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Chambers v. Neiffer


February 3, 2009


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5608-06.

Per curiam.


Argued January 14, 2009

Before Judges Payne and Lyons.

Plaintiff, Kevin Chambers, appeals from a March 3, 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 defendants, Robert Neiffer, Ronald Rudolph, and Heinz Weck. We affirm.

Defendants are the owners*fn1 of 27 Surf Avenue, Block 27, Lots 370, 372 and 374 in Ocean Grove, New Jersey. Situated on this property is a vacant forty-room 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 27 Surf Avenue is the hotel, a "conditional" use pursuant to the zoning ordinance. The structure is built in an "L" shape and ranges from three to four stories in height. A one-story bungalow and a garage are also located on the property.

Defendants sought to convert the hotel into eleven 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. Defendants' application, filed on November 29, 2005, proposed to renovate the existing building, which would include some demolition.

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). Defendants' proposed renovation involved the demolition of portions of the existing structures so defendants also submitted their proposal to the HPC, requesting a permit for partial demolition and a certification of appropriateness. The HPC found "that the hotel is a significant structure and historically important within Ocean Grove and . . . contributes to the streetscape of the surrounding area." The HPC considered "the intent of the Applicant to preserve significant portions of the hotel and bungalow" and approved defendants' applications May 16, 2006, and December 12, 2006, respectively.

The Board scheduled a hearing on defendants' variance applications for June 21, 2006. During that hearing, defendants proposed to restore the historic character of the existing hotel by converting it into eleven condominium units with a uniform height of four stories. Defendants also sought to create living space in the basement of the building.

Defendants presented Stephen J. Carlidge, A.I.A., the architect for the proposed project, to describe the plan for the renovated structure. Defendants had acquired a turn of the century photograph of the hotel, and Carlidge used this photograph to aid him in his explanation of the renovations. He made it clear that the goal of the project was to make the building resemble what it had looked like at the time that photograph was taken. To do this, defendants would need to demolish part of the hotel, as well as raze the bungalow and the garage. The remaining portion of the hotel would then be expanded, increasing the square footage of the building from 13,357 square feet to 16,967 square feet. The existing exterior walls would remain in place, so the structure would not be completely demolished.

Based on the comments received from the public with respect to the variance applications, the Board "indicated that eleven (11) units is too intense of a use and would result in too great a density." Defendants set about to revise their proposal, reducing the number of condominium units to nine.

The Board met again on September 20, 2006. At that hearing, defendants presented their revised, nine-unit plan, which eliminated the basement living space. Defendants' professional planner, Andrew Janiw, testified that the proposed use was in keeping with the goal of the Township's zoning policies. He stated: with respect to the ordinance and the master plan, the ordinance is receptive to these types of historic restorations, these types of historic reconstructions. It encourages keeping the fabric of the neighborhood intact, it encourages historic massing of properties. That's something we seek to promote. We do deviate from the ordinance's intent relative to multi-family housing, however, your own ordinance states there are exceptions here because the ordinance isn't perfect.

Janiw explained that, while the Township's Master Plan "doesn't encourage multi-family, there are exceptions to the rule and the exceptions that that leads you to are properties identical to what this application is all about." He based this opinion on the fact that the visual character of the building would be preserved under the proposed plan. Janiw further testified that "what's being proposed isn't outrageous in terms of what's existing in the neighborhood, what's recently been considered by this Board and what's within the fabric of the neighborhood." He concluded that "[i]t would have a much more beneficial impact on the neighborhood than returning it back to the hotel use."

With regard to the proposed renovation's impact on the neighboring properties and the community in general, Janiw noted that the condominiums would generate significantly less noise, traffic, and trash than an operational forty-room hotel.

