July 5, 2012
VIAMARE, LLC AND KUN WEN CHEN, PLAINTIFFS-APPELLANTS,
BOROUGH OF SOMERVILLE AND FRANK VUOSO, DEFENDANTS-RESPONDENTS.
VIAMARE, L.L.C., PLAINTIFF-APPELLANT,
BOROUGH OF SOMERVILLE AND BOARD OF ADJUSTMENT OF THE BOROUGH OF SOMERVILLE, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket Nos. L-1547-09 and L-1727-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 6, 2012 -
Before Judges Graves, J. N. Harris, and Koblitz.
Plaintiffs Viamare, LLC (Viamare) and Kun Wen Chun (Chun) are, respectively, the landlord and a prospective tenant of commercial property located in the Borough of Somerville. They appeal from the Law Division's July 21, 2011 order that "denied" their consolidated actions in lieu of prerogative writs and "affirmed" certain determinations of the Somerville Board of Adjustment. We reverse and remand for further proceedings.
In 2005, Viamare applied to the Board of Adjustment for variances and other land use approvals to develop a tract consisting of two adjacent lots, one for residential use (Lot 16), and the other for commercial use (Lot 17).*fn1 This appeal concerns only Lot 17 located in Somerville's B-4 zoning district, which permits neighborhood retail, service, office, and mixed uses.*fn2
Viamare proposed that it would redevelop an existing "derelict structure" -- a motor vehicle service station building -- on Lot 17 for a "commercial/retail building" to be used for "commercial/retail services." After five public hearings spanning more than one year, the Board of Adjustment granted Viamare's application subject to twenty-five precisely enumerated conditions in its August 16, 2006 memorializing resolution.*fn3 The linchpin condition, for purposes of this appeal, was that "[Viamare] shall be bound by all exhibits introduced, all representations made and all testimony given before the Board [of Adjustment] at its meetings . . . ." The Board of Adjustment now contends that one of Viamare's representations was that the "commercial/retail building" would never be used for restaurant use.
Approximately two-and-one-half years later Viamare applied to Somerville's Department of Community Development for permission to establish and operate two food establishments*fn4 -- a pizzeria and a Chinese food take-out establishment -- in the now redeveloped structure on Lot 17. Notwithstanding that these businesses were permitted principal uses, defendant Frank Vuoso, Zoning Official, denied the application on the ground that a parking space variance was required.
Viamare duly applied for the variance (and for amended site plan approval) with the Board of Adjustment. It proposed that the pizzeria would limit itself to twenty-four seats. The take-out establishment would provide no seating for dining. The variance application's final arrangement sought permission for the proposed businesses where the site was deficient by nine parking spaces. After three hearings, the Board of Adjustment denied the application, focusing primarily upon the nature of the proposed uses, rather than upon the impact of a shortage of parking spaces. For example, the Board of Adjustment's August 19, 2009 memorializing resolution*fn5 stated:
The Board was concerned about the change in the type of tenants for this building. The original site plan called for retail tenants and not food establishments. Food tenants require roof top units, venting, kitchen installations which were not considered. In addition, the increased parking demand associated with the restaurants is also a concern for the Board.
As restaurant uses were not proposed, the Board did not address the impact a restaurant or restaurants would have on the surrounding neighborhood.
The use of this building for restaurants will have a negative impact on William Street due to the proximity of the building to William Street, the cooking odors, the potential that the spaces along William Street will be utilized as a rear entrance for deliveries, and the Board concludes that this will result in cooking and wait staff using the rear entrances along William Street as a break area or hang out.
Viamare consequently filed an action in lieu of prerogative writs in the Law Division (Docket No. L-1727-09) challenging the Board of Adjustment's action.
Shortly after the Board of Adjustment voted to deny the variance application (but before the decision was memorialized), Chun applied to Vuoso for permission to operate an "Asian take out establishment" in Viamare's building on Lot 17. On July 2, 2009, Vuoso denied permission, writing:
The Board of Adjustment approved this site plan/subdivision application on the representation and testimony from Viamare LLC and its professionals that the building would be used for general retail (as evidenced by Viamare LLC and its professionals designing the parking lot to conform with the parking requirements of general retail). Uses other than general retail require Board of Adjustment approval.
