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Lukens v. Ocean City Zoning Board of Adjustment

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 19, 2010

WALTER LUKENS AND JOANNE LUKENS, PLAINTIFFS-RESPONDENTS,
v.
OCEAN CITY ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT, AND ANGELS ON THE ATLANTIC, INC., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-682-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 21, 2010

Before Judges Fisher, Sapp-Peterson and Espinosa.

Defendant, Angels on the Atlantic (Angels), appeals from the May 20, 2009 order of Judge Valerie Armstrong, A.J.S.C., reversing a decision by defendant, Ocean City (City) Zoning Board of Adjustment (Zoning Board), construing Section 25-206.2.2 of its zoning ordinance (the Ordinance) as permitting privately-owned structures within the city's Beach and Dune Zone (BD Zone). We affirm.

By way of background, Angels is a charitable organization co-founded by its two principals, Vincent and Eugenia Hubach (the Hubachs). Angels' mission is to provide a "beach experience" to inner-city children from New Jersey and Pennsylvania. In September 2004, the Hubachs purchased property in the City, Lots 2 and 3, located in the BD Zone. The BD Zone is an environmentally sensitive area containing natural protections against flooding and other disasters. The Ordinance strictly limits the types of uses permitted in this zone:

Permitted Uses

Open space, beach and water recreation, protective sand dunes and related improvements including snow fencing and dune stabilization plantings, stairs and walkways for beach access and dune preservation, necessary municipal buildings and structures for public safety and convenience including first aid stations, lifeguard stations, comfort stations, boardwalks, pavilions, piers, and related facilities, necessary shore protection and stabilization improvements including jettys, groins, bulkheads and related structures. [Ocean City Ordinance 25-206.2.2]

The Hubachs operate a restaurant on Lot 2 known as Sugars, a non-conforming use within the BD Zone, which had been grandfathered into the City's zoning code. Because demand to participate in their program increased, the Hubachs sought to replace Sugars with a pavilion that would enable Angels to more effectively provide services to its participants. On January 14, 2008, Angels applied for a permit to construct a 6,000-square-foot pavilion. The proposed pavilion would stand three stories high and feature four multipurpose rooms, two offices, a kitchen, men's and women's bathrooms, and outdoor showers. Kenneth L. Jones (Jones), the City's zoning officer, denied the permit on the basis that the "Structure proposed is not a permitted use" under the Ordinance. Angels appealed to the Zoning Board "[r]equesting interpretation, and in the alternative[,] approval of [a] "D" variance."

The Zoning Board held a public hearing on September 17, 2008. The Board heard testimony from Vincent Hubach and three land use experts: Vincent Orlando, John Halbruner, and David Battistini. Jones also testified at the hearing. Plaintiffs, Walter and Joanne Lukens (Lukens), owned property across the street from the Hubachs' property. They, along with twenty-three other neighbors, all of whom opposed Angels' proposal, had their interests at the hearing represented by retained counsel.

Hubach testified that the proposed pavilion would function as a convenience for children visiting the beach as part of the Angels program; that it would give the children a place to eat, relax, read, and use the bathroom during their stay at the beach. He also indicated that the pavilion would be open to the general public, free of charge, explaining that "[t]here will be bathroom facilities there, they can use them, [there will] be facilities there to rinse the sand off, they can use them. If they want to come in and get out of the sun, sit in the shade, come on in."

Orlando, a licensed professional engineer and certified landscape architect with more than twenty years of experience as a zoning engineer for a neighboring township, testified that the Ordinance should be read as permitting private structures for public safety and convenience in the BD Zone. In his view, the drafters of the Ordinance would have placed the word "municipal" directly before the word "structures" if they intended to require that all structures in the BD Zone be municipally owned and operated.

Halbruner, a licensed architect and professional engineer with extensive zoning experience in Ocean City, testified that the Ordinance should be construed as prohibiting non-municipal structures in the BD Zone. In his opinion, the drafters of the Ordinance would have inserted a comma between the words "municipal buildings" and "structures for public safety and convenience" if they wanted to allow for private structures in this area. In their testimony, Battistini, the Zoning Board's engineer, and Jones both agreed with Halbruner's interpretation of the Ordinance.

