February 27, 2007
JAMES YANUCIL INDIVIDUALLY AND AS PRESIDENT OF LJ3, INC. AND LJ3, INC. D/B/A FRIENDLY'S OF VOORHEES, PLAINTIFF-RESPONDENT,
VOORHEES TOWNSHIP, VOORHEES TOWNSHIP PLANNING BOARD, THE INDIVIDUAL MEMBERS OF THESE PUBLIC BODIES, STUART PLATT, ESQ. AS SOLICITOR FOR THE PLANNING BOARD, STUART PLATT INDIVIDUALLY, MAYOR HARRY A. PLATT, AS MAYOR AND HARRY A. PLATT INDIVIDUALLY, DEFENDANTS-APPELLANTS.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4947-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 6, 2007
Before Judges Skillman, Lisa and Grall.
This is an appeal from a final judgment of the Law Division which determined that plaintiff had fully complied with the conditions regarding building color attached to the approval by defendant Voorhees Township Planning Board of a site plan application for a proposed Friendly's Restaurant.
The site of the proposed restaurant was an existing shopping center called the Ritz Center. The Ritz Center includes a strip of retail shops, a movie theater and an Applebee's Restaurant. A restaurant is a conforming use within the zoning district. The only variance required for the proposed restaurant building was a height variance, which was granted and is not in issue on this appeal.
Plaintiff's site plan application was accompanied by an architectural rendering that showed the appearance of the proposed Friendly's Restaurant. Before the hearing on the application, the secretary to the Board sent plaintiff's consultant a letter, which stated that "[a]s a result of our meeting February 12, 2003, Township representatives did not accept your alternate exterior scheme for the proposed Friendly's restaurant because it was not compatible to the existing Ritz Center."
At the hearing before the Board, plaintiff gave the following testimony regarding the color of the proposed Friendly's restaurant:
[T]he materials is [sic] going to be the --what is it --
[Plaintiff]: -- Dryvit, to match the --to come close to matching the color of the center. It won't be a bright, it will be a cream color where the gables are, and then this color here, with brick into the front.
The Board's resolution granting plaintiff's application included as a condition of the site plan approval that:
The architectural elevations and colors of the building, roof line and canopies shall be as depicted on the color architectural elevations [submitted in support of the application.]
The resolution also stated that the site plan approval was "subject . . . to the testimony, representations and stipulations of the applicant, its attorney and witnesses at the time of the hearing[.]" In addition, the resolution stated:
The applicant has submitted certain plans and documents which were accepted by the Planning Board as part of its application and further made certain representations and provided testimony at the time of the public hearing, all of which have been relied upon by the Planning Board in making its determination.
After construction of the restaurant was completed, Voorhees refused to issue a certificate of occupancy on the ground that the color of the restaurant did not conform with the color shown on the architectural rendering. By letters from his attorney dated May 12 and 19, 2004, plaintiff agreed to repaint the restaurant to satisfy Voorhees' objections. The second letter noted that the proposed repainting would be subject to the approval of "Friendly's home office," as franchisor of plaintiff's restaurant. Based on plaintiff's representation that the restaurant would be repainted, Voorhees issued a temporary certificate of occupancy.
However, the franchisor of the Friendly's Restaurant subsequently refused to approve the color plaintiff proposed to repaint the restaurant to satisfy Voorhees' objections. When Voorhees was advised of this refusal and that plaintiff therefore would not repaint the building, it revoked plaintiff's certificate of occupancy and ordered him to cease operation of the restaurant.
Plaintiff then brought this action in lieu of prerogative writs seeking a declaration that it had complied with the condition of the site plan approval regarding the color of the restaurant. The matter was brought before the trial court by order to show cause. After several adjournments occasioned by efforts to settle the case, the court heard argument on two occasions and subsequently visited the site in the presence of counsel.
