On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. L-5581-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Messano and LeWinn.
The parties appeal and cross-appeal from a trial court judgment entered following a trial on plaintiff's complaint in lieu of prerogative writs.*fn1 After reviewing the record in light of the contentions advanced on appeal, we affirm in part, reverse in part, and remand for further proceedings.
Defendant The General's Group ("General's") seeks to develop property in Little Ferry as a hotel. The site is in the B-H zone, in which a hotel is a conditional use. The property fronts on the Hackensack River and runs along Route 46. It is in the vicinity of the traffic circle at the juncture of Route 46 and Bergen Turnpike. Part of General's proposal included merging existing Lots 5, 8, 9 and 10 in Block 5.01 into two new lots, 8.01 and 8.02. General's proposed to place the hotel on Lot 8.02, which abuts Route 46; however, there is no direct access to the highway from Lot 8.02. General's proposed site plan showed a long driveway starting from Lot 8.02, traversing Lot 8.01, with access to and from Route 46 through a narrow corner of adjoining Lot 11. Lot 11 is owned by defendant FTA Realty ("FTA"), which is controlled by the same principals as those who control General's.
The minimum lot size in this zone is 80,000 square feet. Lot 11, which is only 30,223 square feet, is significantly undersized. There are two buildings on Lot 11, one of which is abandoned. The other is used as an auto body shop, which is a pre-existing, non-conforming use.
General's initially applied to the Little Ferry Planning Board ("Board") for site plan approval and certain variances for this development in 2002. It did not, as part of that application, seek site plan approval for the improvements that would need to be built on Lot 11, such as the curb cut, paving and island.
After the Board approved the project in 2003, plaintiff, a Little Ferry resident and property owner, filed an action in lieu of prerogative writs, challenging this approval. In 2006, the trial court upheld this approval, but remanded the matter to the Board to consider three questions.
The initial resolution adopted by the Board had included as a condition to its approval that General's break ground on the project within one year. The trial court struck down that condition because Little Ferry, in its governing ordinances, had not conferred upon the Board the authority to impose such a condition. The trial court directed the Board to determine if it would have approved the project absent that condition.*fn2
Further, when the Board originally approved the project in 2003, it included as a condition that General's obtain an easement from FTA for its proposed use of Lot 11. The trial court concluded that condition was inadequate and that the Board should have required approval of a site plan application showing the proposed use of Lot 11 as a condition of its approval. It remanded the matter to the Board to consider such an application; plaintiff had argued to the trial court during the 2006 litigation that such a use of Lot 11 would require variance relief, but the trial court specifically refrained from deciding whether any variances would indeed be required.
The third issue that the trial court remanded to the Board was consideration of site plan approval for a walkway along the riverfront portion of the site. The property is located within the Hackensack Meadowlands District, and the New Jersey Department of Environmental Protection requires that improvements within the District include a walkway with public access. Such a walkway had not been included in General's original application.
Plaintiff appealed to this court, but we affirmed in an unpublished opinion. Nuckel v. Borough of Little Ferry Planning Bd., No. A-5874-05 (App. Div. Sept. 5, 2007). The Supreme Court denied plaintiff's petition for certification. 193 N.J. 277 (2007).
In June 2007, General's filed two revised applications with the Board, showing the location of the proposed walkway and seeking final site plan approval for the driveway access through Lot 11. Remand proceedings before the Board were protracted for a variety of reasons. In May 2008, the Board found that it would have approved the original application absent the one-year condition the trial court had earlier set aside. It also approved the revised applications with respect to the walkway and Lot 11 access.
In July 2008, plaintiff filed a second action in lieu of prerogative writs, challenging this 2008 approval. The trial court upheld the Board's resolution in terms of the riverfront walkway and the Board's finding with respect to the one-year condition. It reversed, however, the approval with respect to Lot 11. It concluded that use of Lot 11 to obtain access to the hotel required both a use variance and a variance to permit expansion of a non-conforming use. According to the trial court, the application was defective because it did not seek these variances. The parties have appealed and cross-appealed from the trial court's judgment. General's contends that the trial court erred when it held that the proposed use of Lot 11 required variance relief. Plaintiff in his cross-appeal contends the trial court erred when it upheld the Board's determination that the earlier vacation of the one-year condition did not affect its approval of this project and further erred when it granted site plan approval to the proposed walkway.