Following the presentation of the testimony and consideration of the exhibits admitted into evidence, Zoning Board member Susan Miller made a motion to overturn Jones's "determination and decision that the proposed building is not a permitted structure in the Beach Dune Zone because it is not a municipal building." The motion was limited to whether "Zoning Ordinance section 25-206.2.2 requires structures to be municipal structures to qualify as permitted in the zone." By a vote of 4-3, the Zoning Board reversed Jones's decision.

Board member James O'Brien (O'Brien) voted "yes" because he thought:

[T]hey're two documents that have legal status in this matter, one of them 19-3-1, the side of this to the municipal building or structure, and I think that Mr. Battistini's interpretation can be arguable one way or the other, but I argue that there's no comma there; and therefore, these other structures do not have to be municipal.

Board member Susan Miller voted "yes," agreeing with O'Brien's reasoning. Board member Maryanne Lavner (Lavner) voted yes, explaining, "[a]lthough I think the thrust of the ordinance starts to lean towards, you know, municipal buildings, it's not specifically clear, so yes... I vote yes to overturn his decision." Board member Stephanie Rankin voted "yes" for the reasons expressed by both O'Brien and Lavner. Board members Leslie Skibo, Marian A. Talese and Sharon Russell voted "no," agreeing with the interpretation of the Ordinance offered by Jones.

Subsequent to the Zoning Board's decision, the Lukenses filed a complaint in lieu of prerogative writs in Superior Court challenging the Zoning Board's interpretation of the Ordinance. They argued that the Ordinance, when properly read, would not permit the proposed structure in the absence of a grant of a variance pursuant to N.J.S.A. 40:55D-70(d).

After considering the briefs and entertaining oral argument, Judge Armstrong issued a written opinion reversing the Zoning Board's decision. She found that the Ordinance did not contemplate privately-owned structures in the BD Zone.

Judge Armstrong first addressed Angels and the Zoning Board's claim that the word "municipal" contained in the language of the Ordinance modifies "buildings" only rather than both the words "building and structures." Reviewing the standard for interpreting a statute or ordinance, Judge Armstrong stated:

In interpreting a statute or ordinance, a reviewing court must strive to effectuate the intent of the draftsmen "in light of the language used and the objects sought to be achieved." Merlin v. Maglaki, 126 N.J. 430, 435 (1992). Here, the plain language of the Ordinance, "the best indicator of legislative intent," R.A.C. v. P.J.S., Jr., 192 N.J. 81, 95 (2007), leads to a single, reasonable interpretation. If Ocean City's governing body had intended for "municipal buildings" to be read separately from "structures," the governing body would have separated the two phrases with a comma, which would effectively distinguish the one, "municipal buildings," from the other, "structures." No comma is present because the two phrases are meant to be read conjunctively as "municipal buildings and structures." Though the absence of a comma is not dispositive, it is some evidence of intent, which, together with the language and context of the Ordinance as a whole, militates against the Board's interpretation of the Ordinance. See Moore v. Magor Car Corp., 27 N.J. 82, 87 (1958) (stating "punctuation is part of an act and may be considered in its interpretation").

Reading the contested phrase against the words that follow, and against the purpose of the Ordinance, supports the conclusion that "municipal buildings and structures" was intended to be a single phrase, with "municipal" modifying both "buildings" and structures." The examples of "municipal buildings and structures" that follow the phrase are typical facilities that a beachgoer would expect to find in the BD Zone and that a beachgoer would not expect to be controlled by an entity other than the municipality or the state. See In re Stream Encroachment Permit, 402 N.J. Super. 587, 603 (App. Div. 2008) (stating that "the meaning of a word or particular set of words in a statute may be indicated, controlled, or made clear by the words with which it is associated"). As the Ordinance states, these facilities are "for public safety and convenience," which facilities include: "First aid stations, life guard stations, comfort stations, boardwalks, pavilions, piers, and related facilities." The characteristics shared by these facilities, at least when found at a public beach, are that they are commonly controlled by a governmental entity and are for the benefit of the public at large. [Angels'] proposed "pavilion" would not be publicly owned, would not be controlled by the municipality of Ocean City, and would not be primarily for the benefit of the public at large, though, conceivably, the public might benefit from the structure.