The Board met again on October 4, 2006. They approved defendants' application for variances, granting the following: "uses variances d(1), d(5), d(6), bulk variances . . . , design waivers, . . . and preliminary and final site plan approval." On November 3, 2006, the Board memorialized their approval. The Board found:

At least four (4) purposes of the Municipal Land Use Act are advanced by this application. The project will create a desirable visual environment, there will be a conservation of a historic site and structure, appropriate population density is created including a significant decrease in the intensity of the hotel use and also good civic design is being achieved as the proposed use functions well in this particular neighborhood.

The Board further found "this project should have no adverse impact on the neighborhood since it represents the re-creation of what was there and is much less intense than the former hotel use."

On December 20, 2006, plaintiff filed a complaint in lieu of prerogative writs challenging the Board's grant of use variances, bulk variances, design waivers and final site plan approval. Defendants Neiffer, Rudolph and Weck filed an answer on February 13, 2007, and the Board filed an answer on March 29, 2007.

The trial judge held a bench trial on September 25, 2007, and entered an order affirming the action of the Board on March 3, 2008. This appeal ensued.

On appeal, plaintiff offers the following arguments*fn2 for our consideration:



A. The Board Of Adjustment Usurped The Authority Of The Township Committee





A zoning board's decision on a variance application may be set aside only when arbitrary, capricious, or unreasonable. Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002); New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 160 N.J. 1, 14 (1999); Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965). This standard comes from the recognition that local officials who are familiar with a community's characteristics and interests are best equipped to pass on variance applications. Kramer, supra, 45 N.J. at 296. Because of their knowledge of local conditions, boards must be allowed wide latitude in the exercise of their delegated discretion. Ibid. Therefore, "courts ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Zoning Bd. of Adj. of Borough of N. Caldwell, 160 N.J. 41, 58-59 (1999).

Board decisions are presumed valid and the party attacking them has the burden of proving otherwise. Cell S. of N.J., Inc., supra, 172 N.J. at 81. A court will not disturb a board's decision unless it finds a "clear abuse of discretion." Id. at 82.

Pursuant to these principles, we first address plaintiff's contention that the Board "usurped" the authority of the Township Committee by granting defendants' variances. Plaintiff bases this argument on the Township's Master Plan, claiming that "the grant of a use variance to permit a multi-family use in the HD-O District can [not] be reconciled with the provisions of Neptune's Master Plan and Zoning Ordinance." By granting the variances, plaintiff argues, the Board in effect rezoned the property in derogation of the municipality's intent to limit the HD-O zone to single family and hotel uses.

A board of adjustment "may not, in the guise of a variance proceeding, usurp the legislative power reserved to the governing body of the municipality to amend or revise the plan . . . ." Vidal v. Lisanti Foods, Inc., 292 N.J. Super. 555, 561 (App. Div. 1996) (internal quotations omitted). In Tp. of Dover v. Bd. of Adj. of Dover, 158 N.J. Super. 401, 411 (App. Div. 1978), we explained that the "dispositive considerations . . . which underlie the statutory allocation of function" between the municipal governing body and its administrative land use agencies include the governing body's "ultimate responsibility to establish, by the adoption of its zoning ordinances and amendments thereto, the essential land use character of the municipality." On the other hand, the "variance power" allocated to municipal land use agencies is intended only to "accommodate individual situations where relief from the applicable ordinance is warranted." Tp. of North Brunswick v. Zoning Bd. of Adj. of Tp. of North Brunswick, 378 N.J. Super. 485, 490 (App. Div.), certif. denied, 185 N.J. 266 (2005). The power to grant variances is so confined to "avoid the potential" which this power "might otherwise have for substantially affecting the essential land use scheme of the entire district itself and perhaps of the entire municipality as well." Tp. of Dover, supra, 158 N.J. Super. at 412. "The basic inquiry in each case must be whether the impact of the requested variance will be to substantially alter the character of the district as that character has been prescribed by the zoning ordinance." Id. at 412-13.

In this case, defendant's proposed plan will not substantially alter the character of the district. The Master Plan states, in pertinent part, that:

[a]ll use and bulk regulations applicable to the Historic District Oceanfront District are intended to protect, present, and perpetuate the historical framework of Ocean Grove. This framework includes single family residences, bed and breakfasts and historic hotels. The conversion of additional transient residential uses to multi-family uses should be prohibited in the densely developed Historic District Oceanfront District.

