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Signature Communities, L.L.C v. Borough of Red Bank Zoning Board of Adjustment


February 10, 2011


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4127-08.

Per curiam.


Argued telephonically October 21, 2010

Before Judges Parrillo, Yannotti and Espinosa.

Plaintiff Signature Communities, Inc. appeals from an order entered by the Law Division on September 10, 2009, affirming a decision of the Zoning Board of Adjustment (Board) of the Borough of Red Bank (Borough) which had denied plaintiff's application for approval of a plan for development of its property. We affirm.

Plaintiff is the owner of the Colony House, a fifty-year-old apartment complex in Red Bank. Colony House is situated in the Borough's Waterfront Development (WD) Zone, in which multi-family residential uses with a density of forty units per acre are permitted. Colony House has fifty-seven units per gross acre and it is located on about one-and-a-half acres.

Furthermore, the building has non-conformities for building height, parking, setbacks, frontage, lot coverage and floor area. At present, Colony House has sixty-eight parking spaces. Thirty-six of the parking spaces are located on-site, and thirty-two spaces are located in a lot across the street from the building.

In November 2006, plaintiff filed an application with the Borough's Department of Planning and Zoning (Department) for approval of certain renovations to the building. Plaintiff proposed to renovate the interior and exterior fa§ade of the building, add balconies or terraces to certain units, and extend the seventh floor to the rear of the building. Initially, plaintiff intended to maintain the existing sixty-eight parking spaces and add two spaces that would be reserved for parking by handicapped persons.

Plaintiff's application required preliminary and final site plan approval, as well as a variance to expand the pre-existing nonconforming use pursuant to N.J.S.A. 40:55D-70(d). Plaintiff also required bulk variances pursuant to N.J.S.A. 40:55D-70(c).

Plaintiff's application was reviewed by Richard A. Kosenski (Kosenski), the Borough's Engineer. In a letter to the Department dated January 23, 2008, Kosenski stated that Colony House is considered to be a Mid-Rise Apartment under the State's Residential Site Improvement Standards (RSIS). Kosenski said that the RSIS would require that the building have 132.2 parking spaces if the improvements were made.

The Board conducted several hearings on plaintiff's application. At the hearing on January 3, 2008, plaintiff presented testimony from James Monteforte, its architect, who stated that the purpose of the renovation was to enhance the appearance of the building and bring it up to a more acceptable standard.

Also at the January 3, 2008, hearing, plaintiff presented testimony from Christine A. Coffone (Coffone), a professional planner, who stated, among other things, that the building had been functioning with one parking space per unit. Coffone asserted that plaintiff intended to target buyers who would be willing to pay $500,000 per unit.

Carol Arrisate (Arrisate), the current property manager at Colony House, also testified at the January 3, 2008, hearing. Arrisate stated that the building was not experiencing any problem with parking. She said that the parking lot was "mostly empty[.]" Arrisate pointed out, however, that forty units in the building were not occupied.

After the January 3, 2008, hearing, plaintiff submitted a revised site plan with nineteen additional parking spaces. At a hearing held on March 6, 2008, James Kennedy (Kennedy), a professional engineer, testified regarding the plan to add parking spaces. Kennedy noted that the revised plan had eighty-seven parking spaces, whereas the RSIS required 132 spaces, leaving a shortfall of forty-five parking spaces.

Kennedy additionally stated that Colony House is in a suburban area, which "is a walkable community[.]" He said that, in considering the adequacy of parking under the RSIS, the Board could consider other factors, including the surrounding land uses, availability of mass transit and "the walkability of the community."

The Board conducted another hearing on the application on April 17, 2008. At that hearing, Charles Silberberg (Silberberg), plaintiff's principal, testified that there had been discussions with the owner of certain property "down the road" concerning the use of its parking spaces after hours or on weekends. Silberberg stated, however, that this option was not available. Silberberg said that use of a parking lot across the street from Colony House also was not feasible, and the Colony House property was too narrow for construction of a parking garage.

The Board voted to deny plaintiff's application and issued a resolution dated July 17, 2008, memorializing its decision. In that resolution, the Board noted that plaintiff had proposed to increase the number of two-bedroom apartments in Colony House by nine units and decrease the number of one-bedroom apartments by eight units. The Board stated that the present structure was not "an eyesore in dire need of aesthetic renovations." The Board noted that, although the proposed renovations would be "an upgrade" to the existing structure, this was not a sufficient basis for issuing the variances plaintiff was seeking.

