On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-417-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Lyons.
Plaintiff, Kevin Chambers, appeals from a January 29, 2008, final judgment of the Law Division dismissing his complaint in lieu of prerogative writs. Plaintiff's complaint had challenged the decision of defendant, Zoning Board of Adjustment of Neptune Township (the Board), granting relief to defendant, 18 Atlantic, LLC. We affirm.
18 Atlantic, LLC is the owner of 18 Atlantic Avenue, Block 27, Lot 383 in Ocean Grove, New Jersey. Situated on this property is a vacant twenty-two-room*fn1 hotel located in the Historic District Oceanfront Zone (HD-O Zone). The HD-O Zone "recognizes the character and historic land use pattern of the oceanfront blocks in the Ocean Grove portion of the Township. . . ." It was designed to "protect, preserve and perpetuate the historical framework of Ocean Grove." Single-family homes, bed and breakfasts, and historic hotels are permitted in the HD-O Zone. Multi-family homes are not a permitted use. Moreover, the Township's Master Plan, when discussing the HD-O Zone, states "[t]he conversion of additional transient residential uses to multi-family uses should be prohibited throughout Ocean Grove and particularly in the densely developed Historic District Oceanfront District." Despite this language, the Plan does allow for exceptions, stating "[t]his plan does recognize that unique circumstances may exist along . . . prominent avenues where the preservation and adaptive reuse of a large historic structure is dependent on a mix of uses not envisioned in this plan."
The main structure on Lot 383 is the hotel, a "conditional" use pursuant to the zoning ordinance. The building ranges from three to four stories in height and there is significant fire damage to the hotel, which necessitates a new foundation.
Defendant sought to convert the hotel into four condominium units. However, because multi-family homes are not a permitted use in the HD-O Zone, defendant applied to the Board for variances pursuant to N.J.S.A. 40:55D-70(d) ((d) variances) and N.J.S.A. 40:55D-70(c) ((c) variances), design waivers and site plan approval. Defendant's application, filed on June 15, 2006, proposed to renovate the existing building, which would include some demolition. The plans included new siding, exterior construction, including additional porches, and construction on the fourth level.
The Board scheduled a hearing on defendant's variance applications for July 5, 2006, and defendant provided notice of the hearing to all property owners within two hundred feet of the hotel. The notice identified the property in question, gave the time and location of the hearing, and stated, in pertinent part, that defendant applied: for a use variance to convert a 22 room hotel into 4 dwelling units with bulk variances as to existing conditions for frontage, width, depth to curb, and side yard setback and other setbacks if applicable, all under minimum, together with site plan approval and such other variances and waivers as shall be required.
The Board held its first hearing on defendant's application on July 5, 2006. However, because Ocean Grove is on the National Register as a historic district, the preservation of buildings and structures in the community is overseen by the Historic Preservation Committee (HPC). Because defendant's proposed renovation involved the demolition of portions of the existing structures, the Board determined that the application could not proceed without the HPC's approval. As such, the Board adjourned the hearing pending defendant's application to the HPC. The HPC approved defendant's proposed renovations on September 12, 2006.
The Board met again on October 11, 2006. At that hearing, defendant presented Mark A. Pavliv, an architect, to discuss the proposed project. Pavliv explained that there was extensive fire damage to the hotel and the building was currently an abandoned "eyesore." He stated that the proposed plan called for demolishing part of the structure and converting the remainder into four condominium units, with a unit on each floor. The bungalow and the garage would be razed and the foundation would also have to be reconstructed in order to support the building. He explained that, while the building was a prime candidate for demolition, defendant's plan called for preserving seventy-five percent of the structure. He also noted that converting the structure into a single-family home would call for complete demolition.
Defendant also presented the testimony of Andrew Janiw, a professional planner. Janiw stated that the proposed plan "contemplates bringing [the structure] into more of the character of the neighborhood. . . ." As such, Janiw opined that the project was "very much on point to the preservation goals spelled out in your master plan." He went on to say: "It's certainly in keeping with the characteristics of the neighborhood and certainly a superior design in term of what's there now and what can be constructed." When the Board questioned him on the plan's impact on the community's population density, Janiw stated "[e]ven if it were 11 hotel units, at some point you can expect on a summer weekend full occupancy potentially of two people per unit of 22 people within those dwelling units," resulting in many more people then a condominium building would ever generate. He later stated "[n]o matter how you cut it, it's a reduction - the intent here is to reduce the intensity of use."
After presenting this testimony, defendant decided to reduce the number of condominium units from four to three. After being informed of this change, the Board voted on and approved the variance applications. Specifically, the Board granted d(1), d(2) and d(3) variances, as well as the required design waivers and bulk variances.
The Board memorialized its findings on December 11, 2006, stating that the proposed condominium units would "achieve a desirable visual environment" pursuant to the "Burbridge*fn2 case," promote historic conservation and establish appropriate population densities. The Board also found that the renovated structure would show "good civic design" and there would be "no impact on the surrounding uses and all conditions on the property are pre-existing."
On January 23, 2007, plaintiff filed a complaint in lieu of prerogative writs against defendant and the Board, claiming defendant failed to present adequate proofs to warrant the Board granting the variances. 18 Atlantic, LLC filed an answer on February 22, 2007, and the Board filed an answer on March 29, 2007.
The trial judge conducted a bench trial on December 4, 2007. In a written opinion, he found that the Board erred when it relied on Burbridge v. Mine Hill Twp., supra, 117 N.J. 376 in finding that the "desirable visual environment" created by renovation warranted the grant of the (d) variances. The trial judge explained that, pursuant to Burbridge, "[a]lthough the general purposes of the zoning law include aesthetics, it is an open question whether aesthetics alone . . . can form the basis of a special reason justifying a variance to expand a pre-existing nonconforming use." Id. at 387. The trial judge noted that the Burbridge Court held when a "new" nonconforming use is the subject of the variance, "ambience alone can seldom be a proper basis for special reasons." Id. at 392. Because defendant is not seeking to expand upon a pre-existing nonconforming use, the trial judge held that, under Burbridge, they "must demonstrate that the proposed use entails more than 'mere beautification' of the present site in order to satisfy special reasons for purposes of securing a use variance."
Nonetheless, the trial judge affirmed the Board's actions, finding that defendant had presented enough evidence, in addition to the improved visual aesthetic of the building, to warrant the variances. This appeal ensued.
On appeal, plaintiff presents the following arguments for our consideration:
THE TRIAL COURT ERRED IN NOT FINDING THAT THE APPLICANT FAILED TO PROVE AND THE BOARD FAILED TO FIND THAT THE GRANT OF THE USE VARIANCE IS NOT INCONSISTENT WITH THE INTENT AND PURPOSE OF THE MASTER PLAN AND ZONING ORDINANCE WHERE THE USE VARIANCE CONTRADICTS THE PURPOSE OF THE LOCAL ZONING PLAN AND MASTER PLAN AND CONSTITUTES REZONING AND/OR AMOUNTS TO SPOT ZONING AND THE TRIAL COURT IMPROPERLY FOUND THAT THE MASTER PLAN'S PROVISION FOR USES INCOMPATIBLE WITH THE ESTABLISHED ZONING WAS APPLICABLE.
1. The Board Did Not Have Authority To Grant The Use Variance And To Do So Constitutes ...