The action of a local board such as defendant Board is presumed to be valid, and a court will not overturn its determinations unless they are arbitrary, capricious or unreasonable. Toll Bros. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 256 (2008). A party challenging such board action has the burden of showing that it was arbitrary, capricious or unreasonable. Ibid. When the determination under consideration, however, is a legal determination, for example, interpretation of an applicable ordinance, a court reviews the matter de novo. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004). See also, Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993) (declining to defer to planning board in its interpretation of municipal zoning ordinances because "[a]lthough courts defer to the expertise of municipal agencies in reviewing discretionary exercises of an agency's statutory powers, the interpretation of an ordinance is primarily a question of law.").
Defendants contend that the trial court did not afford the proper deference to the Board's decision to approve General's application. They cite cases such as Sica v. Bd. of Adjustment of Wall, 127 N.J. 152 (1992), in which the Court noted that a reviewing court should afford a presumption of validity to a board's decision granting a variance. That principle, however, does not govern the analysis of this matter. Here we are dealing not with a decision to grant a variance but, rather, with a decision that no variance was needed. That is a question of law, and the trial court was not obligated to defer to the Board's view on this issue.
We turn first to the question whether the proposed use of Lot 11 to obtain access to Lots 8.01 and 8.02 represents an expansion of a non-conforming use, necessitating a use variance. The trial court decided that it did; we are unable to agree.
We have already noted that Lot 11 is significantly smaller than required by Little Ferry's current zoning. Further, the auto body shop on Lot 11 would not be permitted under Little Ferry's present zoning and is a non-conforming use. In the view of the trial court, using Lot 11 to obtain access to the hotel driveway will decrease the buffer zone between the non-conforming body shop and the adjacent property. The trial court concluded that the effect of such a reduced buffer zone was an expansion of a non-conforming use. The power to authorize the expansion of a non-conforming use rests exclusively within the jurisdiction of a zoning board of adjustment. Avalon Home & Land Owners v. Borough of Avalon, 111 N.J. 205, 211-12 (1988); Conselice v. Borough of Seaside Park, 358 N.J. Super. 327, 330-31 (App. Div. 2003). The trial court thus concluded that defendant Board, which was acting as Little Ferry's Planning Board when it reviewed the application, lacked jurisdiction to grant site plan approval in the absence of a variance approving such expansion of a non-conforming use.*fn3
The trial court based its conclusion that a decrease in the buffer zone would result in an expansion of a non-conforming use on our opinion in Razberry's Inc. v. Kingwood Township Planning Bd., 250 N.J. Super. 324 (App. Div. 1991). We agree with defendants, however, that Razberry's is distinguishable.
In that case the defendant was the contract-purchaser of 5.17 acres of an 8.17 acre parcel located in a commercial zone. The portion the defendant proposed to purchase contained the seller's residence, a non-conforming use. Id. at 325. The defendant submitted an application to the Planning Board to divide the 5.17-acre lot into two lots, one of which would contain the seller's residence, the other a commercial use. Id. at 325-26. The result of the proposed subdivision would be to leave the residence on a three-acre parcel, while the minimum lot size in this commercial zone was five acres. Ibid.
We held that it was insufficient for the contract purchaser merely to obtain subdivision approval and a hardship variance from the Planning Board. Id. at 326. When a lot with a nonconforming use is subdivided, the owner must obtain a use variance for expansion of the nonconforming use in order to continue that use. Id. at 326-27. We held:
[A] reduction in the size of the property occupied by a nonconforming use, with a resulting decrease in the buffers between conforming and nonconforming uses, is just as likely to increase the conflict between a nonconforming use and surrounding conforming uses as an expansion of the facility containing the nonconforming use or an intensification of that use. Therefore, a reduction in the size of the property ...