On August 22, 2005, the trial court issued a written decision which concluded that plaintiff's restaurant conforms with the condition of the site plan approval regarding the color of the building. The court's decision includes the following findings:
(1) Voorhees Township Planning Board Resolution No. 03-027 is ambiguous at best because it speaks to testimony and representations on one hand and the submitted elevations on the other;
(2) In testimony at the Board hearing, James Yanucil indicates, in response to a request, that he will make the darker color (exhibited on the elevations) lighter (i.e. cream). There was no objection from the Board;
(3) The non-cream paint that is currently on the building in question, and NOT challenged, is not a cream color nor is it the color represented on the elevations which are relied upon by the Defendant;
(4) Neither the Voorhees Twp. Planning Board nor the Township Code Official (or any Township official for that matter) ever presented James Yanucil with a color chip or paint formula that could be followed in composition for application to the building;
(5) The former Mayor, many weeks subsequent to the Planning Board's approval, and a short time before opening, visited the site and advised James Yanucil that the color scheme of the building was unsatisfactory because it did not match the color of the Ritz Shopping Center, which is located hundreds of feet across the Ritz parcel;
(6) The Applicant's principal, James Yanucil, stood ready, willing and able to color the DRYVIT siding to whatever color Voorhees Township requested, consistent with the Franchisor's agreement. As noted, no specific instruction was ever directed to or received by James Yanucil other than general references to a color which matched the color of the Ritz Shopping Center, which color had been subject to nine (9) years of weathering;
(7) The Court, in the presence of counsel, visited the site on Thursday, August 18th, 2005 and noted that the building in question is partially constructed with red brick and that at a level equal in height to the brick construction the DRYVIT siding has a color, not represented in the elevations, that is comparative to that of the red brick. In addition, the cream color on the building, which is less than a year old, is slightly brighter and has a bit more yellow in it than the color of the Ritz Center, which is approximately 200 yards distance from the Friendly's. However, to the viewer's eye, the colors are reasonably comparable;
The decision was memorialized by an order entered on September 26, 2005.
On appeal, the Board presents the following arguments:
I. THERE IS SUBSTANTIAL AND CREDIBLE EVIDENCE IN THE RECORD TO SUPPORT THE FINDING BY VOORHEES TOWNSHIP THAT THE PLAINTIFFS DID NOT COMPLY WITH THE CONDITION OF APRPOVAL REGARDING THE EXTERIOR COLOR OF THE FRIENDLY'S RESTAURANT.
II. THE TRIAL COURT'S FINDING THAT THE PLAINTIFFS HAD SATISFIED THE COLOR CONDITION OF THE PLANNING BOARD APPROVAL WAS ARBITRARY AND CAPRICIOUS.
We reject these arguments and affirm the final judgment of the Law Division substantially for the reasons set forth in Judge Vogelson's August 22, 2005 written decision.
In addition, we note that the Voorhees governing body has not adopted an ordinance that undertakes to confer authority upon the Planning Board to condition the grant of site plan approval upon an applicant's satisfaction of aesthetic standards such as the color of a proposed building. In Morris County Fair Housing Council v. Boonton Township, 230 N.J. Super. 345, 357 (App. Div. 1989), we held that "[a] planning board cannot deny an application for site plan approval based on architectural considerations if the application meets the standards set forth in the site plan ordinance." See also Sartoga v. Borough of W. Paterson, 346 N.J. Super. 569, 581 (App. Div.), certif. denied, 172 N.J. 357 (2002) ("[A] planning board's authority in reviewing a site plan application is limited to determining whether the plan conforms with the municipality's zoning and site plan ordinances."); Sheston Oil Co. v. Borough of Avalon Planning Bd., 214 N.J. Super. 593, 598-99 (App. Div.), certif. denied, 107 N.J. 134 (1987) (invalidating a condition on preliminary site approval that required "aesthetic compliance with the neighborhood."). We have no need on this appeal to decide whether a planning board may condition site plan approval upon a property owner's agreement to paint a proposed building a particular color because, even assuming the validity of this condition attached to the Board's approval of plaintiff's application, there is substantial evidence to support the trial court's finding that the color of plaintiff's Friendly's Restaurant is "reasonably comparable" to the color of the Ritz shopping center located approximately 200 yards away.
© 1992-2007 VersusLaw Inc.