Judge Armstrong next pointed out that as a matter of common practice in the area of housing and development within any municipality where privately-owned structures are contemplated, housing and building codes exist. Applying that rationale to the City's BD zone, Judge Armstrong reasoned:

[O]ne would certainly expect to find regulations typical to zoning ordinances involving such ownership, such as lot area, height, dwelling unit density, and setback limitations, but no such bulk and area regulations are present in the pertinent sections of the Ordinance. The Ordinance states that such requirements are "not applicable in this [BD] zone." § 25-206.2.5 through 2.12 of the Ordinance; § 25-206.2.15. Likewise, conditional and accessory uses are "not applicable" in the BD zone. § 25-2-6.2.3 & 2.4 of the Ordinance. To interpret § 25-206.2.2 as permitting the erection of privately[-]owned structures would mean that privately[-]owned structures could be built in the BD Zone without specifically defined area and bulk requirements. Such a possibility is totally contrary to zoning as we know it in this state. It would grant carte blanche to Ocean City's Zoning and Planning Boards to approve the construction of privately[-]owned structures in a sensitive conservation zone with no definitive limitations. This is clearly an absurd result not in the public interest. An additional interesting question emerges based upon [Angels'] interpretation of the Ordinance: What would be the basis for an appeal from a land use board's approval of such privately[-]owned structures in the BD

[Z]one absent the existence of bulk and area standards?

Judge Armstrong noted further:

The primary purpose of the BD Zone is conservation of sensitive beach front property, not private ownership or development, as the Ordinance plainly states at § 25-206.2.1:

The purpose of establishing the Beach and Dune Zone is to regulate the use of this flood preventative land form in ways that will not destroy its flood preventative function, in accordance with N.J.S.A. 40:55D-2(a), (b), (g) and (j), in order to secure safety from flood and other natural disasters; to provide sufficient space for recreational uses in order to meet the needs of all New Jersey Citizens; and to promote conservation of valuable natural resource[s].

Section 25-206.2.2(a), pertaining to "permitted Uses" in the BD Zone, reads [emphasis added]:

All structures which are deemed necessary by local, state, or Federal governments to enhance flood prevention capability of these land forms, provided that they shall not involve the construction of buildings or signs.

Together, § 25-206.2.3 and § 25-206.2.2(a) make plain that Ocean City's governing body intended to keep ownership of buildings and structures in the BD Zone limited to municipal, state, or federal government entities and to keep the zone free from larger buildings and structures, such as [Angels'] proposed "pavilion," which would interfere with the primary conservation purpose of the zone. The term "necessary" preceding "municipal buildings and structures" in § 25-206.2.2 of the Ordinance further highlights the BD Zone's conservation purpose, limiting even building by the municipality to only that which is necessary for "public safety and convenience."

Additionally Judge Armstrong was not persuaded by Angels' contention that the proposed pavilion would advance the BD Zone's stated purpose of providing "sufficient space for recreational uses in order to meet the needs of all New Jersey citizens[.]" Ocean City Ordinance 25-206.2.1. She reasoned that even if the proposed pavilion advanced the Ordinance's purpose, this fact is irrelevant where the "words that outline what is permissible within the zone do not allow privately[-] owned structures." Moreover, the judge observed that as proposed, the three-story structure would "seemingly lessen the open space available for recreational use" and would "certainly... not promote conservation of a valuable natural resource."

Judge Armstrong also noted that the word "recreation," as set forth in Ordinance 25-206.2.1, setting forth the Ordinance's purpose, is followed by the word "uses," not "structures." Finally, she rejected Angels' contention that the Ordinance interpretation advanced by plaintiffs violates the Public Trust:

The Public Trust Doctrine is simply not applicable. Section 25-206.2.2, properly interpreted, only regulates what limited, municipal structures may be built in the BD Zone, not who may have access to the beaches within the Zone. As such, limiting the BD Zone to municipal buildings and municipal structures does not implicate the Public Trust Doctrine.

The present appeal followed.

On appeal, Angels raises the following points for our consideration:

POINT I

THE TRIAL COURT FAILED TO GIVE APPROPRIATE DEFERENCE TO THE INTERPRETATION OF § 25- 206.2.2 OF THE OCEAN CITY ZONING ORDINANCE BY THE ENTITY CHARGED WITH ITS ENFORCEMENT, THE OCEAN CITY ZONING BOARD.

POINT II

THE TRIAL COURT'S INTERPRETATION OF THE ORDINANCE WAS RIDDLED WITH CONSTRUCTION ERRORS THAT LED TO AN INCORRECT INTERPRETATION OF THE ORDINANCE.

