August 3, 2012
TR LIQUOR, LLC, AND EAST WINDSOR GROUP, LLC, PLAINTIFFS-APPELLANTS,
TOWNSHIP OF TOMS RIVER PLANNING BOARD, LAKE REAL ESTATE, LLC, AND TOWNSHIP OF TOMS RIVER ZONING BOARD OF ADJUSTMENT, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 7, 2011
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 on appeal:
THE TRIAL COURT'S FAILURE TO ANALYZE WHETHER THE BAR USE IS PERMITTED IN THE O-15 ZONE OR WHETHER THE BAR USE IS ACCESSORY TO THE SECOND RESTAURANT AND FURTHER RULING THAT THE SECOND RESTAURANT IS INCIDENTAL TO THE HOTEL IS CONTRARY TO THE RECORD, AN ABANDONMENT OF THE TRIAL COURT'S DUTY TO C[O]NDUCT A "DE NOVO" REVIEW, AND VIOLATES THE PLAIN LANGUAGE OF THE ORDINANCE THAT BARS AND DRINKING ESTABLISHMENTS ARE NOT PERMITTED USES IN TOMS RIVER TOWNSHIP'S O-15 OFFICE ZONE.
A. BARS ARE PROHIBITED IN THE O-15 OFFICE ZONE[.]
B. THE PROPOSED FREE-STANDING RESTAURANT WITH ITS SPORTS BAR IS CLEARLY NOT A USE INCIDENTAL TO THE PRIMARY OR PRINCIPAL HOTEL USE.
C. THE SPORTS BAR IN THE SECOND RESTAURANT IS NOT A PERMITTED ACCESSORY USE IN THE [O]-15 ZONE.
APPLICANT'S NOTICE WAS SUBSTANTIVELY DEFICIENT BECAUSE IT DID NOT IDENTIFY THE USES PROPOSED FOR THE TWO BUILDINGS OR THAT A CONDITIONAL USE PERMIT WAS REQUIRED.
TWO SEPARATE PRINCIPAL USES ARE NOT PERMITTED ON [THE] SAME LOT WITHOUT THE NECESSITY OF A VARIANCE.
"The standard of review used by courts in any challenge to a decision by a planning or zoning board is very limited." Davis v. Planning Bd. of Somers Point, 327 N.J. Super. 535, 542 (App. Div. 2000). "In reviewing a determination by a local agency, the trial judge, as does an appellate court, accords due deference to the local agency's broad discretion in planning and zoning matters and reverses a local agency's decision only if arbitrary, capricious, or unreasonable." Pullen v. Twp. of S. Plainfield Planning Bd., 291 N.J. Super. 1, 6 (App. Div. 1996). A board's decision should be sustained if it "is founded on adequate evidence," Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990), and we give deference to a board's findings of fact, because of its particularized knowledge of local conditions, Jock v. Zoning Bd. of Adj. of Wall, 184 N.J. 562, 597 (2005).
"Although courts defer to the expertise of municipal agencies in reviewing discretionary exercises of an agency's statutory powers, the interpretation of an ordinance is primarily a question of law." Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). Therefore, "[a] board's interpretation of an ordinance is not entitled to any particular deference and is reviewed de novo because 'the interpretation of an ordinance is a purely legal matter as to which the administrative agency has no particular skill superior to the courts.'" Reich v. Borough of Fort Lee Zoning Bd. of Adjustment, 414 N.J. Super. 483, 499 (App. Div. 2010) (quoting Jantausch v. Borough of Verona, 41 N.J. Super. 89, 96 (Law Div. 1956), aff'd, 24 N.J. 326 (1957)). The Appellate Division is "[b]ound by the same scope of review as the Law Division" in these situations. Bressman v. Gash, 131 N.J. 517, 529 (1993). Therefore, we accord deference to the Planning Board and Zoning Board's factual determinations and review legal determinations de novo.
Based upon application of these standards, we conclude the Planning Board's findings, affirmed by Judge Wellerson, are supported by the record and discern no basis to disturb those findings. Additionally, we agree that the notice requirements under the MLUL were satisfied. Accordingly, the grant of approval was neither arbitrary, capricious, or unreasonable, nor an abuse of discretion. Burbridge, supra, 117 N.J. at 385; Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 560 (App. Div. 2004); Jayber, Inc. v. Mun. Council of W. Orange, 238 N.J. Super. 165, 173 (App. Div.), certif. denied, 122 N.J. 142 (1990).
