July 3, 2012
ANTHONY VENTRE, PLAINTIFF-APPELLANT,
BOROUGH OF RIDGEFIELD PLANNING BOARD AND BOROUGH OF RIDGEFIELD, C & Y BERGEN, LLC, DEFENDANTS-RESPONDENTS, AND MALBONG CHOI AND KYUNG SAM YANG, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1730-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2012 -
Before Judges Alvarez and Skillman.
In this action in lieu of prerogative writs, plaintiff Anthony Ventre appeals from an order of the Law Division dismissing his complaint and affirming the decision of defendant Borough of Ridgefield Planning Board (Board), "granting site plan approval with waivers and variances" to defendant C & Y Bergen, LLC (C & Y).
On appeal, Ventre argues that the trial court erred because (1) the Board lacked jurisdiction to grant site plan approval and variances; (2) the Board granted waivers when variances were required; (3) it did not admit into evidence Ventre's expert report or testimony; and (4) it did not find that the Board's grant of variances was improper. After reviewing the record in light of the contentions advanced on appeal, we reverse the grant of site plan approval and remand for further proceedings before the Board.
Ventre's property adjoins land owned by C & Y in a commercial zone of the Borough of Ridgefield (the Borough). C & Y plans to demolish the residential dwelling now located on the property and replace it with a 4998 square foot, two-story commercial building, with retail space on the first floor, and a dentist's office and professional office on the second.
The Board's seventeen-page December 15, 2009 authorizing resolution summarized C & Y's submissions, including a history of the initial application and subsequent modifications, and the multiple hearings conducted as a result. Over the course of the hearings, C & Y presented the testimony of various expert witnesses, which we summarize. Ventre testified in opposition to the application and cross-examined the witnesses, but did not present expert testimony of his own.
At the September 15, 2009 hearing, Steven Collazuol, C & Y's site plan engineer, explained that even after substantial plan revisions, C & Y still required four variances in order to build on the 10,553 square foot lot: for the front yard setback, lot coverage, landscape requirements, and number of parking spaces. Design waivers were required for parking space length, drive aisle width, the buffer strip, and the creation of several tandem parking spaces. Furthermore, Collazuol had changed the drainage design, providing a retention system by way of a catch basin. He also noted that a revised drainage plan, as well as a soil report, had been forwarded to the Board engineer.
C & Y's traffic and transportation expert, Louis Luglio, testified about "vehicular access to and from the site." He opined that the plan "definitely meets the standards for safety and efficiency . . . ."
In order to align the proposed structure with other office buildings on the street, a setback variance was required. Ken Ochab, C & Y's planner, explained that doing so would, in fact, provide a more "consistent streetscape." He also pointed out that this would leave an "additional rear yard setback[,]" benefiting the residential zone located immediately to the rear of the property. The proposed plan included more landscaping than found on either of the two adjacent properties to the south.
In support of the parking variances, Ochab proffered that retail and office uses peak at different times: retail on the weekend and office during the week. Because of the mixed use, he did not consider the parking shortfall to be critical. There would not be "any substantial negative impact" and the project would in fact "support the commercial zone and . . . enhance the visual environment of Bergen Boulevard . . . ."
Molbong Choi, a principal in C & Y and the dentist who intends to occupy the professional office, agreed to reduce the number of required parking spaces by dedicating only 1300 square feet to the dental office and 1200 square feet for her personal office. She was also willing to reduce the size of the proposed building, asked for the opportunity to revise the plans accordingly, and subsequently did so.
During the hearings, Ventre contended that C & Y's presentation contained inaccuracies regarding coverage, parking, and building height. He claimed that many residents of Bergen Boulevard had concerns about the project, and proposed that the applicant eliminate the retail space entirely.
At the last public hearing on November 17, 2009, Collazuol explained the final revised site plan. The square footage of the proposed structure had been reduced to 4998 square feet. By removing approximately 300 square feet from the second story, five parking spaces could be reconfigured to meet or exceed the required length of twenty-two feet. The front setback was increased from 8.5 feet to 9.2 feet, although a variance was still necessary as the zoning ordinance called for a twenty-foot setback. Based on the proposed tenancy, twenty-three parking spaces were required, but the revised plan included only nineteen. Collazuol reiterated that the applicant sought design waivers for parking space depth, buffer strip, drive aisle width, three tandem parking spaces, and the requirement of a 500-foot radius for the drainage area.
When Ventre asked for a copy of applicant's drainage report at the final hearing, C & Y's counsel responded that Ventre was entitled to obtain one by making the appropriate Open Public Records Act (OPRA) request. After listening to Ventre's detailed statement in opposition, the Board voted five-to-two in favor of the application and issued its formal resolution on December 15, 2009.
