalk to lower the height to meet the original requirements and proceed in conformance with the original use of Parcel 2 and Parcel 3.
The issue calls for analysis of the interaction of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -73, and the Redevelopment Plan adopted by Council. The LRHL provides for planning board review of redevelopment applications but does not specifically address variances. See Cox & Koenig, Zoning & Land Use Administration 956-57 (2013). The relevant section of the statute states:
All applications for development or redevelopment of a designated redevelopment area or portion of a redevelopment area shall be submitted to the municipal planning board for its review and approval in accordance with the requirements for review and approval of subdivisions and site plans as set forth by ordinance adopted pursuant to the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.).
[N.J.S.A. 40A:12A-13.]
The MLUL allows planning boards to grant "c" variances, N.J.S.A. 40:55D-70(c), but not "d" variances, N.J.S.A. 40:55D-70(d). It does not authorize planning boards to grant conditional approvals for such variances, since the zoning board has exclusive authority over such applications. See N.J.S.A. 40:55D-20. The MLUL does, however, permit municipal agencies to grant conditional approvals under certain circumstances requiring approvals by others:
In the event that development proposed by an application for development requires an approval by a governmental agency other than the municipal agency, the municipal agency shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency; provided that the municipality shall make a decision on any application for development within the time period provided in this act or within an extension of such period as has been agreed to by the applicant unless the municipal agency is prevented or relieved from so acting by the operation of law.
[N.J.S.A. 40:55D-22(b).]
In its decision, the trial court cited Randolph v. City of Brigantine Planning Bd., 405 N.J. Super. 215, 234-35 (App. Div. 2009) ("Courts favor the grant of preliminary approval of development applications conditioned upon the applicant securing necessary property rights."). The case involved a planning board conditioning its approval upon city council agreeing to vacate a street. Ibid.; see N.J.S.A. 40:55D-22(b). Randolph establishes that a "governmental agency" as referred to in N.J.S.A. 40:55D-22(b) can include a city council. Plaintiffs nonetheless attempt to distinguish Randolph because it involved the vacation of a street as opposed to items that would otherwise be considered "d" variances, such as height and use, which touch upon the underlying zoning.
Plaintiffs cite instead to Najduch v. Township of Independence Planning Board, 411 N.J. Super. 268 (App. Div. 2009), to support their position that a planning board cannot grant conditional approvals based on a developer obtaining "d" variances from the zoning board. In that case, the Independence Township Planning Board was found to "lack[] authority to grant a use variance" pursuant to N.J.S.A. 40:55D-60. Id. at 276. As we said there, the "planning board . . . is a 'creature[] of statute and may exercise only those powers granted by statute.'" Ibid. (alteration in original). Since N.J.S.A. 40:55D-76(b) allowed the zoning board to exercise the same powers as the planning board and N.J.S.A. 40:55D-20 mandated that "power expressly authorized" to the zoning board "shall not be exercised by any other body," the zoning board had exclusive jurisdiction over "d" variances. Id. at 276-77. Plaintiffs argue that a similar sequence of approval is appropriate in this case — only after Council amends the Redevelopment Plan to include the zoning-related changes should the Planning Board approve the site plan.
In our view, Najduch and N.J.S.A. 40:55D-70(d), do not apply to this situation. Here, because the modification is to an approval granted under a Redevelopment Plan, the Planning Board reviews the site plan while only Council can review a request for use and height variances which require formal amendments to the Redevelopment Plan. And the Planning Board specified that if the height restriction is not modified by Council, the redeveloper will have to lower the height of the building, and he has agreed to do so.
If Council does not approve the section of townhouses on New Jersey Avenue, Phase IV of the project will simply not be built. According to the developer's expert, such a situation will not "impact negatively on the project's [Conversion Law] compliance" and "will end up being less of a demand on the infrastructure." As a practical matter, the order of the approvals — Council before the Planning Board or vice versa — given the wording of the conditions, is inconsequential.
Council cannot engage in site plan approval under local ordinances, the LHRL, or the MLUL, but it does have the power to amend the Redevelopment Plan. The Planning Board has no authority to grant height or use variances under the Redevelopment Plan, but can grant site plan approvals. Only the Redevelopment Plan addresses height and use variances: "Permitted Uses within each Redevelopment Parcel shall be limited to the uses enumerated herein. Uses not specifically enumerated shall be prohibited." "Except as otherwise provided for herein or by law, this Redevelopment Plan does not recognize the 'use ('d') variance' process under the Municipal Land Use Law. Uses proposed but not permitted by this Redevelopment Plan shall require a formal amendment to this Plan pursuant to law." With respect to height, the Redevelopment Plan states that
[w]ith the exception of regulations pertaining to Maximum Building Height, the Planning Board, at time of Site Plan Review and without formal amendment to this Redevelopment Plan, may approve modifications in or changes to the Building Limit Controls requested by a Redeveloper to a maximum of twenty percent (20%) of the subject regulation. Requests beyond 20% shall require a formal amendment to this Plan pursuant to law.Therefore any "variances" from use and height must be obtained through Council's amendment to the Redevelopment Plan. Nothing in the LHRL, the MLUL, or the Redevelopment Plan expressly prohibit such a sequence.