Instead of appealing Vuoso's determination to the Board of Adjustment pursuant to N.J.S.A. 40:55D-72(a), Viamare and Chun filed an action in lieu of prerogative writs in the Law Division (Docket No. L-1547-09) challenging the zoning official's action.
In January 2010, the pending actions in lieu of prerogative writs were consolidated. However, the Law Division stayed prosecution of the matter until "the Plaintiff [sic] has exhausted its administrative remedies by appealing the Somerville Zoning Officer's decision to the Somerville Zoning Board of Adjustment." Although there is no written order expressly remanding the matter to the Board of Adjustment, Viamare returned to the Board of Adjustment for a hearing on April 21, 2010.
Viamare argued that what was now being called a "Chinese take out" food establishment was not a restaurant under Somerville's zoning ordinance because it did not "provide seating or food consumption on site." This contention became moot when the Board of Adjustment "acknowledge[d] that restaurants and take out restaurants are permitted in the [B-4] [z]one." In affirming Vuoso's determination, the Board of Adjustment determined that:
[I]n this instance, the Board [of Adjustment] relied upon the statements of the applicant, that these uses would not be made of this approval to permit the applicant, to receive all of the relief it sought including the subdivision [of Lot 16], the [floor area ratio variance] request and the right to work with the existing building although it was in a bad location on the site. The Board finds that the applicant is attempting to improve the benefit of its bargain at the expense of its William Street neighbors.
In addition, the Board of Adjustment held that "before a restaurant establishment could go on this site, the Board [of Adjustment] would have to consider the impact of parking, the adequacy of the dumpster, grease storage, and kitchen exhaust. This could only be done by means of a site plan." Accordingly, the Board of Adjustment found Vuoso to be "correct . . . first, because a site plan was required and second, the addition of a restaurant at this particular site would require an amendment to the site plan and is not consistent with the representations made to the Board at the time of the initial approval."
In July 2011, trial of the consolidated actions took place. The court initially ruled that a fast food take out is not a 'change of use' from general retail, such as would require amended site plan or variance approval.
Such a use is both a permitted use in the zone and is specifically included within the definition of retail as set forth in [Somerville's Zoning] Code.
Then the court found that the Board of Adjustment did not err in refusing to permit such use because [t]he record is clear that if [Viamare] sought restaurants or take out the Board [of Adjustment] would have required the existing building to be torn down. The Board [of Adjustment] would have required a different configuration of buildings and parking.
There is a good chance the Board [of Adjustment] would have removed one of the single family homes from the adjacent lot.
The Plaintiff is bound to [its] representations that the Property would be used as retail.
Next, the court turned to the Board of Adjustment's denial of the parking space variance, noting that the Board of Adjustment legitimately rejected Viamare's expert opinions -- one from a traffic engineer, the other from a civil engineer -- that suggested the proposed (deficient) number of parking spaces would accommodate the uses on the site because their peak hours of operation differed from those of the other tenant, a bank. However, the court concluded that "[t]he denial was based on the Board [of Adjustment's] belief that Plaintiff represented that the Property would be used for retail."
Finding -- as to both aspects of the matter -- that the Board of Adjustment "ultimately reached a decision supported by facts and [the] Municipal Land Use Law," and "Plaintiff . . . failed to meet its burden," the court held that "Plaintiff's action is DENIED." This appeal followed.
"[W]hen reviewing the decision of a trial court that has reviewed municipal action, [this court is] bound by the same standards as was the trial court." Fallone Props., L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004); see also CBS Outdoor, Inc. v. Bor. of Lebanon Plan. Bd., 414 N.J. Super. 563, 577 (App. Div. 2010) (applying the same standard of review). Thus, our task on appeal is limited to the substantial evidence standard. See Bressman v. Gash, 131 N.J. 517, 529 (1993) (holding that appellate courts are bound by the same scope of review as the Law Division and should defer to the local land-use agency's broad discretion).
It is a well-settled principle of land use law that "a decision of a zoning board may be set aside only when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor, 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). "[P]ublic bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adj. of Wall Twp., 184 N.J. 562, 597 (2005). Therefore, "[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.