Appellants contend the court erred in concluding that the serving of alcohol and inclusion of a bar in the hotel and stand-alone restaurant are accessory or incidental uses. We disagree.
"In construing the language of an ordinance, it is well established that courts apply the same rules of judicial construction as they apply when construing statutes." AMN, Inc. of N.J. v. S. Brunswick Rent Leveling Bd., 93 N.J. 518, 524-25 (1983) (citations omitted). "The first step in any statutory analysis is to examine the statute's plain language as the clearest indication of its meaning. Where the statutory language is 'clear and unambiguous,' courts will implement the statute as written without resort to judicial interpretation, rules of construction, or extrinsic matters." Bergen Commer. Bank v. Sisler, 157 N.J. 188, 202 (1999) (citations omitted). "However, the meaning of a statute is not self-evident where varying interpretations are plausible." Nat'l Waste Recycling, Inc. v. Middlesex Cnty. Improvement Auth., 150 N.J. 209, 223 (1997). When ambiguity exists, "a court's duty in construing a statute is to determine the intent of the Legislature." AMN, supra, 93 N.J. at 525. "The court should not write in an additional qualification which the Legislature pointedly omitted in drafting its own enactment." Craster v. Bd. of Comm'rs, 9 N.J. 225, 230 (1952). Finally, "[a]n agency's construction of a statute over a period of years without legislative interference will generally be granted great weight as evidence of its conformity with the legislative intent." Last Chance Dev. P'ship v. Kean, 119 N.J. 425, 434 (1990).
Ordinance 4164-08 and Ordinance 4183-09 added hotels/motels and full-service restaurants as conditional uses in the O-15 Office Zone. It is undisputed that bars are generally prohibited in the O-15 Office Zone. Plaintiffs rely upon L.I.M.A. Partners v. Borough of Northvale, 219 N.J. Super. 512, 518-19 (App. Div. 1987), to support their contention that where a use is not expressly provided for in an ordinance, it is prohibited. They also note that other zones in Toms River, like the Village Business and Regional Commercial Zones, specifically list bars as permitted uses.
Plaintiffs are correct that the two new ordinances only added hotels and restaurants to the existing list of permitted uses in the O-15 Office Zone, which never included bars. They therefore maintain bars are prohibited in the O-15 Office Zone based upon the clear language of the land use code and accompanying ordinances.
Judge Wellerson observed, "[i]f you characterize the building as a tavern, the ordinance doesn't permit that," but here, Lake's application identified a full-service restaurant as the proposed use. The testimony before the Planning Board established that there were full-service restaurants in the Township located in areas not zoned for bars but that these restaurants nonetheless served alcohol. There was no evidence that these restaurants, in serving alcohol, functioned primarily as bars. The record here therefore supports the conclusion that serving alcohol, either in the hotel/restaurant or stand-alone restaurant, would convert those primary restaurant uses into primarily bars.
Plaintiffs assert that the proposed restaurant with a bar is not an accessory use to the primary use of the hotel and, in the alternative, that the bar itself is not an accessory use to the stand-alone, full-service restaurant. An accessory use is "one which is: (1) 'subordinate to' and serves a principal use; (2) located on the same lot as the principal use; and (3) 'customarily incidental' to the principal use." Shim v. Washington Twp. Planning Bd., 298 N.J. Super. 395, 402 (App. Div. 1997). "Where a purported accessory use is neither expressly permitted nor expressly forbidden by the zoning ordinance, a frequently expressed test for permitting or prohibiting that use is whether the principal permitted use logically implies the claimed incidental use." Tanis v. Twp. of Hampton, 306 N.J. Super. 588, 602 (App. Div. 1997).
An accessory use must also incorporate the concept of reasonable relationship with the primary use. "It is not enough that the use be subordinate; it must also be attendant or concomitant." Charlie Brown of Chatham, Inc. v. Bd. of Adjustment of Chatham, 202 N.J. Super. 312, 324 (App. Div. 1985). "Courts have often held that use of the word 'customarily' places a duty on the board or court to determine whether it is usual to maintain the use in question in connection with the primary use." Ibid. "The use must be further scrutinized to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use." Ibid.
"Zoning ordinances frequently permit uses that are accessory or incidental to an expressly permitted use. However, they often do not define those permitted accessory uses, and courts must determine whether the proposed accessory use is 'customarily incidental' to the main activity." Wyzykowski, supra, 132 N.J. at 518. "Zoning ordinances that allow customarily incidental accessory uses to the main activity permit, by implication, any use that logic and reason dictate are necessary or expected in conjunction with the principal use of the property." Id. at 519 (citation and internal quotation marks omitted).
