October 20, 2009
RICHARD J. FIERAMOSCA, JR., AND KIM M. FIERAMOSCA, PLAINTIFFS-APPELLANTS,
BARNEGAT TOWNSHIP ZONING BOARD OF ADJUSTMENT AND FONTE, LLC, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1008-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 7, 2009
Before Judges Sapp-Peterson and Espinosa.
Richard and Kim Fieramosca brought an action in lieu of prerogative writs to challenge the decision of the Barnegat Township Zoning Board of Adjustment ("the Board") which granted approval to an application filed by Fonte, LLC ("Fonte" or "the applicant") for bulk and use variances and final site plan approval for a property neighboring theirs. The trial court dismissed their complaint with prejudice and they appeal from that order. We affirm.
The property in question is an irregularly shaped bay-front tract that has been unoccupied for many years, located just east of the Barnegat Township Municipal Dock in the C-M Zone (commercial marine zone). On the site are a two-story structure that was once a restaurant as well as a dwelling and a shed.
However, the buildings are in a state of such disrepair that the site has been described as an eyesore.
The applicant is the contract purchaser of the property.
The contract for $475,000 is conditioned upon a certificate of occupancy being granted for the structure proposed in the application to the Board. The Board approved a plan to demolish the former restaurant and shed and to renovate and/or demolish the existing two-story structure so that it may be occupied by a bait shop and restaurant on the first floor and a one-bedroom apartment on the second floor. To accommodate this plan, the applicant required a considerable number of bulk variances and waivers. In addition, a use variance was required because the proposed facility was determined to be a "take-out restaurant," which is not a permitted use in the C-M Zone under the zoning ordinance.
The applicant entered into negotiations to purchase the property owned by appellants to eliminate the need for many of the bulk variances sought before the board. However, negotiations ended because the appellants declined to accept the applicant's offer of $350,000.
The Board conducted public hearings on the application on April 10, June 12, September 11, November 29 and December 11, 2007. The Board's findings were set forth in detail in the resolution approving the application. The approval was subject to a number of conditions, including a requirement that the applicant "obtain a 'statement of no interest' from the Tidelands Commission to permit the use of the entire property as presented on plans" to the Board. The resolution explicitly stated, "All approvals are specifically contingent upon the applicant's demonstration of full ownership of all the land as proposed for development." The testimony and exhibits received by the Board are described in detail in the written opinion of Vincent J. Grasso, A.J.S.C. and need not be set forth here.
Judge Grasso concluded that the Board "based its decision and approval on competent and substantial evidence and that its actions were not arbitrary, capricious or unreasonable," and entered judgment on the merits in favor of the Board and Fonte.
Appellants raise the following issues on appeal:
THE STANDARD OF REVIEW.
POINT II THE TRIAL COURT ERRED IN FINDING THE DEFENDANT-BOARD HAD THE AUTHORITY TO DECIDE THE APPLICATION FOR USE AND BULK VARIANCES.
POINT III THE TRIAL COURT ERRED IN UPHOLDING THE BOARD'S GRANT OF THE USE VARIANCE.
A. THE TRIAL COURT ERRED IN FINDING DEFENDANT SATISFIED THE POSITIVE CRITERIA SINCE IT DID NOT ESTABLISH THE PROPOSED SITE WAS PARTICULARLY SUITED FOR A BAIT/SANDWICH SHOP AND APARTMENT OR THAT THE PROPERTY COULD NOT BE DEVELOPED WITH A CONFORMING USE.
B. THE SUBSTANTIAL EVIDENCE DOES NOT  SUPPORT THE TRIAL COURT'S CONCLUSION THAT DEFENDANT'S PROOFS SATISFIED THE NEGATIVE CRITERIA FOR THE GRANT OF A USE VARIANCE.
POINT IV THE TRIAL COURT'S DECISION REGARDING THE DEFENDANT-BOARD'S GRANT OF THE BULK VARIANCES WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE.
The jurisdictional issue raised in Point II is based upon an argument that some of the subject property was not covered by two prior Tidelands Grants but rather was owned by the State and subject to a tidelands claim. Although the applicant obtained an "unofficial" determination from the New Jersey Bureau of Tidelands Management that the State did not have an interest in the property, appellants argue that the applicant did not have an enforceable proprietary interest in the property pursuant to N.J.S.A. 40:55D-4 while the tidelands claim was unresolved. Appellant argues that, as a result, the Board lacked jurisdiction to hear the application.
Judge Grasso set forth the evidence regarding the tidelands issue in his opinion and concluded:
In this case, a condition was imposed upon the applicant to obtain a Statement of No Interest to ensure the applicant was the owner of property to be improved. If the applicant obtains such a Statement of No Interest, they will be the owners of the property and therefore, none of the conditions of the use variance will impact matters within the jurisdiction of the DEP because they would not have an ownership interest, unlike in the case of [Anfuso v. Seeley, 243 N.J. Super. 349 (App. Div. 1990)]. If the applicant does not obtain a Statement of No Interest, they will be unable to continue with their plans and will be unable to impact matters within the jurisdiction of the DEP. Therefore Anfuso does not have bearing on the validity of this Board's decision. Moreover, plaintiff's assertion that Fonte lacks an enforceable proprietary interest is without merit as the applicant is a contract purchaser for the subject property.
We agree with Judge Grasso's findings and conclusion.
In their remaining arguments, appellants challenge the trial court's findings and conclusion that the Board's grants of the bulk and use variances were not arbitrary, capricious or unreasonable. Judge Grasso carefully evaluated the evidence and its sufficiency to meet the requirements of N.J.S.A. 40:55D- 70(c) and (d). We affirm for the reasons set forth in his opinion.
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