On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
King, Shebell and Keefe. The opinion of the court was delivered by Keefe, J.A.D.
The issues presented on this appeal require us to address the zoning power of a municipality as it relates to federal and State regulation of navigable water and tidal land within the municipality.
Plaintiffs Frank A. and Anne M. Anfuso appeal from a Law Division judgment that affirmed the decision of defendant Board of Adjustment of the Borough of Oceanport (Board) to grant a use variance and several ancillary bulk variances to defendants Keith A. and Carol L. Seeley enabling the Seeleys to expand their marina, a prior conforming use. The judgment under review is affirmed in all respects except that part of the judgment that approved the Board's decision granting the Seeleys "other incidental" and unspecified variances required by them "to continue to utilize the premises presently operated as a marina."
The Seeleys are owners and operators of a marina known as "Oceanport Landing" located at the foot of River Street in the Borough of Oceanport (Borough). To the south, the marina is bordered by the Shrewsbury River (Branchport Creek) and to the east, by Bridge Creek. The marina is located in an R-3 residential zone. Although neither party has annexed the applicable zoning ordinance, there is no dispute that a marina is not
one of the permitted uses in the R-3 district. The marina is situated on two different lots, lot 16, block 61 and lot 18, block 1.
A brief history of the use made of the two lots presently owned by the Seeleys is necessary to an understanding of the litigation. The following facts are taken from extensive findings of fact made by the Board in its resolutions, which findings are supported by the testimony, and from the record itself where supplementation was found necessary.
In March or June 1983, the Seeleys purchased the marina from Mr. and Mrs. Harry Wilson. The Wilsons had, in turn, purchased the marina from Willis Woods in the 1960s. Woods had operated a marina on lot 16 consisting of a machine shop, a boat storage yard, boat slips and docks since 1928. Sometime in the 1950s, Woods built the existing structure on lot 18, and resided there.
During the time period in which the Wilsons owned the lots, a fire destroyed a building used for boat storage on lot 16. They then used the structure on lot 18, as an office in conjunction with marina operations. This history is important because when the Seeleys purchased the lots in 1983 they believed that the use of both lots as a marina was permitted and were assured by Borough officials that the marina, including both lots, was a nonconforming use that predated the Borough's first zoning ordinance enacted in 1954. Consequently, the Seeleys considered the marina to be "grandfathered in" without the need for a variance.
However, in 1984, after the Seeleys had constructed additional boat slips, two floating docks and increased the number of boats that had previously been stored on lot 18, they received a series of letters from the Borough zoning officer stating that because the Seeleys had "expanded" the marina use on lot 18, a variance would be required to continue such use. Evidently, plaintiffs Frank and Anne Anfuso, who reside directly across
Bridge Creek from the marina, were not pleased with the new facilities on lot 18 and so notified the Borough zoning official.
Thereafter, in December 1985, the Seeleys applied to the Oceanport Board of Adjustment for an interpretation pursuant to N.J.S.A. 40:55D-70a, inquiring whether their use of lot 18 for docking, boat storage and vehicle parking in conjunction with the operation of the marina constituted a pre-existing nonconforming use.*fn1 Following several hearings, the Board determined that the use of lot 18 was not "a pre-existing, non-conforming use" but, instead, constituted "an expansion" of a nonconforming use that required a variance. The Board permitted the Seeleys to continue the marina operations but directed them to apply for a variance within six months from the date the resolution was adopted.
Significantly, the Board declined to make any factual findings regarding the legality of the two docks jutting into the Shrewsbury River that had been installed on lot 18. The Board was of the opinion that the Legislature had preempted its jurisdiction with regard to the structures placed in the water. Presumably, the Board arrived at that conclusion following the Borough zoning officer's testimony that he had been advised by the municipal attorney that the municipality had no zoning authority over the waterways surrounding Seeleys' property.
Thereafter, the Seeleys applied to the Board for a use variance and several ancillary bulk variances in order to operate the marina on lot 18. Public hearings were conducted before the Board beginning in January 1986 and continuing through June 1987.
Keith Seeley testified that prior to purchasing the two adjacent lots he had spoken with the zoning officer and the Borough
administrator and had been assured that the marina, operated on both lots, was a pre-existing nonconforming use. He had also examined the municipal tax records and noted that both lots had been taxed as a commercial marina. Seeley also testified that, if his variance requests were granted, there would be no structural changes made to the property and, essentially, that the marina would operate as it had since he purchased it in 1983. At the time of the Board hearings, lot 18 included 75 boat slips offshore and was used to store approximately 150 to 175 boats in the off-season.
By this time the Seeleys had obtained all of the federal and State permits necessary for operation of the marina. Effective March 15, 1985, the United States Army Corps of Engineers issued a permit authorizing the construction of a new bulkhead, installation of an "L-shaped" timber pier and installation of two floating docks in the Shrewsbury River.*fn2
The Seeleys also secured a five-year license from the Tidelands Resource Council (TRC) of the State Department of Environmental Protection (DEP), Division of Coastal Resources on July 2, 1984. The license permitted the Seeleys to "use and maintain a proposed expansion of an existing marina facility in the Shrewsbury River, outshore of Lot 18, Block 1, on River Street in the Borough of Oceanport, Monmouth County, New Jersey situate[d] upon the lands of the State under water. . . ." Seeley testified that when he applied to the TRC for a riparian lease, the Borough and the Oceanport Planning Board were notified and received a detailed plan of the proposal. Evidently, neither the Borough nor the planning board objected to the application.
