On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-555-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
Plaintiff Majura Dalpiaz owns North Wildwood property upon which sits a structure that houses a travel agency and "The Suitcase Motel." The Suitcase Motel consists of nineteen units located in the heart of North Wildwood's general business district, a zone which permits a myriad of commercial uses but not motels; plaintiff's motel constitutes a pre-existing nonconforming use.
In 2008, plaintiff sought a use variance for a plan that would eliminate five of the motel's nineteen units to be replaced, with some modifications of the existing structure, by an eighty-four-seat restaurant. The application was later amended to substantially reduce the size of the restaurant. The zoning board denied relief, and plaintiff filed an action in lieu of prerogative writs. For reasons expressed in a written opinion, the trial court rejected plaintiff's claim for relief, finding that the board had reasonably denied plaintiff's proposed expansion of a nonconforming use.
In March 2010, plaintiff filed a revised application with the zoning board. In this new application, plaintiff proposed the elimination of four motel units to be converted into a fifty-four-seat restaurant that was "intended to be a separate and independent operation from that of the motel." This proposal also called for the elimination of the travel agency and, according to plaintiff, would not require any "structural expansion of the existing building." In her application, plaintiff sought from the board an interpretation that her proposal did not require a use variance because, she claimed, it did not constitute an expansion of a nonconforming use. Plaintiff also sought preliminary and final site plan approval.
The zoning board concluded that a use variance was required. Following that determination, plaintiff withdrew the balance of her application and commenced this action in lieu of prerogative writs.
After hearing the arguments of counsel, Judge Valerie H. Armstrong filed a written opinion and entered final judgment in favor of the zoning board. In ruling against plaintiff, Judge Armstrong thoroughly discussed the many similarities between the application in question and plaintiff's unsuccessful 2008 application. In her written opinion, the judge correctly applied accepted legal principles that counsel against the enlargement, extension or enhancement of a nonconforming use. See, e.g., Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 315 (1980) (recognizing that "[b]ecause nonconforming uses are inconsistent with the objectives of uniform zoning, the courts have required that consistent with the property rights of those affected and with substantial justice, they should be reduced to conformity as quickly as is compatible with justice"). A few months after Judge Armstrong entered judgment here, the Supreme Court again invoked the principles outlined in Belleville and concluded that the enlargement of a nonconforming use requires "resort to the variance procedure." Nuckel v. Bor. of Little Ferry Planning Bd., 208 N.J. 95, 106 (2011).
In appealing, plaintiff has argued that: (1) the judge erred in failing to follow relevant case law; (2) the judge erred in "considering the dual use of the property as a motel and restaurant to be non-conforming and not  permitted"; and (3) the actions of the zoning board's attorney "tainted" the board's decision. We reject these arguments and affirm substantially for the reasons set forth by Judge Armstrong in her comprehensive and thoughtful written opinion. Judge Armstrong properly concluded that even though a restaurant is a permitted use in North Wildwood's general business district, the addition of a restaurant to the existing nonconforming motel would enhance the nonconforming use. As a result, the judge correctly determined, as the zoning board had found, that plaintiff's current proposal required application for a variance.
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