On the other hand, when we consider pure legal conclusions of local land use agents and agencies, we engage in a de novo review. Fallone Props., L.L.C., supra, 369 N.J. Super. at 561; see also Wyzykowski v. Rizas, 132 N.J. 509, 518-20 (l993) (holding the local board's determination was not entitled to a presumption of validity because the case involved an interpretation of the zoning ordinance to determine whether a certain use fell within the definition of "accessory use"). De novo review is warranted because local land use boards have "no peculiar skill superior to the courts" regarding purely legal matters. Jantausch v. Bor. of Verona, 41 N.J. Super. 89, 96 (Law Div. 1956), aff'd, 24 N.J. 326 (1957); see also Grancagnola v. Planning Bd. of Verona, 221 N.J. Super. 71, 75-76, n.5 (App. Div. 1987) (holding that "any agency's determination of a question of law is subject to de novo review in the courts"). Furthermore, "a trial court's interpretation of the law and legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We start with the Board of Adjustment's 2006 approval and the 2009 administrative gloss placed upon it. Essentially, the Board of Adjustment treated the earlier proceedings as a species of contract-creation by referring to Viamare's later requests as "attempting to improve the benefit of its bargain." This treatment was misguided, but even if the analogy were appropriate, the Board of Adjustment misapplied the law. Moreover, to the extent that the Board of Adjustment claims equitable principles estop Viamare from establishing a restaurant use on its property, there is no support for this position in the record.
Detailed findings of facts and conclusions of law are to be set forth in board resolutions, for both grants of applications and denials. New York SMSA, L.P. v. Bd. of Adj. of Twp. of Weehawken, 370 N.J. Super. 319, 334 (App. Div. 2004). The resolution must accurately reflect all the findings and conclusions of the Board of Adjustment. Scully-Bozarth Post 1817 of the VFW v. Planning Bd. of City of Burlington, 362 N.J. Super. 296, 312 (App. Div.), certif. denied, 178 N.J. 34 (2003). Here, the Board of Adjustment's relevant expression was that "[Viamare] shall be bound by all exhibits introduced, all representations made and all testimony given before the Board [of Adjustment] at its meetings . . . ." The Board of Adjustment also sought to hold Viamare to a purported representation to not operate restaurants on the premises. We have scoured the record to discover where such a representation was expressly or impliedly made by Viamare to no avail.
The Board of Adjustment knew (or should have known) that restaurants were permitted uses in the B-4 zoning district. It took no steps whatsoever to expressly truncate Viamare's entitlement to the benefits of Somerville's zoning ordinance. Nevertheless, the following exchange, from the October 19, 2005 hearing, is the sole basis of the Board of Adjustment's argument that a representation of no restaurant use was made on behalf of Viamare:
UNIDENTIFIED SPEAKER: While assuming most of the tenants will be that (indiscernible) approved for the B-4 zone. [VIAMARE'S ATTORNEY]: Well, I think he [sic] wants to put . . . whatever is permitted, but we also realize that depending upon the use; that could affect the parking.
FRANK VUOSO: Right.
[VIAMARE'S ATTORNEY]: And, so, therefore, that has to be addressed at that time.
[VIAMARE'S ATTORNEY]: . . . If he's [sic] going to come up with a use that's going to require more parking than that's being provided; we realize that can happen. But at the moment he [sic] doesn't know.
KEVIN GORA: What would that use be Frank? FRANK VUOSO: A restaurant, a doctor's office.
This passage fails to support the Board of Adjustment's contention. Rather, it demonstrates that Viamare preserved its right to "put whatever, whatever is permitted" on the property and confirms that the Board of Adjustment was made aware of that by its zoning officer.
Nothing in the record of the proceedings from the initial application indicates Viamare's knowing abandonment or waiver of the right to establish and operate the permitted principal use of a restaurant on the property, subject only to whether such use changed the parking space complement approved by the Board of Adjustment. Moreover, the Board of Adjustment's 2009 after-the-fact rationale for excluding restaurants is neither sustained by the facts nor upheld by the law. Indeed, it smacks of a de facto rezoning -- an arrogation of the authority of the governing body, which by its zoning ordinance, expressly contemplated restaurants as one of many neighborhood retail, service, office, and mixed uses in the B-4 zoning district.
See, e.g., Twp. of Dover v. Bd. of Adj. of Dover, 158 N.J. Super. 401, 409 (App. Div. 1978).
