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Gregory v. Borough of Avalon

March 16, 2007

THEODORE GREGORY, WHITEBRIER BEACH CLUB, INC., AND ANTHONY ZURAWSKI, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF AVALON, BOROUGH OF AVALON PLANNING/ZONING BOARD AND DILBET, INC., T/A WINDRIFT HOTEL/RESORT, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-415-04.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 4, 2006

Before Judges Skillman, Holston, Jr. and Grall.

This appeal involves the appropriateness of an enlargement of time for bringing an action in lieu of prerogative writs to challenge resolutions of a municipal governing body that are closely related to a subsequent resolution of the zoning/ planning board that was challenged in a timely manner in the same action.

Defendant Dilbet, Inc., is the owner of a beachfront motel called the Windrift, located between 79th and 80th Streets in Avalon. The facility, which was constructed in 1966, currently has eighty-five motel rooms, a pool, a sundeck and a bar/restaurant located on the first floor.

On December 23, 2003, Dilbet applied to defendant Borough of Avalon Planning/Zoning Board for preliminary and final site plan approval for an expansion of its facility that would include construction of a second-floor, all-weather pavilion for wedding and conference use. At the same time, Dilbet also applied for variances from the setback requirements of the municipality's zoning and dune protection ordinances, conditional use variances, parking variances and design waivers.

In connection with Dilbet's application, Dilbet and Avalon conducted land surveys, which revealed that some of the Windrift's parking spaces encroached upon the municipality's street right-of-ways and that some portion of the Windrift encroached on dunes owned by the municipality. Specifically, the surveys showed that the roof eave of the restaurant and bar overhung municipal property, a wall of a separate building containing a restroom encroached on municipal property, and a pedestrian sidewalk, certain water and sewer lines, a seasonal beach stand and an identification sign were constructed on municipal property.

Before the Board heard Dilbet's application, the Avalon governing body adopted a resolution on January 28, 2004, authorizing the Mayor to enter into an agreement that would allow Dilbet to continue using the parking spaces that encroach upon the municipality's right-of-ways. The resolution stated that Dilbet had agreed to maintain the parts of the right-of-ways utilized by cars that park at the Windrift, to indemnify Avalon for any claims arising from any unsafe condition in these parts of the right-of-ways, and to obtain insurance coverage for the municipality's potential liability for such claims.

On February 25, 2004, the governing body adopted another resolution authorizing the Mayor to enter into an agreement that would grant Dilbet a license under which the roof eave of the restaurant and bar, the wall of the restroom building, a portion of the pedestrian sidewalk and the water and sewer lines could remain on the municipality's property. The agreement also required Dilbet to remove the beach stand, the identification sign and a portion of the sidewalk, dedicate other portions of the sidewalk for public use and make the restroom building available for public use on a seasonal basis. In addition, Dilbet agreed to provide insurance and indemnify Avalon for any liability arising from the encroachments upon its property.

The Mayor executed the agreement licensing Windrift's dune encroachments (the "dune agreement") on February 25, 2004, and executed the agreement allowing the continued use of the parking spaces encroaching upon the street right-of-ways (the "parking agreement") on April 6, 2004.

On that same day, the Board began the hearing on Dilbet's application for approval of the site plan and associated bulk variances for the Windrift's proposed expansion. In its presentation before the Board, Dilbet relied upon the parking and dune agreements.

At the conclusion of the hearing, the Board voted to approve Dilbet's application. On June 1, 2004, the Board considered a resolution memorializing the approval. However, counsel for the Board and Dilbet subsequently noted several minor errors in the memorializing resolution. Consequently, the ...


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