In Shim, cited by both parties, we addressed whether a day care center was an accessory use to the principal use of the property as a church. 298 N.J. Super. at 400. The court rejected the plaintiff's contention that because day care centers were not explicitly listed among a list of accessory permissible uses, the planning board intended to prohibit day care as a use in that zone. Id. at 401. Instead, the court held that "an accessory use need not derive from the express terms of the ordinance; an accessory use is implied as a matter of law as a right which accompanies the principal use." Ibid.
Here, the Township Code, in addition to identifying specific accessory uses permitted in the O-15 Office Zone, also provides that permitted accessory uses include: "Other customary accessory uses and buildings which are clearly incidental to the principal use and building." This omnibus provision reflects the Township's recognition, as we have previously recognized, of the "impracticality of defining in advance every permissible accessory use," because it would be nearly impossible for a governing body to list every specific conceivable use it intends to be permissible. Tanis, supra, 306 N.J. Super. at 601. Judge Wellerson stated the ordinance should have specifically prohibited serving alcohol if it desired to exclude any establishment serving alcohol from the subject zone, and we agree with this reasoning.
Additionally, the fact that a large, stand-alone, full-service restaurant also intends to serve alcohol and have a bar area does not convert its principal use as a restaurant to that of a bar. Of the 200 seats in the establishment, only fifty of them would be located at the bar. Further, the testimony by Rosetto at the Zoning Board hearing demonstrated there are numerous other restaurants in Toms River, located in zones that do not list bars as permitted uses, that serve alcohol and have bars within them. Thus, the record and testimony demonstrate that serving alcohol and a separate bar area within a full-service restaurant have been treated as accessory and customary uses to the principal uses of numerous establishments in the Township, including: Olive Garden, TGIF, Quality Inn Hotel, Holiday Inn, and Benihana, where alcohol is served or a bar area exists notwithstanding that the area is not zoned for bars. Consequently, we are satisfied Judge Wellerson properly concluded that the proposed bar area in the hotel and full-service restaurant is an accessory or incidental use to the principal uses of the hotel and full-service restaurant.
We find no merit to plaintiffs' additional argument that multiple principal uses are not permitted on the same lot without a use variance. Sun Co. v. Zoning Bd. of Adjustment of Avalon, 286 N.J. Super. 440, 446 (App. Div.), certif. denied, 144 N.J. 376 (1996), upon which plaintiffs rely is inapposite. In that case, the court stated "[n]ot all principal uses compliment other principal uses." Although not overturned, this case has been criticized. See 36 New Jersey Practice, Land Use Law § 3.20, at 86-87 (David J. Frizell) (3d ed. 2005) (noting the decision ignores "the common sense of the situation").
Moreover, it is also distinguishable from the factual circumstances here. In Sun Co., the ordinance at issue contained the word "the" before the words "principal use," and the court interpreted that language to reflect an intent that only one principal use exists on each property. 286 N.J. Super. at 447. Here, there is no such language, as the Township Code's definition of accessory uses, states that the purpose of an accessory use must be "incidental to a main use or building . . . ." The word "a" instead of "the" implies there may be more than one principal use on a property within the O-15 Office Zone, and since a hotel and restaurant are both currently permissible principal uses, there is no reason to deny Lake's application simply because there would be two separate principal uses on the property.
Equally unavailing is plaintiffs' contention that it was plain error to have ignored the fact that no one refuted their own planner's opinion that two principal uses on one lot are not permitted. However, as with the testimony of any expert witness, even if not disputed, the Planning Board was "free to accept or to reject the opinions of a planner proffered by an applicant or objector." Hawrylo v. Bd. of Adjustment, 249 N.J. Super. 568, 579 (App. Div. 1991). When reasonably made, the choice to reject such an opinion "'is conclusive on appeal.'"
Shim, supra, 298 N.J. Super. at 412 (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 288 (1965)). As noted previously, while we review a trial judge's legal rulings de novo, here we are in complete agreement with Judge Wellerson's interpretation that two principal uses on the same lot are not prohibited under the Township code.
Next, plaintiffs argue that Lake's public notice of its application was substantively and procedurally deficient because it did not identify the specific uses proposed for the two buildings. Under the MLUL, land use applicants must publish notice of applications "at least 10 days prior to the date of the hearing." N.J.S.A. 40:55D-12. The content of the notice must state the date, time and place of the hearing, the nature of the matters to be considered and . . . an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor's office, and the location and times at which any maps and documents for which approval is sought are available pursuant to subsection 6b. [N.J.S.A. 40:55D-11.]
