On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
King, Dreier and Brochin. The opinion of the court was delivered by Brochin, J.A.D.
The primary issue in this case is whether a "lessee" under a perpetual "lease" has standing to apply to a municipal planning board for zoning variances and site plan approval for construction of a new building on the leased site. Under the facts of this case, we hold that he does have standing and that the granting of the variances and site plan approval was within the board's discretion. But we remand the case for trial to determine whether provisions of the lease prohibit the lessee's proposed construction or use of the new structure.
Until a fire ravaged the upper portions of the 100-year-old amusement pier in Long Branch, New Jersey, the 178-foot wide wood and concrete pier extended approximately 1000 feet eastward from the boardwalk into the Atlantic Ocean. All of the buildings on the pier were destroyed by the fire, and what remained of the pier was weakened, probably beyond salvaging.
Before the fire, several of the buildings housed amusement-area activities. In a portion of one of those buildings, defendant David Bassinder and two partners operated Scotty's Long Branch Arcade. The arcade, which shared a building with two other tenants, offered coin-operated games, various vending machines and, according to defendant, food services.
Plaintiff Ric-Cic Co., a partnership, owns the fee title and the riparian rights to the land on which the pier was built. Scotty's Long Branch Arcade occupied its premises pursuant to two leases from Ric-Cic Co. to Mr. Bassinder and his two partners. The leases cover adjacent areas and, except for the space described, are substantially identical in their terms. Each grants the "tenant" a term "of Ninety-Nine (99) years, which term shall be renewed in perpetuity." The "rent" which the "tenant" promises to pay under the two leases totals $375,000. Of that sum, $75,000 was a "deposit" paid concurrently with the execution of the leases and the remaining $300,000, secured by a "leasehold mortgage," was to be paid in equal yearly installments over twenty-five years, with eight percent annual interest. The amount of "rent" is described as "a net-net figure to the landlord" and each of the leases provides that "the purchasers shall be responsible for all maintenance and all other attendant taxes and other charges relating to the property."
Except for the perpetual duration of the leases and the terms of payment of the "rent," the provisions are those typically found in conventional leases. These provisions prohibit any "alterations, additions or improvements . . . without the written consent of the Landlord." They limit defendant to using its space solely for an "arcade" and for no other purpose. They permit the landlord to terminate the lease without compensation to the tenant upon a governmental taking by eminent domain or upon the occurrence of various defaults.
Defendant Bassinder, who acquired his former partners' interests, claimed that the leases granted him ownership in fee simple of the space where Scotty's Long Branch Arcade had stood, and that he was therefore a "developer" of the property within the meaning of N.J.S.A. 40:55D-4 who had standing as an "applicant" to submit an "application for development" within the meaning of N.J.S.A. 40:55D-3. In that role, he applied to the Long Branch Planning Board for variances and preliminary site plan approval to raze the remnants of the
portion of the pier on which the arcade had stood and, on new pilings, to construct a new two-story building, with an arcade on the first floor and a restaurant on the second, in the "footprint" of the space formerly occupied by Scotty's Long Branch Arcade.
Plaintiff Ric-Cic Co. opposed Mr. Bassinder's application. (It hopes to build condominium apartments on its adjacent property.) Ric-Cic Co. argued to the planning board that since Mr. Bassinder was merely a lessee, he had no standing to apply for variances and site plan approval. But the Board disagreed and granted him preliminary site plan approval and variances dispensing with an on-site loading zone and parking facilities, side yard setbacks, and a limitation on maximum building height. The board found that the variances were necessary because the site consisted of a small portion of a pier extending into the ocean, that denying the requested approvals would cause hardship within the meaning of N.J.S.A. 40:55D-70c, and that granting them would have no adverse effects.
Ric-Cic Co. then commenced a Law Division action against Mr. Bassinder, the City of Long Branch, and the Long Branch Planning Board. The action combined a proceeding in lieu of prerogative writs with a suit for an injunction and damages against defendant Bassinder. Ric-Cic Co.'s complaint alleged that Mr. Bassinder lacked standing before the planning board; that the board's grant of the variances was invalid because its findings were unsupported by the evidence; that the board's findings of fact were inadequate; that the leases prohibited use of the premises for any purpose other than for an "arcade"; that the site plan encompassed an area larger than that included in the leases; that N.J.S.A. 46:8-7 had terminated the leases as the result of the destruction of the leased premises; and that Mr. Bassinder did not control the loading area upon which the site plan approval was premised. The complaint also asserted that construction of the proposed restaurant would constitute an anticipatory breach of the leases and that the actions which
Mr. Bassinder had already taken were a present material breach.
Both plaintiff Ric-Cic Co. and defendant Bassinder moved for summary judgment. After discovery and a hearing, the Law Division judge granted defendant's motion for summary judgment, denied plaintiff's, and dismissed all of the counts of the complaint. He ruled that Mr. Bassinder had standing to apply for the variances and site plan approval, his proofs were sufficient and his applications were properly granted; that the leases did not preclude his proposed use of the property because the term "arcade" connotes eating facilities, and food service operations were conducted there before the fire; and that the fire did not terminate the leases. After the court's decision, the City of Long Branch and the Long Branch Planning Board moved for summary judgment, their motions were also granted, and the complaint was dismissed against them as well.
On appeal, plaintiff Ric-Cic Co. argues that the trial court's grant of summary judgment was erroneous because each of its rulings either misconstrued the law or ...