The Board additionally noted that the proposed renovations would exacerbate the "severe lack of available parking" at Colony House. The Board stated that in 2002, it had permitted Colony House to reduce the size of its off-site lot by two spaces, based upon evidence indicating that many of the tenants at Colony House did not own automobiles and that there was an excess of available parking spaces. The Board found, however, that the proposed renovations would result in a greater need for available parking.

In its resolution, the Board made the following additional findings:

13. The Board also rejects Mr. [Silberberg's] argument that when considering the price of the renovated units in conjunction with the lack of available parking, prospective owners who wish to have more than one automobile for the premises will be dissuaded from buying at the Colony House. The Board draws upon its own knowledge and experience of the history of Red Bank that a lack of parking has not traditionally dissuaded anyone from moving to the Borough and bringing their automobiles with them.

14. The Board also places much weight upon Mr. [Silberberg's] statements that he wishes to improve the Colony House as to allow a higher level of clientele who would be able to appreciate the waterfront views and other amenities the Borough has to offer. The Board concludes that the clientele envisioned by Mr. [Silberberg] would most certainly bring with them more automobiles than the tenants who currently reside at Colony House, many of whom, based upon the aforementioned Planning Board Resolution, do not own automobiles.

15. The Board also finds that the applicant has not explored all possibilities for further decreasing the parking need of the Colony House. The Board notes the applicant has refused to eliminate any units or bedrooms from the premises. In fact, the applicant is actually increasing the number of two bedroom units from [forty] to [forty nine]. Elimination of [two] bedroom units, rather than adding such units, would have decreased the amount of parking necessary.

16. After considering all of the evidence and testimony before it, the Board has no choice but to conclude that approval of the application would lead to an increase in traffic to the Colony House by both new owners and visitors of those new owners. The Board concludes these new travelers to the Colony House would have no place to park and would be forced to park along the streets in the surrounding [neighborhoods], thereby causing a detriment to the public good. Attempting to avoid such a reality is the exact reason why 132 parking spaces are required for this project.

17. The Board acknowledges the applicant has proposed to increase the amount of available parking at Colony House from [sixty-eight] total spaces to [eighty-seven] total spaces. However, the Board notes that the proposed total of [eighty-seven] spaces is misleading since three of those spaces will be reserved for handicapped parking and therefore not available to non-handicapped unit owners or non-handicapped guests to the complex. As a result, the Board does not believe the increase is nearly enough to compensate for the 132 parking spaces which are actually required.

18. The Board is also concerned as to the fact that there would only be [thirty-nine] spaces located on the main lot of the Colony House, three of which would be handicapped spaces, while the remaining [forty-eight] spaces would be located off-site. The Board concludes that in providing the bulk of parking off-site, visitors to the Colony House may not realize parking is available down the street in the second lot and instead park along the street itself.

19. The Board further concludes that whatever minimal benefit the Borough might receive from the proposed aesthetic improvements to the Colony House would be severely outweighed by the overall detriment that would be suffered by the Borough and its residents due to the lack of sufficient parking.

20. The Board acknowledges the parking conditions of the Colony House are pre-existing. Nevertheless, the Board believes the application, as proposed, has not been crafted in such a fashion so as to be mindful of the concerns and problems facing the Colony House and the Borough of Red Bank. The Board notes that the applicant initially proposed all parking spaces would be sold separately from the condominium units. Only after objections from the Board did the applicant agree to assign at least one space per unit. Likewise, the applicant failed to guarantee that a concierge, who might be able to oversee the parking situation, will actually be on-site since such employment would not be compulsory under the Association's governing documents and there would not be any office space available to house the concierge were one to be hired.

The Board concluded that plaintiff failed to satisfy the positive or negative criteria required for issuance of the requested variances.

On September 2, 2008, plaintiff filed an action in lieu of prerogative writs in the Law Division seeking reversal of the Board's decision. The trial court considered the matter on August 24, 2009, and placed its decision on the record on that date. The trial court found that the Board's decision was not arbitrary, capricious or unreasonable. The court entered an order dated September 10, 2009, affirming the Board's decision and dismissing plaintiff's complaint with prejudice. This appeal followed.

Plaintiff argues that the Board erred by denying its application for a N.J.S.A. 40:55D-70(d) variance to expand the pre-existing, nonconforming use because it met the positive and negative criteria required for the variance. We disagree.

A zoning board of adjustment may not issue a variance or other relief pursuant to N.J.S.A. 40:55D-70(d) unless there are "special reasons" for the variance and the variance "can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 384-85 (1990). This standard applies to the issuance of a variance to expand a pre-existing, nonconforming use. Id. at 384 (citing Grundlehner v. Dangler, 29 N.J. 256, 269 (1959)).

