On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3241-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Gilroy and Chambers.
Plaintiff 529 Waterfront Properties, LP, appeals from the February 22, 2008 order that dismissed its complaint in lieu of prerogative writs, challenging defendant Land Use Board of the Borough of Beach Haven's (Board) grant of site plan approval, together with a parking variance, to defendant Nugent Group, LLC (Nugent). We affirm.
Nugent is the contract purchaser of property known as 116 West Avenue, or Block 141, Lots 4 and 4.01, Beach Haven (the property). The property is located in the MC (Marine Commercial) zone and is occupied by the Boat House Restaurant. The Boat House operates without a retail consumption liquor license.
On June 12, 2006, Nugent filed an application with the Board for preliminary and final site plan approval, together with any variances as might be necessary, to operate a restaurant with a bar on the property. On August 7, 2006, following a hearing on the application, the Board granted site plan approval, together with a variance from the Borough's on-site parking regulations whereby sixty-seven on-site parking spaces are required and none is provided; on September 7, 2006, the Board adopted a memorializing resolution. On October 23, 2006, plaintiff filed its complaint in lieu of prerogative writs challenging the approvals granted by the Board. On February 22, 2008, the trial court entered an order, supported by a written decision, affirming the action of the Board and dismissing the complaint.
Over the years, the Boat House has been the subject of a number of land use applications before the Board. In 1996, the operator of the Boat House filed a land use application "requesting major site plan approval, with all variance and waivers requested and required, to allow the applicant to renovate the existing structure to allow relocation of part of the interior seating to the outside deck, and to add a roof over the outer deck." In a February 5, 1996 resolution approving the application, the Board granted, among other matters, "a variance for 27 parking spaces, where none are provided." At the time of the variance, one parking space was required for every 250 square feet of gross floor area. Additionally, the resolution noted the testimony of Anthony Baldino, the applicant's representative, who "testified that the restaurant will be operated from 4:00 p.m. to 10:30 p.m., and the fish market would be open from 9:00 a.m. until 11:00 p.m. in the evenings." Finally, it limited the Boat House's seating to "no more than 296 patrons."
In 1999, the Borough amended its Master Plan "[t]o encourage the expansion and improvement of existing business as well as attempt to attract new business uses into planned areas, especially adjacent to compatible use areas." Prior to 2002, all commercial uses in the MC zone were permitted, "provided that they [were] accessory to a marina." In 2002, the Borough amended its land use ordinance, deleting the accessory to a marina requirement, thereby allowing commercial uses to be located throughout the MC zone.
In 2006, Nugent sought to add a bar to the Boat House. At the time, Nugent owned another restaurant in the Borough named the Black Whale, which was situated in close proximity to the Boat House. The Black Whale seats 137 patrons and possesses a retail alcoholic beverage consumption license. On receipt of the necessary land use approvals and construction of a bar at the Boat House, Nugent intends to close the Black Whale and transfer its liquor license to the Boat House, extending the Boat House's hours of operation until 2:00 a.m., and redeveloping the Black Whale property into a "side by side condo."
On June 12, 2006, Nugent filed an application with the Board for approval of its site plan "for a minor interior improvement (construction of a bar)." In the application, Nugent stated that "there will be no change in the building's footprint, there will be no exterior work, there will be no changes which impact traffic, parking, lighting, drainage, access or egress or other planning considerations." As such, Nugent asserted that "no variance is required and none is requested." However, at that time, the Borough's parking requirements for a restaurant had changed from 1 space per 250 square feet of gross floor area, as it was during the 1996 resolution, to 1 space per 125 square feet. Accordingly, defendant Nugent requested that, in the event the Board deemed a variance necessary, it reserved the right to request one pursuant to N.J.S.A. 40:55D-70c.
At the August 7, 2006 hearing on the application, Nugent called four witnesses: Baldino, Robert Nugent (Mr. Nugent), Eric Magaziner (Magaziner), and Mark Schuster (Schuster). Baldino is now the president of the entity that owns the Boat House. Mr. Nugent and Magaziner are principals of Nugent, the operator of the Black Whale. Schuster is Nugent's planning expert.
Baldino explained that "there are 296 seats in [t]he Boat House" and "137 over at [t]he Black Whale." As to Nugent's intentions, Baldino stated:
The proposed plan for the [Boat House] would be to reduce the dining room seating from 296 down to 208, which represents about a 30% reduction,... [t]ake out 88 seats and the corresponding tables and they are going to add 30 seats to a [b]ar area. And then surrounding the bar there will be space that will accommodate another 58 standing patrons.
By eliminating [t]he Black Whale [r]estaurant and its [intensity] of use that that brings, the overall occupancy load for that one block area, would be... reduced from 433 seats down to 296. It would be a ...