The purpose of notifying the public of the nature of a land use application is to ensure that members of the general public who may be affected by the nature and character of the proposed development are fairly apprised thereof so that they may make an informed determination as to whether they should participate in the hearing or, at the least, look more closely at the plans and other documents on file. [Perlmart of Lacey, Inc. v. Lacey Twp.
Planning Bd., 295 N.J. Super. 234, 237-238 (App. Div. 1996).]
If the details contained in the public notice are sufficient to comply with the above requirements, a court will not strike down an application for lack of notice. Shakoor Supermarkets, Inc. v. Old Bridge Twp. Planning Bd., 420 N.J. Super. 193, 203 (App. Div.), certif. denied, 208 N.J. 598 (2011).
In Perlmart, the applicant provided public notice in an attempt to gain approvals to build a K-Mart shopping center, but it did not state the proposal was for a K-Mart shopping center or even provide a brief description of the nature of the proposed use. 295 N.J. Super. at 239. We stated applicants must provide a "common sense description of the nature of the application, such that the ordinary layperson could understand its potential impact upon him or her." Ibid. "Where the notice fails to give a reasonably accurate description of this, adjacent landowners may well be misled." Ibid.
Plantiffs urge that we consider Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 339-40 (App. Div. 2008). There, the applicant sought use variances for a senior citizen residential home and a full-service restaurant with a liquor license, which were two principal uses not ordinarily permitted in the subject zone. We determined the applicant's public notice was not sufficient, as it failed to mention it planned to build the home and restaurant, instead only stating it was seeking a non-permitted use that included "retail/office" uses. Id. at 352. We noted "[t]hat generic reference would not reasonably put a neighbor, or an interested resident, on notice that a substantial restaurant was contemplated for the site." Id. at 352-53.
Here, Judge Wellerson stated he was satisfied with the notice Lake provided, as it sufficiently described the nature of the matter to be considered and was published with the intention of revealing Lake's plans to the public. He noted the notice disclosed all important details of its plan to the Planning Board and, as such, the Planning Board made an informed decision based on its interpretation of its township's laws.
We concur with Judge Wellerson's determination. In contrast to the vague language of the public notice in Pond Run, here Lake stated in its public notice it sought approval for construction of a 125-room hotel and a 6284 square-foot, stand-alone, full-service restaurant. It specified exactly which variances it requested. Lake did not mention in the public notice that the stand-alone restaurant would contain a bar area, but as mentioned supra, that accessory use is customarily incidental and should be permitted. In Shakoor, we rejected as a basis to set aside the planned construction of a Wal-Mart, the claim that the public notice did not specifically identify the project as a Wal-Mart store but instead identified the proposed project as a "main retail store of 150,000 s.f." 420 N.J. Super. at 203. We concluded the notice sufficiently comported with the notice guidance articulated in Perlmart. Ibid.
Here, the notice provided by Lake was more descriptive and revealing than the notice in Shakoor. The notice mentioned the amount of space, the type of buildings to be constructed, and even the amount of seating at the restaurant. Therefore notice was sufficient to allow the application to proceed without specific identification of the proposed accessory uses for the hotel and stand-alone restaurant.
Plaintiffs' final attack on the substantive notice provided by Lake is that the public notice did not contain any mention of its request for a conditional use permit. However, as Lake mentions, the Township's land use code makes no mention of a requirement that applicants include the term "conditional use" when providing public notice. Moreover, as the Planning Board and trial court determined, once the ordinances were passed, Lake was no longer seeking to use the property for a non-permitted use. We therefore find Lake's public notice was substantively sufficient.
In addition to the public notice satisfying the substantive requirements, Lake followed all procedural requirements in publishing the notice. It posted the notice in the Asbury Park Press, and a copy of the notice was sent to all known owners of property within 200 feet of the lot. Furthermore, plaintiffs and other nearby property owners appeared at the Planning Board meetings to discuss potential problems with the proposal, demonstrating that they were well aware of Lake's plans. Lake sufficiently satisfied all procedural and substantive notice requirements under the MLUL.
To summarize, we discern no basis to disturb Judge Wellerson's conclusion that multiple uses on a single lot are not prohibited in the O-15 Zone and that serving alcohol is a customary accessory use to a hotel and restaurant. These findings and conclusions are supported by substantial credible evidence in the record. As such, the judge properly concluded the Planning Board's similar findings and conclusions were not arbitrary, capricious or unreasonable.