George Cosentino, Jr., a landscape architect, testified on behalf of the Seeleys. He maintained that a buffer of Japanese black pines, strategically placed on the lot, would adequately screen the marina from plaintiffs' property. Frank Anfuso later testified that he did not object to the use of the property as a marina per se. He simply did not like the view of the marina and the boats stored there from his property located across Bridge Creek.
John Haberstroh, a New Jersey licensed real estate broker, stated that he specialized in the sale of marinas and that the marina industry was economically and environmentally important to the State of New Jersey. He maintained that there was a State shortage of existing boat slips because there were at that time approximately 30,000 boat slips for 200,000 registered boats. Haberstroh also said that there were approximately 350 marinas in New Jersey and that the DEP encouraged the expansion of marina facilities. He maintained that in recent years the number of marinas had declined due to the proliferation of waterfront condominium development. In his opinion, the marina enhanced the value of the surrounding residential properties.
R. Lee Hobaugh, a New Jersey licensed professional planner also testified for the Seeleys. Hobaugh had reviewed several DEP and Coastal Area Facility Review Act (CAFRA) policy papers and stated that those documents evinced the State's policy to expand and improve existing marinas rather than to create new ones. Hobaugh asserted that only three percent of the State's remaining water-edge areas were suitable for water-dependent recreational uses. In addition, Hobaugh said that State policy encouraged restricting the residential redevelopment of sites currently or recently occupied by a water-dependent use. He also pointed out that the preservation of boat slips available to the public is encouraged to protect the public's common law right to use tidal waters for navigation.
Hobaugh maintained that the DEP has singled out marinas for special consideration because marinas attract tourists and serve the estimated 25% of New Jersey residents who go boating in the State's coastal waters. He also maintained that State policy favors water-edge marina development -- a use that is water-dependent, as opposed to a single-family residential use that is not. He concluded that, in his opinion, the application should be granted in all respects because marina operations are presently conducted at the site and because the granting of the application would not be a substantial detriment to the public good.
For their part, plaintiffs called John Cattanach, a real estate appraisal expert, in support of their position that the variance request should be denied. Essentially, Cattanach maintained that lot 18 could be successfully subdivided into four residential building lots. Without elaboration, he asserted that the construction of a pier had diminished the value of plaintiffs' property.
Robert Strong, a professional planner licensed in New Jersey, testified, contrary to the opinion of Seeleys' expert planner, that although "special reasons" may exist to satisfy the statutory positive criteria, these reasons were insufficient to overcome the negative aspects of the Seeleys' application. That is, Strong believed that the Marina constituted an intrusive commercial use of the property in an almost exclusively residential area. In his opinion, the marina generated additional and unwanted noise and traffic in the vicinity of the residential homes.
During the course of cross-examination, Strong agreed that the waters adjacent to Seeleys' property up to the mean high water mark were tidal waters and that State policy dictates that the State's citizens should have access to those waters. Although Strong conceded that the State has articulated a need for additional public marinas and boat slips, he believed that this "special reason" could not overcome the abrogation of the
Borough zone plan that the granting of the Seeleys' application would cause.
During the course of the Board hearings, several neighboring property owners testified in support of the variance request. They generally maintained that the marina was run efficiently and that they enjoyed viewing the boats located on the property and the convenience of a marina located in town.
On June 24, 1987, the Board voted unanimously to grant the Seeleys' use variance application. In its seven-page resolution of August 5, 1987 memorializing its decision to grant the use variance, the board found that: (1) State policy mandates that existing marinas should be "maintained by [sic] expanded in order to serve the general welfare by providing for the recreational use of the waterways of the State of New Jersey"; (2) neighboring property owners asserted that the marina operations did not negatively impact on the residential quality of the neighborhood; (3) applicants suffered a hardship because municipal representatives had erroneously advised them that the subject property could be used as a marina; (4) the site was particularly suited for use as a marina; and, (5) the relief requested by applicants could be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the municipal zone plan and zoning ordinance.
Following its decision to grant the use variance, public hearings were held regarding the request for various bulk variances attendant to the use variance and for site plan approval. Specifically, the Seeleys requested a variance from: (1) the municipal street-line setback ordinance (Section 68-13(B)); (2) the municipal natural waterline setback ordinance (Section 68-13(B)); (3) the requirement that a use not constructed within a completely enclosed building be surrounded by a fence or hedge (Section 68-15(B)); (4) the requirement that a building shall not be located within 200 feet of any boundary of a residential zone (Section 68-18(B)(2)); (5) the requirement that unenclosed recreational
facilities shall be screened and located not less than 200 feet from any residential zone boundary, except where greater distances are otherwise required (Section 68-18(B)(4)); (6) the requirement to provide off-street parking facilities (Section 68-18(C)); and, (7) any other variances that may be required to continue to utilize the building ...