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Harborhead Condominium Association, Inc v. Zoning Board of Adjustment of Point Pleasant Beach; Anthony Storino

November 28, 2012

HARBORHEAD CONDOMINIUM ASSOCIATION, INC., PLAINTIFF-APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT OF POINT PLEASANT BEACH; ANTHONY STORINO AND FRANK STORINO D/B/A JENKINSON'S INLET BAR & GRILL, A/K/A JENKINSON'S PAVILION AND JENKINSON'S NORTH, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-773-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 9, 2012 -

Before Judges Parrillo, Sabatino, and Maven.

Plaintiff, Harborhead Condominium Association, Inc. ("Harborhead"), appeals from the Law Division's order sustaining variances and site plan approval issued to the owners of an adjacent beachfront restaurant. The Zoning Board of Adjustment of Point Pleasant Beach ("the Board"), had granted the restaurant's land use application, over Harborhead's objection, following nine public hearings. We affirm.

I.

A.

In 1976, Pasquale Storino purchased property in Point Pleasant Beach which is now used as a restaurant and bar called Jenkinson's North Pavilion ("Jenkinson's"). The Storino family has always operated the property as a restaurant. As of December 2008, it was owned by the Storino family (the "Storinos") in trust and managed primarily by Frank and Anthony Storino.

Jenkinson's is on property located in the "RC" (Resort Commercial) zone of Point Pleasant Beach. It sits primarily on Lot 3, Block 180. Jenkinson's also has a small seasonal stage area on its south side on Lot 2, Block 212, and a deck extending eastward onto the beach. The deck area consists of an upper portion and a lower portion. The upper deck has a bar area, and the Storinos have proposed to replace one of the two bars there. The lower deck is used for banquet-type operations.*fn1

The west side of Jenkinson's runs along the boardwalk. Across the boardwalk from the restaurant is a parking lot located on Block 180, Lot 1.*fn2

Harborhead is located to the north side of the parking lot, on Block 180, Lot 2, and sits diagonally across the boardwalk from Jenkinson's. It consists of numerous condominium buildings.

B.

In January 2008, a Point Pleasant Beach zoning officer sent a violation notice to the Storinos, asserting that the lower deck at Jenkinson's was in violation of local ordinances.*fn3 In response, the Storinos filed a request for an interpretation of the relevant Point Pleasant Beach ordinances, 19-8.4(a) and 19-14.2(b). Ordinance 19-8.4(a) prohibits structures on the beach east of the boardwalk, except pre-existing nonconforming buildings.*fn4 Ordinance 19-14.2(b)(1) requires site plan approval for expansions to existing uses and structures. Although apparently not referenced in the zoning officer's letter, Ordinance 19-9.6(b)(2) allows restaurants in RC zones, "provided the condition and operation of any restaurant will not result in reduction of any existing off-street parking serving uses in the RC Zone."

The Board held five public hearings on the interpretation request between December 2008 and November 2009. Harborhead participated in those initial hearings as an "interested party," pursuant to N.J.S.A. 40:55D-4, and presented objections.

John Maczuga, a licensed planner, testified as an expert for Harborhead. Maczuga noted that the subject property had been rezoned in 1993. According to Maczuga, as a result of that rezoning, bars and restaurants in the Borough became conditional uses, and subsequent expansions to restaurants required a conditional use permit or a variance under N.J.S.A. 40:55D- 70(d). He further stated that in approximately 1996 or 1997, after the rezoning had occurred, Jenkinson's was expanded by adding the upper deck area and the seasonal beach deck without permits or approvals.

Several local residents, who opposed the restaurant's application, testified that in the late 1990s and early 2000s the events held at the establishment had become larger, louder, and more frequent. They asserted that some of those events involved hundreds of patrons.

After completing these initial hearings, the Board determined in November 2009 that the lower beach deck was indeed in violation of the local zoning ordinance and thus would require a use variance. The Board also found that the upper deck area was an unauthorized expansion of the existing structure, having been built without proper approvals.

C.

The Storinos thereafter filed a land use application with the Board, seeking approval to expand a nonconforming use and a use variance, respectively pursuant to N.J.S.A. 40:55D-70(d)(2) and (d)(3).*fn5 In that application, the Storinos sought a (d)(3) variance to continue using the lower deck area on the beach for banquets, despite the zoning ordinance's requirement that new restaurant construction not decrease off-street parking, a (d)(2) variance to expand the upper deck area, and approval to renovate much of the building for aesthetic purposes.

The Board held four public hearings on the application between December 2009 and October 2010. Once again, Harborhead participated and objected to the Storino's application. Specifically, Harborhead opposed the Storinos' variance requests with respect to the restaurant's upper deck and lower deck areas. Harborhead, ...


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