On appeal, the Board of Adjustment relies upon Fieramosca v. Twp. of Barnegat, 335 N.J. Super. 526, 534 (Law Div. 2000), which, in relevant part, held the following:
Certainly, in those instances in which there is no question that the board intended the condition to be imposed and that the applicant was aware of it, the condition should be enforceable. In fact, our Appellate Division has noted that while a resolution is evidential of what was considered at the hearing, it is not determinative. Sherman v. Harvey Cedars Bd. of Adj., 242 N.J. Super. 421, 430 (App. Div. 1990). As the Sherman court said, "[t]he record is the best evidence of what the board considered and decided". Id. at 430, (citing Allied Realty v. Upper Saddle River, 221 N.J. Super. 407, 415-16 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988); Orloski v. Bor. of Ship Bottom, 226 N.J. Super. 666, 679 (Law Div. 1988)). Furthermore, there is no question that the Board would not have approved the application in 1996 without having resolved the drainage issue and, as this court has previously determined, without imposing the obligation of the pipe installation on the applicants. In short, the condition was an integral part of the plaintiffs' approval.
Fieramosca actually fortifies Viamare's stance. The record presented to us neither indicates "that the [B]oard [of Adjustment] intended the condition to be imposed and that the applicant was aware of it" in 2006 nor can it be fairly argued that "the Board [of Adjustment] would not have approved the application in  without having resolved the [use] issue." Ibid. The most that can be said is that almost three years after the fact, the Board of Adjustment had second thoughts about granting the initial development application, long after Viamare relied upon the Board of Adjustment's approval without limitation on the property's permitted uses.
The Board of Adjustment also finds no solace in its other cited cases: State v. Farmland-Fair Lawn Dairies, Inc., 70 N.J. Super. 19 (App. Div. 1961), certif. denied, 38 N.J. 301 (1962) and Park Center at Route 35, Inc. v. Zoning Bd. of Adjustment of Township of Woodbridge, 365 N.J. Super. 284 (App. Div. 2004). In Farmland-Fair Lawn, we recognized that local land use agencies have the authority to tailor variances with the imposition of reasonable conditions, a rather unremarkable principle. Here, the record is bereft of indicia that limiting permitted principal uses in the B-4 zoning district was part of the Board of Adjustment's fine-tuning. In Park Center, supra, 365 N.J. Super. at 287, we agreed that Fieramosca correctly espoused the governing principles of law, but as noted, Fieramosca only supports Viamare's arguments.
Reading the record in its entirety -- at least to the extent provided to us by the parties in their limited appellate appendices -- we have no hesitation in concluding that nothing appears that would warrant the de facto amendment of Somerville's zoning ordinance vis-a-vis Viamare's property. The Board of Adjustment's validation of Vuoso's denial of the permit was erroneous.
Next, we turn to the parking space variance. Although our review of this aspect of the Board of Adjustment's action commands that we grant due deference to its fact-based decision-making, D. Lobi Enterprises, Inc. v. Planning/Zoning Board of Borough of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009), we cannot help but be struck by the same observation made by the trial court: "The denial was based on the Board [of Adjustment's] belief that Plaintiff represented that the Property would be used for retail." The Board of Adjustment's misguided determination infected all aspects of its processing of Viamare's parking space variance application. Indeed, the memorializing resolution mentions land use issues related to the deficient parking spaces only twice: first, when the Board declared that it "disagreed" with the parking study conducted by Viamare's traffic expert and second, when the Board expressed that "the increased parking demand associated with the restaurants is also a concern for the Board."
Ultimately, because the Board of Adjustment was focused on the wrong issue -- the nature of the proposed use rather than the proposed variance -- and we lack confidence that it properly decided the application pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, we remand the parking space variance application to the Board of Adjustment for an entirely new proceeding.
In summary, we reverse the Law Division and the Board of Adjustment and determine that Vuoso should have granted appropriate permission to establish and operate the "Chinese take out" food establishment at Viamare's property, without the necessity of site plan approval because, as the Law Division properly found, a fast food take out is not a 'change of use' from general retail, such as would require amended site plan or variance approval.
Such a use is both a permitted use in the zone and is specifically included within the definition of retail as set forth in [Somerville's Zoning] Code.
Accordingly, we remand the matter for the entry of a judgment requiring the issuance of an appropriate permit, subject to all other applicable municipal and statutory requirements.
We also reverse and remand the parking space variance denial for an entirely new proceeding before the Board of Adjustment. Viamare shall initiate such proceeding by filing a new application for relief pursuant to the MLUL.
Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.