The resolution included extensive findings of fact and conclusions of law, and approved the application subject to detailed conditions. The following waivers were granted:
1. Reducing parking space depth from the required twenty feet to eighteen feet.
2. Reducing drive aisle width from the required twenty five feet to 24.2 feet.
3. Reducing minimum buffer strip from the required ten feet to zero and five feet, respectively, subject to installation of a fence.
4. Not requiring 500 foot radius for drainage area.
Variances were also granted allowing:
1. Three tandem parking spaces, for employee use only.
2. Eight to ten-foot setback, consistent with the setback of other buildings on the street.
3. Maximum impervious lot coverage of 90.5%, instead of the required 65%.
4. Landscaped area of 9.3%, instead of the required 20%.
On February 18, 2010, Ventre filed his complaint in lieu of prerogative writs, contending that the Board's site plan approval was arbitrary, capricious, and unreasonable. At the March 11, 2011 Law Division hearing, Ventre argued that the Board lacked the jurisdiction to grant any variances or site plan approval, erred in granting certain variances and waivers, granted waivers when variances should have issued, failed to provide sufficient notice, and failed to make adequate findings of fact and conclusions.
At the Law Division hearing, Ventre sought to exclude applicant's "final drainage report" because it was not submitted ten days or more prior to the final November 19, 2007 public hearing. Ventre also sought to exclude an outline created by Ochab and a letter drafted by the Borough engineer on February 18, 2011, after the adoption of the resolution. The court held that the report was admissible; the Board withdrew its request to have the letter considered as evidence. The judge did not rule on the outline.
In rendering his decision from the bench, the trial judge relied upon the expert testimony presented by the applicant. Because the proposed development was consistent with zoning in the area, and required, in his opinion, "some relatively modest waivers and variances," he determined that the Board had a sufficient basis for its decision granting approval. The judge further opined that the record adequately supported the Board's grant of site plan approval, and there was nothing arbitrary, capricious, or unreasonable about its decision. No supplemental written decision was rendered. The trial judge's March 24, 2011 order affirmed the Board's approval of C & Y's site plan, with the waivers and variances we have described, and dismissed Ventre's complaint.
On appeal, Ventre contends:
The Trial Court Erred In Not Finding Ridgefield Planning Board Lacked Jurisdiction To Grant Site Plan Approval and Variance. Defendant Applicant Required a 'd' Height Variance
The Trial Court Erred In Not Reversing Ridgefield Planning Board Grant of Design Waivers "exceptions" For Tandem Parking and Buffer Strip. Variances Required, And/Or Were Beyond Planning Board's Authority
The Trial Court Erred By Not Allowing Plaintiff's Experts' Report And Testimony Into The Record or Remanding To Defendant Board Given The Record Of Prejudice To Plaintiff
The Trial Court Erred In Not Finding That The Ridgefield Planning Board['s] Grant of Variances Under [N.J.S.A.] 40:55D-70[(c)](2) was Improper
We address Ventre's points in the order presented.
I Ventre asserts that the Board lacked jurisdiction to grant site plan approval and variances, because, before they issued, the applicant had to obtain a height variance from the Zoning Board. Despite multiple appearances at the Board's hearings on the application, however, Ventre never presented any competent evidence*fn1 that the proposed structure will exceed the area's thirty-foot height restriction. To the contrary, the Board planner, in a May 13, 2009, review letter, specified that the height of the structure would be 27.4 feet, and the Board engineer, in his November 17, 2009, letter, noted that the proposed structure would be two stories, thirty feet in height. The applicant's own engineer testified the proposed building height was 29.6 feet. The Board granted approval only for a building thirty feet in height. Therefore the record does not support Ventre's point.
Ventre also claims that the Planning Board erred by granting waivers, as opposed to variances, for the tandem parking and the buffer strip. He contends that since the zoning ordinance establishes the requirements, a variance is necessary. We agree.
"Relief from the provisions of a zoning ordinance must be sought under the variance procedure." Wawa Food Mkt. v. Planning Bd., 227 N.J. Super. 29, 31 (App. Div.), certif. denied, 114 N.J. 299 (1988); see also Commercial Realty & Res. Corp. v. First Atl. Props. Co., 235 N.J. Super. 577, 589 (App. Div. 1989), modified on other grounds, 122 N.J. 546 (1991).
