On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3077-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
In this appeal, plaintiffs, TR Liquor, LLC (TR) and East Windsor Group, LLC (East Windsor) (collectively, plaintiffs), appeal from the trial court order upholding the action of defendant, Township of Toms River Planning Board (the Planning Board), approving the construction of a hotel and stand-alone restaurant by defendant, Lake Real Estate, LLC (Lake), which would include the serving of alcoholic beverages.
Plaintiffs, who are competitors of Lake, objected to the proposed project on the basis that a bar was not a permitted use under the ordinance and that the notice requirements under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, were violated. Judge Craig Wellerson, in dismissing plaintiffs' complaint, adopted the Township of Toms River Zoning Board of Adjustment's (the Zoning Board's) determinations that the bar would be an acceptable accessory use for the proposed project, and having two principal uses on one property was permitted. We affirm.
The proposed hotel and restaurant property (the property) is located in the O-15 Office Zone of the Township of Toms River (Township). Until 2008, the Township General Code listed the following as permitted uses in the O-15 Office Zone: offices for members of a recognized profession, offices of a business or public utility not involving the retail sale of goods (though an office building over 5000 square feet could utilize a portion of the first floor for retail use ancillary to the office use), banks and financial institutions, medical and dental clinics, essential services, community residences for the developmentally disabled and victims of domestic violence, child-care centers, adult-care centers, private and parochial schools not operated for profit, and schools for vocational instruction.
On September 27, 2007, Lake agreed to purchase the property from the prior owners, conditioned upon obtaining approval for its proposal to build a 125-room Marriot Courtyard hotel and a 6284-square-foot free-standing, full-service restaurant that would contain a bar area and serve alcohol. The proposed hotel and stand-alone restaurant were non-conforming uses, requiring Lake to obtain use variances. Lake applied for the variances but withdrew its application after the Township Council passed Ordinance 4164-08, and later Ordinance 4183-09, adding hotels and stand-alone, full-service restaurants, respectively, as permitted uses in the zone.*fn1
Based upon the two new ordinances, Lake no longer needed use variances for the proposed projects. It therefore withdrew its pending application before the Zoning Board and, on March 9, 2009, submitted a new application directly to the Planning Board, seeking approval for the planned hotel and stand-alone restaurant.
The Planning Board held three public hearings concerning the application in May and June of 2009. Plaintiffs attended all three meetings and testified in opposition to Lake's application. They asserted the Planning Board did not have jurisdiction because it planned to construct and operate a bar, which is not a permitted use within the O-15 Office Zone, and also failed to disclose that the project included a bar or other drinking establishment in its application.
The Planning Board determined it had jurisdiction over the application and proceeded with the hearings. Lake presented multiple witnesses, including a professional planner, architect, and traffic engineer who addressed the hotel's compliance with the new conditional use requirements under the ordinance, the restaurant as a permitted use, the sustainability of the hotel, and the eligibility of liquor licenses for the hotel and restaurant. Plaintiffs produced a professional planner and traffic engineer who opposed the application. The Board also considered the review letters from its professionals, two engineers.
After considering the testimony of the applicants, objectors and neighboring residents, as well as reviewing the proposed plans and exhibits, and finally, hearing the arguments of counsel, the Planning Board, on July 15, 2009, passed a resolution granting preliminary and final major site plan approval to Lake for the proposed project. In its findings, the Planning Board expressly found, after crediting the testimony of the applicant's planner and the Township planner that "there is no prohibition in the Township ordinance from having multiple commercial uses on a single site" and that "[s]ervice of alcohol is a customary accessory use to a hotel/restaurant."
On August 18, 2009, plaintiffs filed a complaint in lieu of prerogative writs seeking an order reversing the Planning Board's action approving Lake's proposal. Prior to trial, plaintiffs moved for summary judgment, urging that the notice requirements mandated under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, had not been met. Judge Wellerson denied the motion, finding that he was "satisfied that the notice that was provided was adequate, fair, just and provided simple, direct and clear indication as to what was intended to be constructed[.]"
Trial commenced on March 23, 2010, but the proceedings were suspended when the court ordered a limited remand to the Zoning Board to determine whether (1) two principal permitted uses in separate buildings were permitted on a single lot as set forth in Lake's application, and (2) the subject zone permitted the sale and consumption of alcoholic beverages in a restaurant as an accessory use to a permitted principal use, provided it obtains a liquor license.
The Zoning Board held a hearing on September 9, 2010, during which Ronald L. Rosetto, a licensed commercial real estate developer, testified that there were "many examples" of multiple uses on a single lot, and he knew of several restaurants in Toms River located in zones not explicitly permitting bars that served alcohol. On September 23, 2010, the Zoning Board issued a resolution, determining the inclusion of alcohol for on-premises consumption, construction of a bar area containing 50 bar stools incidental to the stand[-]alone, full-service, sit[-]down restaurant, on [Lake's] premises, would, in fact, be an accessory use to the principal use of a stand[-]alone, full-service, sit[-] down restaurant. [Lake's] proposed site for two principal permitted uses of a hotel and stand[-]alone restaurant would be permitted at [Lake's] site in multiple buildings and would be specifically permitted in the Toms River Township O-15 Zone.
When the matter returned to Judge Wellerson, he permitted oral argument, after which he rendered an oral opinion in which he concluded the "determination of the Planning Board, in its initial grant, was appropriate." He concluded the Planning Board resolution granting Lake's application was not arbitrary or capricious and was properly based upon the evidence presented before the Planning Board. The judge entered an order dismissing plaintiffs' complaint, and the ensuing appeal followed.
Appellants raise the following issues ...