Because of their "peculiar knowledge of local conditions," municipal bodies "must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adj. Of Wall, 184 N.J. 562, 597 (2005) (citing Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965)). Thus "[t]he proper scope of judicial review is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Ibid. (citing Kramer, supra, 45 N.J. at 296; Kessler v. Bowker, 174 N.J. Super. 478, 486 (App. Div. 1979), certif. denied, 85 N.J. 99 (1980)).

Furthermore, we ordinarily grant greater deference to the denial of a variance than to its issuance. D. Lobi Enters. v. Planning/Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009). Such deference is especially appropriate because there is a strong legislative policy favoring land use planning by ordinance rather than by variance. Medici v. BPR Co., 107 N.J. 1, 21-23 (1987).

Plaintiff contends that it established "special reasons" for issuance of the variance and the Board acted arbitrarily, capriciously and unreasonably in concluding otherwise. Plaintiff argues that its proposed renovations to Colony House will be an aesthetic improvement to this fifty-year-old structure, allow the public waterfront access, provide better access for handicapped persons, and increase the number of parking spaces. Plaintiff additionally contends that it satisfied the negative criteria required for the variance and the Board erroneously denied its application based upon a "perceived intensification of an existing parking problem in the area[.]" We find no merit in these arguments.

Here, the Board determined that plaintiff failed to establish "special reasons" for issuance of the variance. The Board found that Colony House is not an "eyesore[.]" The Board also found that plaintiff's proposed renovations were merely a 'facelift" that did not warrant issuance of the variance. We are satisfied that there is sufficient credible evidence in the record to support the Board's findings.

Furthermore, although public access to the waterfront, better access to the property for handicapped persons, and an increase in the numbers of parking spaces are improvements to the site, we are not convinced that the Board acted arbitrarily, capriciously or unreasonably in finding that these improvements did not rise to the level of "special reasons" for issuance of the variance.

Even were we to assume that plaintiff established the required "special reasons" for issuance of the variance, there is nevertheless sufficient credible evidence in the record to support the Board's determination that plaintiff had not satisfied the negative criteria for granting variance relief.

As we have explained, at present, Colony House has only sixty-eight parking spaces. Under plaintiff's revised plan, the building would have eighty-seven parking spaces, with three reserved for parking by handicapped persons. It is undisputed that under the RSIS, the building requires 132 parking spaces. The Board reasonably determined that residents at Colony House and persons visiting the building would not have adequate parking and would, as a consequence, park their vehicles in adjacent streets and neighborhoods, to the detriment of the public good.

Plaintiff argues that the record does not support the Board's concerns about parking. Plaintiff notes that the resolution adopted by the Board in 2002, which allowed Colony House to eliminate two of its parking spaces, stated that many of the tenants at Colony House did not have automobiles and, as a result, there was an excess of parking spaces. Plaintiff also notes that mass transportation is available in the area. In addition, plaintiff says that any deficiency in the number of parking spaces would be addressed in part by market conditions because prospective owners with more than one vehicle would not purchase units in the building.

In our judgment, the Board's rejection of plaintiff's assertions was not arbitrary, capricious or unreasonable. The record shows that the renovated structure will have nineteen one-bedroom units and forty-nine two-bedroom units. As we have explained, the RSIS requires 132 parking spaces for such a building. The Board reasonably found that the number of parking spaces proposed by plaintiff was substantially deficient when measured against the number required by RSIS.

The Board found that it was unrealistic to expect that persons would not purchase units in the building despite the lack of sufficient parking spaces. The Board also found that residents and visitors would, of necessity, park their vehicles in the surrounding streets and neighborhoods thereby exacerbating an already difficult parking problem in Red Bank. In our view, the Board's findings are reasonable. We must recognize that local officials "are thoroughly familiar with their communities' characteristics and interests[.]" Kramer, supra, 45 N.J. at 296 (quoting Ward v. Scott, 16 N.J. 16, 23 (1954)).

The Board also found that certain measures proposed by plaintiff would not be sufficient to address the shortfall in available parking spaces. Plaintiff had suggested that a concierge be hired to direct residents and guests to empty parking spaces. However, plaintiff recognized that the concierge would have to be hired by the condominium association at additional expense, and that the concierge also would require a parking space.

Plaintiff additionally suggested that Colony House use an "honor system," whereby residents would notify a manager that they would be away so that their assigned parking spaces could be used by others. Nevertheless, plaintiff had acknowledged that this system would not be "policed."

Plaintiff further argues that it met the positive and negative criteria under N.J.S.A. 40:55D-70(c) for the issuance of variances for parking, floor area ratio and building height. In view of our determination that the Board properly denied the variance sought under N.J.S.A. 40:55D-70(d), we need not address these issues.



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