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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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