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Lukens v. Ocean City Zoning Board of Adjustment

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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