The Borough's off-street parking regulation is embodied in Ridgefield, New Jersey Ordinance § 390-19(F) (Feb. 24, 2003). This ordinance states that "[i]t shall be unlawful for the owner . . . of property to take any action which effectively precludes, prohibits, obstructs or otherwise has the effect of substantially diminishing the use and availability of the off-street parking which is required under this section . . . . " Ibid. Under Ridgefield, New Jersey Ordinance § 390-39.3(H)(8) (May 28, 2002), parking standards in the commercial zone, where this property is located, shall be "no less than those specified in the off-street parking requirements of the Borough . . . ." These ordinances were understood by the Board to prohibit tandem parking. Moreover, the Board engineer, in her May 13, 2009 letter, acknowledged that tandem parking spaces create potential parking hazards due to the inevitability of blocked cars. Ridgefield, New Jersey Ordinance § 390-39.3(M) (May 28, 2002) explicitly requires a buffer strip of at least ten feet for any lot in a commercial zone adjacent to a lot in a residential district. The site plan failed to conform to the ordinances because it contained three tandem parking spaces and buffer strips of zero and five feet, respectively.
Ventre did not object to the issuance of waivers during the Board hearings, although he did argue the point before the Law Division judge. See Kramer v. Bd. of Adj., 45 N.J. 268, 289 (1965). Waivers may be sought from site plan ordinances pursuant to N.J.S.A. 40:55D-51(b). See Wawa, supra, 227 N.J. Super. at 34; Cox & Koenig, supra, § 15-8(b). But where an actual deviation from a zoning ordinance is sought, a waiver cannot substitute for a variance. Wawa, supra, 227 N.J. Super. at 34-36.
Here, C & Y's proposed tandem parking and reduced buffer strip necessitated variances, not waivers, because they were a clear deviation from zoning ordinances. Because the waivers improperly issued, C & Y must return to the Board for variances as to tandem parking and the buffer strip. Because additional variances are required, site plan approval must be considered anew. See id. at 31.
Ventre also contends the trial court erred by refusing to admit his expert's report into evidence or to allow his expert to testify. The court barred the expert because Ventre did not proffer him as a witness during the course of Board hearings.
Elaborating on the issue, Ventre adds that despite refusing him the opportunity to present testimony not considered by the Board, the trial court admitted into evidence a letter dated February 18, 2011, provided by the Borough. Our review of the record indicates, however, that as a result of Ventre's objection, the applicant withdrew the letter, and therefore the court did not consider it.
On appeal of planning board decisions, a court is limited to the record created during the hearings. Kramer, supra, 45 N.J. at 289. Hence the judge did not err by excluding Ventre's expert reports because they were not presented to the Board.
"[T]he record made before the Board is the record upon which the correctness of the Board's action must be determined . . . ." Ibid. The sole issue before the trial court is abuse of discretion by the Board, not the wisdom of its action. See D. Lobi Ent., Inc v. Planning/Zoning Bd. of Borough of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009). And the decision must be based on the same evidence considered by the Board.
Ventre seeks a remand on the basis that C & Y's final drainage report and the Johnson Soil Company report were not available ten days prior to the Planning Board hearings.
N.J.S.A. 40:55D-10(b) states that "[a]ny maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least 10 days before the date of the hearing . . . ." This accords with self-evident notions of fairness, as interested parties should be able to familiarize themselves with an application in sufficient time to prepare to meaningfully participate in hearings.
Ventre asserts that because the two reports were not available, he did not have sufficient time in which to obtain his own expert to present to the Board to testify about storm water runoff from the project. This, he argues, prejudiced his ability to adequately present his position. We agree. It was improper for the applicant to deny Ventre access to those reports, pursuant to N.J.S.A. 40:55D-10(b). Copies should have been provided on a timely basis.
Moreover, at the November 15, 2009, hearing, Ventre questioned Collazuol about the drainage system and did not receive an adequate response. After indicating that he did "want to bore the Board with the calculations[,]" Collazuol merely said that there would be a zero increase in runoff, and that "the drainage system is designed to fully provide for what's there." Collazuol acknowledged that a percolation test and a boring test were conducted, and told Ventre he could make the appropriate OPRA requests for the reports. No further information was provided about the drainage system, or the content of the reports. A remand is therefore necessary in order for the applicant to establish that the drainage system conforms to the zoning ordinance, and for Ventre to have the information he was entitled to by statute.
We do not reach Ventre's final point that the grant of site plan approval and variances was improper overall, since we reverse due to the Board's issuance of waivers for the buffer strip and tandem parking, and the applicant's failure to provide the drainage and soil reports in a timely manner or create a sufficient record as to the drainage system. Since variances, and reconsideration of the drainage issue, are necessary, site plan approval must be considered anew.
Reversed and remanded to the Board for further proceedings.