IV
Plaintiffs also claim the Planning Board's decision, embodied in Resolution No. 2-2011, that Boardwalk's application met the requirements for conversion under N.J.S.A. 45:22A-46.5, -46.6, and -46.8, issued in error. They alleged the resolution violated preconditions of the Conversion Law.
N.J.S.A. 45:22A-46.5(a)(1) requires that "preliminary or final approval for construction of the development has been granted prior to the effective date" of July 2, 2009, in order to be eligible for conversion. Plaintiffs claim that the approval of Boardwalk's site plan amendment to the original plan in 2010 followed the effective date despite the fact that the project was first approved in 2005 and amended in 2008. Defendants counter that since the original application was filed and approved within the time limits and since the law allows for reasonable revisions, N.J.S.A. 45:22A-46.8, that this requirement is satisfied. Indeed, the trial court found that "Plaintiffs' argument contradicts the plain meaning of the statute. Moreover, the conversion statute provides for the reasonable revision of the site plan."
First, it appears that the Conversion Law is more flexible than plaintiffs suggest, since it allows for both preliminary and final approvals occurring before July 2, 2009. See N.J.S.A. 45:22A-46.5(a)(1). Second, the law allows for reasonable revisions of the original plan in the event of conversion. See N.J.S.A. 45:22A-46.8(a). Boardwalk's 2011 application for conversion contained changes made in contemplation of the lifting of the age restriction. Therefore, if such changes constitute a reasonable revision, as will be discussed below, the fact that conversion was sought after July 2, 2009, has no effect on this precondition. Third, Boardwalk's 2010 application for amendments to the site plan were minor, such that it did not constitute a new application.
In a different land use context, the time of decision rule, or as it is now known, the time of application rule, determines which municipal ordinances apply to a development depending on the time of enactment of the ordinance and the date of application, or as it was prior to May 2011, the date of a board's decision. See Cox & Koenig, Zoning & Land Use Administration 669-75 (2013). "If the planning board requires any substantial amendment in the layout of improvements proposed by the developer that have been the subject of a hearing, an amended application shall be submitted and proceeded upon, as in the case of the original application for development." N.J.S.A. 40:55D-48(b). We have found that ordinances enacted between the initial application and an amended application should have applied because a developer's "amended" application was actually an entirely different application as it included an additional twenty-eight acres. Lake Shore Estates, Inc. v. Denville Twp. Planning Bd., 255 N.J. Super. 580, 592 (App. Div. 1991), aff'd o.b., 127 N.J. 394 (1992). In contrast, we did not find that an amended application was a "substantially new application" even though the discovery that a public road was actually a private one necessitated a complete reconfiguring of a subdivision. Schmidhausler v. Planning Bd. of Lake Como, 408 N.J. Super. 1, 11 (App. Div. 2009). The essence of the amended site plan application remained the same because the focus of the project, a three-lot subdivision, had not changed. Ibid.
Boardwalk's 2010 application redesigns the basement area, upgrades and expands decks/balconies, upgrades and improves the façade of a wing, and revises the phasing plan. Nonetheless, the focus of the converted development after that amended application was the construction of residences on Parcel 1. Thus Boardwalk's 2010 application did not include changes substantial enough to constitute a new application.
V
Plaintiff claims that Gorohoff's statement to the press that "[a]ny way that you look at it, Absecon will certainly benefit from the project," was "brazen[]" and evidence of "a clear bias on Chairman Gorohoff's part toward granting Boardwalk's application."
In fact, earlier in the newspaper article, Gorohoff was quoted as saying that the Planning Board had to analyze whether Boardwalk met the requirements for approval based on the evidence. Therefore, Gorohoff's comments about the benefit to the community did not require that he recuse himself from the hearings.
VI
We agree with Judge Littlefield's conclusion that the Planning Board's decision was not arbitrary, capricious, or unreasonable. See New Brunswick Tel. Co., supra, 160 N.J. at 14; Urban, supra, 238 N.J. Super. at 111. Plaintiffs have not met their burden of overcoming the presumption of validity and demonstrating the unreasonableness of the Planning Board's action. See Toll Bros., Inc., supra, 194 N.J. at 256.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION