On appeal from the Superior Court, Law Division, Ocean County.
Morton I. Greenberg and Long. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
This case comes on before this court on appeal from orders for partial summary judgment and final judgment dismissing plaintiffs' action seeking to set aside a use variance (N.J.S.A. 40:55D-70(d)) granted to defendant Robert Monetti by defendant Board of Adjustment of the Township of Berkeley. The matter originated when Monetti filed an application for a variance to construct 20 condominium units in the Township of Berkeley. A variance was required as the property was zoned for single family homes on 5,000 square feet lots which would permit the construction of seven single family dwellings. Prior to the first hearing on the application, Monetti reduced his proposal to 18 units to be built in four buildings.
At the hearings on the application the evidence showed the property to be a 35,000 square feet tract on a barrier island near a waterway called the "bay." The parcel abuts Island Beach State Park and is the site of an inoperative sewerage treatment plant. The structures remaining from the sewerage operation include a one story brick building, a 10 feet by 12 feet by 14 feet concrete "degritter" and a 70 feet by 60 feet concrete sewerage tank.
Defendant Monetti, an experienced builder-developer, purchased the land in 1984 from the Berkeley Sewerage Authority for $276,000. The authority had set a minimum price for the property of $275,000. Prior to the purchase Monetti did not have the property appraised but he was aware of the zoning and acquired the property with the intent to seek a variance.
In fact, Monetti filed his application even before he closed on the parcel.
Monetti called Ronald Cebrick, an architect, and George Lissenden, an engineer, as witnesses. Cebrick and Lissenden described the proposed architecture and landscaping of the project with Cebrick emphasizing how the units were designed, because of the "uniqueness" of the site, to maximize the view of Island Beach State Park and the bay. Cebrick also testified that by placing the units into four separate buildings open spaces would be maintained in the development.
Monetti also called a planning expert, John Maczuga, as a witness. Maczuga considered the property unique because of its proximity to the park. Further, he indicated that its view of the bay was one of the "prettiest" in the entire area. Maczuga believed that condominium development would not substantially impair the intent of the zoning plan or master plan of Berkeley Township. He noted that "[t]he bulk of the existing development along the park frontage and along the ocean front is also intense" and the surrounding area includes a variety of uses in addition to single family dwellings. Specifically, he said there were at least seven condominium projects in the area, several of which received zoning approval from the board of adjustment. Maczuga believed the project would not create any parking problems. Maczuga was so enthusiastic about the property that, in his opinion, because of its finite character and unique features more people should be allowed to use it than would be accommodated by limiting it to single family development.
Monetti testified at length, focusing on the costs of development and potential selling price of the proposed units as compared with the costs and selling price for single family dwellings. Monetti calculated that the cost for development of the parcel into lots for single family dwellings would be $60,000 per lot, with the principal items being the acquisition cost of $276,000 and the $100,000 to $120,000 required to clear the lots of the remains of the sewerage plant. He testified that it would
cost $150,000 to build a high quality house, a calculation assuming a $75 a square foot construction cost. Accordingly, he would have to sell single family homes on the parcel for $250,000 to $260,000 to earn a profit. Monetti believed that houses would not sell in the area at that price and consequently the profit in constructing such homes would be meager.
Monetti saw a far more favorable picture when he contemplated building condominiums. He thought that the construction costs for a condominium project of a quality comparable to the single family home development he described would be between $50 and $60 a square foot. He concluded the condominiums could be sold for around $175,000.
Monetti also produced Arthur Williamson, Jr., a real estate expert, as a witness. Williamson confirmed that there were varied uses which included single family dwellings in the area surrounding the parcel. He also testified that the annual turnover rate, three per cent, for single family houses in the area was lower than normal and that there was a lack of resort residential housing in the area. He attributed the lack of turnover to a shortage of available houses rather than an absence of potential buyers. Part of the housing shortage was attributable to conversion of summer housing into year-round housing. Williamson indicated that because of demographic shifts there is now an increased demand for "more luxury type of townhouses in the resort area." In Williamson's view, development of the property for condominiums would not tax existing municipal services but would enhance the value of nearby properties. Williamson admitted, however, that a benefit in value to the surrounding properties would also result from a single family dwelling project, ...