A. THE TRIAL COURT DID NOT ATTEMPT TO HARMONIZE ORDINANCE 25-206.2.2 WITH ORDINANCE 19.3.1, AND IT FAILED TO TAKE NOTE THAT HARMONIZING THE TWO RELATED ORDINANCES WAS AN IMPORTANT AND CORRECT INTERPRETATIVE TOOL UTILIZED BY THE OCEAN CITY ZONING BOARD.

B. THE TRIAL COURT'S INTERPRETATION OF ORDINANCE 25-206.2.2 PUTS INORDINATE EMPHASIS ON THE WORD "MUNICIPAL," CAUSING IT TO MODIFY TOO MANY WORDS, AND IT IMPERMISSIBLY REWRITES THE PROVISION.

We reject each of the points raised by Angels and affirm for the reasons expressed by Judge Armstrong in her comprehensive, cogent, and well-reasoned May 19, 2009 written opinion. We add the following brief comments.

Ordinarily, a presumption of validity attaches to actions of a local zoning board, and the party challenging the action bears the burden of demonstrating otherwise. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002). A trial court reviewing a zoning board's action is limited to deciding whether the board's decision was arbitrary, capricious or unreasonable. Ibid. Where, however, the issue before the trial court is the interpretation of an ordinance, a question of law is implicated, and courts are "not bound by a legal interpretation of an ordinance by... the zoning board." Pullen v. Twp. of S. Plainfield Planning Bd., 291 N.J. Super. 1, 4 n.4 (App. Div. 1996) (citing Grancagnola v. Planning Bd. of Verona, 221 N.J. Super. 71, 75 (App. Div. 1987)).

As with any question of law, zoning ordinance interpretations are reviewed, both in the trial court and on appeal, de novo. Bubis v. Kassin, 184 N.J. 612, 627 (2005). However, even where the de novo standard applies, our courts consistently "recognize [a] board's knowledge of local circumstances and accord deference to its interpretation." Grubbs v. Slothower, 389 N.J. Super. 377, 383 (App. Div. 2007); Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552 (App. Div. 2004). Municipal officials "'are thoroughly familiar with their community's characteristics and interests and are the proper representatives of its people[.]'" Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965) (quoting Ward v. Scott, 16 N.J. 16, 23 (1954)).

Applying these principles to the present matter, we first endorse Judge Armstrong's approach to the statutory construction of the word "municipal" to discern the governing body's intent. The absence of a comma, though not dispositive, is nonetheless evidential of the governing body's intent that the word apply to both "buildings and structures." Doyal v. N.J. Dep't of Envtl. Prot., 390 N.J. Super. 185, 189-90 (App. Div. 2007). The Ordinance does not simply identify "buildings and structures" as permitted uses but explains their purposes: "necessary" for "public safety and convenience including first aid stations, life guard stations, comfort stations, boardwalks, pavilions, piers, and related facilities," all of which are words typically associated with municipal undertakings. See In re Stream Encroachment Permit, 402 N.J. Super. 587, 603 (App. Div. 2008) (noting "the meaning of a word or particular set of words in a statute may be indicated, controlled, or made clear by the words with which it is associated"). Moreover, this list describes things that could be both a "building" or a "structure." The definition of "building" is "[a] structure that is built," while "structure" is defined as "something constructed, such as a building." Webster's II New College Dictionary 149, 1120 (3d ed. 2005). Hence, "[b]uilding is the basic, broadly applicable term of this group[,] [while] [s]tructure usually implies considerable size and emphasizes physical make-up with respect to material and design." American Heritage Dictionary 215 (2nd College Edition 1991).

Additionally, as Judge Armstrong observed, of even greater significance is the absence of any lot area, height, dwelling unit density and setback limitations under the Ordinance, provisions in zoning codes that further one of the objectives of municipal land use, "[t]o encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare." N.J.S.A. 40:55D-2(a). Thus, the word "municipal," when considered in the context of the Ordinance, as well as its grammatical use in the conjunctive rather than in the disjunctive, modifies both the words "buildings" and "structures." The Zoning Board's interpretation otherwise is not supported grammatically or in the context in which the words are used. The conclusion is therefore inescapable that the Ordinance does not permit the erection of privately-owned structures, irrespective of the laudable purposes for which Angels sought to construct the pavilion.

Affirmed.

20100819

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