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Chambers v. Neiffer

February 3, 2009

KEVIN CHAMBERS, PLAINTIFF-APPELLANT,
v.
ROBERT NEIFFER, RONALD RUDOLPH, HEINZ WECK AND ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF NEPTUNE, DEFENDANTS-RESPONDENTS.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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