The Plan goes on to recognize that: unique circumstances may exist along Main Avenue or other 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. Such mix of uses may be appropriate, provided resultant development will not have a negative impact on the surrounding properties.

Thus, while the Master Plan clearly seeks to prohibit the development of multi-family homes in the HD-O zone, it also makes allowances for exceptions. The Plan states that all of its regulations are geared toward preserving the historic character of Ocean Grove. Carlidge, the architect, testified that "we are restoring this building to this historic profile." Janiw, defendant's planner, was adamant that "what the applicant seeks to do is restore [the structure] to its old grandeur . . . ." Moreover, the HPC found "that the hotel is a significant structure and historically important within Ocean Grove and . . . contributes to the streetscape of the surrounding area."

In light of the clear language of the Master Plan, which provides for exceptions to the use variances prohibiting multi-family buildings, and the expert testimony available in the record, the Board did not act in an arbitrary and capricious manner by granting defendants' variance requests. Converting the hotel into condominium units, and thereby preserving the historic nature of the building, is in compliance with the ultimate goal of the Master Plan, which is to preserve and perpetuate the historic character of the Township.

We next address plaintiff's contention that the Board erred in finding defendants presented adequate "special reasons" to warrant (d) variances. Because multi-family housing is specifically prohibited in the HD-O Zone, defendants' required variances pursuant to N.J.S.A. 40:55D-70(d), which provides, in pertinent part, that "[i]n particular cases for special reasons," a variance to allow departure from regulations may be granted to permit

1) a use or principal structure in a district restricted against such use or principal structure,

5) an increase in the permitted density as defined in section 3.1 of P.L.1975, c.291 (C.40:55D-4), except as applied to the required lot area for a lot or lots for detached one or two dwelling unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision or

(6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure.

To obtain such variances, an applicant must provide proof satisfying statutorily prescribed "positive" and "negative" criteria. Sica v. Board of Adj. of Twp. of Wall, 127 N.J. 152, 156 (1992).

"Generally, to satisfy the positive criteria, an applicant must prove that 'the use promotes the general welfare because the proposed site is particularly suitable for the proposed use.'" Smart SMR v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 323 (1998) (quoting Medici v. BPR Co., 107 N.J. 1, 4 (1987)). A use, such as a school or hospital, that is "inherently beneficial" or inherently serves "the public good" by its nature will provide special reasons to grant the variance, thus, presumptively satisfying the positive criteria. Ibid.; Kohl v. Mayor & Council of Borough of Fair Lawn, 50 N.J. 268, 279 (1967). If a proposed use is not inherently beneficial, "there must be a finding that the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought." Ibid.

The Municipal Land Use Law (MLUL) sets forth several purposes that may be advanced by a variance. These include the factors the Board considered in this case, namely:

e. To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment;

i. To promote a desirable visual environment through creative development techniques and good civic design and arrangement;

j. To promote the conservation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through improper use of land;

[N.J.S.A. 40:55D-2(e)(i) and (j).]

Plaintiff contends that none of these factors were, in fact, present in this case and as such, defendants did not provide sufficient "positive criteria," pursuant to N.J.S.A. 40:55D-70(d), to warrant the variances granted by the Board.

Specifically, plaintiff argues that the Board erred in considering the improved aesthetic appearance of the building. In Burbridge v. Mine Hill Twp., 117 N.J. 376, 387 (1990), the Supreme Court held that "[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." The Court went on to explain that 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.

Based on the Burbridge holding, it is questionable whether aesthetics alone may be enough to warrant a variance when an applicant seeks to change a structure to a nonconforming use. That said, Burbridge, however, does not forbid a board from considering aesthetics in a case such as this. The Court only held that it could not be the sole criterion for granting a variance. In this case, defendant demonstrated that the proposed use entails more than mere beautification of the present site, such as controlling the population density of the Township and preserving a historic structure. Therefore, the Board did not err in considering the improved appearance of the structure.

Plaintiff also contends that the expert testimony presented to the Board regarding the intensity of the use was misleading. Plaintiff explains that opening the building as a hotel would require defendants to significantly reduce the number of rooms available in the original hotel scheme in order to conform with current code requirements. As such, defendants never had the option of opening a forty-room hotel, and a nine-unit condominium building may not be a noticeable reduction at all.

Defendants, through expert testimony, illustrated that reducing the number of units in the hotel would decrease the population density of the zone, in keeping with the goals of the MLUL. N.J.S.A. 40:55D-2(e). Janiw testified:

[a]s a forty room hotel, I would give to you that the intensity of the use would be significantly greater in terms of number of residents, in terms of both foot and vehicle traffic, trash generation, noise generation, things like air condition units running, hours of operation, all those would be at a much more intense level than what's being proposed as a nine-unit condominium ownership.

Regarding parking availability, a major concern for the Board, Janiw testified "[s]trictly looking at what the alternatives are, I think that [what] we're proposing is probably one of the lesser demanding parking scenarios."

Clearly, the Board's determination that condominiums will result in a less intense use than a fully operational hotel is sound, especially when this logic is supported by expert testimony in the record. The fact that the hotel would most likely be run at a capacity of less than forty rooms does not render the Board's decision arbitrary and capricious.

Plaintiff also fails to consider defendants' desire to preserve the historic character of the building. The MLUL states that historic preservation is a "special reason" to grant a variance. N.J.S.A. 40:55D-2(j). Moreover, as discussed above, the Township's Master Plan emphasizes that maintaining the historic character of Ocean Grove is of paramount importance.

We hold, therefore, that defendants did present the Board with adequate "positive criteria" to grant the requested (d) variances. The Board did not consider the improved aesthetics of the structure in isolation when it granted the variances, but relied on the proposed plan's density reducing effects and the historic preservation of the building. As such, the Board did not act in an arbitrary or capricious manner.

We next address plaintiff's contention that defendants did not present adequate "negative criteria" to allow the Board to grant the requested variances. In order to acquire (d) variances, the negative criteria of N.J.S.A. 40:55D-70 must also be met. That is, the variance can be granted "without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70. In applying the principles from N.J.S.A. 40:55D-70(d), a court is required to utilize the Sica balancing test, and (1) "identify the public interest at stake," recognizing that "[s]ome uses are more compelling than others," (2) "identify the detrimental effect that will ensue from the grant of the variance," (3) if necessary, "reduce the detrimental effect by imposing reasonable conditions on the use," and (4) "weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good." Sica, supra, 127 N.J. at 165-66.

Here, defendants presented evidence that the variance could be granted without substantial detriment to the public good and it would not substantially impair the intent and purpose of the zone plan and zoning ordinance. Specifically, both Carlidge and Janiw testified that neighboring properties would not be affected and, in actuality, would benefit from the less intense use the condominiums would offer.

The Board found that defendants met the necessary quality of proof, explaining, "this project should have no adverse impact on the neighborhood since it represents the re-creation of what was there and is much less intense than the former hotel use." The Board noted that the conversion of the property into condominium units would reduce "noise, trash, vehicular traffic and pedestrian traffic." Moreover, "this property is particularly suited to the proposed use and the proposed use can co-exist with the surrounding uses." The Board based these conclusions on the testimony of Carlidge and Janiw.

Clearly, the Board's determination that defendant satisfied the "negative criteria" requirement was not arbitrary and capricious, but was based on facts present in the record. The proposed use will decrease population density and will not impact neighboring properties. Plaintiff's contention that the condominium use would not be less intense than hotel use because a renovated hotel would have less than forty rooms does not affect the soundness of the Board's reasoning. Therefore, the Board did not err in granting defendant the various (d) variances and we affirm.


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