JOHN AND LISA ZERVOPOULOS VS. PLANNING BOARD OF THE BOROUGH OF DUNELLEN(L-6102-14, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2615-15T3

JOHN and LISA ZERVOPOULOS,

Plaintiffs-Appellants,

v.

PLANNING BOARD OF THE
BOROUGH OF DUNELLEN
and 216 NORTH AVENUE
ASSOCIATES, LLC,

Defendants-Respondents.
_________________________________________________

Argued November 29, 2016 – Decided June 12, 2017

Before Judges Messano and Guadagno.

On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Docket No. L-6102-14.

James E. Stahl argued the cause for
appellants (Borrus, Goldin, Foley, Vignuolo,
Hyman & Stahl P.C., attorneys; Mr. Stahl, of
counsel and on the brief; Jay Holub, on the
brief).

John M. Lore argued the cause for respondent
Planning Board of the Borough of Dunellen
(DeMarco & Lore, attorneys; Mr. Lore, on the
brief).
 Joseph A. Paparo argued the cause for
respondent 216 North Avenue Associates, LLC
(Hehl & Hehl, P.C., attorneys; Mr. Paparo,
of counsel and on the brief; Corey Klein, on
the brief).

PER CURIAM

Plaintiffs John and Lisa Zervopoulos appeal from the April

13, 2015 Law Division order affirming the decision of defendant

Planning Board of Dunellen (Board) granting preliminary and

final site plan approval and bulk variances to defendant 216

North Avenue Associates (216 North). Plaintiffs also appeal

from the January 19, 2016 order dismissing their complaint with

prejudice after trial.

Plaintiffs own a laundromat located on property (Lot 18) in

Dunellen. In 2005, Primax Properties (Primax), then owner of

property adjoining Lot 18, applied to the Board for subdivision

approval to split the parcel into two lots (Lots 16 and 17) and

develop each parcel separately. Plaintiffs initially opposed

the application as the proposed site plan depicted parking on

plaintiffs' Lot 18. Plaintiffs withdrew their opposition after

Primax agreed to execute an easement which provided a shared

driveway and parking lot.

Thereafter, Primax began construction of an auto parts

store. This led to further discussions and eventually an

amended easement dated December 17, 2009, containing use

2 A-2615-15T3
restrictions preventing plaintiffs from using their lot for auto

parts sales and Primax from using its lots for laundry

facilities.

In October 2013, 216 North purchased the property from

Primax. In April 2014, 216 North applied to the Board for site

plan approval and variances to build a three-story mixed use

building with retail space on the first floor and two floors

containing four residential units per floor.

On June 23, 2014, the Board conducted a hearing on the

application. 216 North presented four expert witnesses. Steven

Parker, a civil engineer who prepared the site plan, requested

that the Board waive several items normally required such as an

environmental impact statement, a drainage study, and a wetlands

study. Parker explained that these items were addressed in the

2006 application and 216 North was "not proposing any changes to

the site . . . other than the completion of the construction of

the building."

Alan Feld, a licensed architect, testified that the

original approved project was for one commercial space of

approximately 4200 square feet, but now the structure will have

a second and third floor, as well as a basement with a net area

of 3260 square feet. The second and third floor of the proposal

will have eight units, which will consist of two bedrooms per

3 A-2615-15T3
unit. Feld testified that the proposed building will "advance

the design standards of the redevelopment of the downtown

Dunellen district."

Joseph Staigar, a traffic engineer, testified that the new

proposal does not require a reapplication as to the Department

of Transportation access permits because there are no

modifications to the driveways or the operation of the driveways

that would require different permits.

Staigar testified that adding the additional eight

residential units to the commercial space would have minimal

impact on traffic conditions on the site and would not violate

the current permits which allow 100 trips per hour; the units,

even during peak hours, would not exceed that limitation.

During cross-examination by plaintiffs' counsel, Staigar

acknowledged that he was aware of the easement agreement as to

the use of the parking spaces, but he did not consider the

shared use of the parking lot.

Keenan Hughes, a licensed planner, testified that the

proposed plan does not need a minimum on-site parking

requirement as it is under the 20,000 square feet requirement

and the Board is requiring one because the lots in question are

part of a shared access. Hughes explained that the proposed

plan to have a mixed use building "helps the borough to achieve

4 A-2615-15T3
its interest in providing downtown living opportunity and what

is a very appropriate location. . . . [and] granting of the

variance would advance purposes of the plan." During cross-

examination, Hughes admitted that he did not consider the shared

parking space of plaintiffs' laundromat when determining the

positive effect of the mixed use proposal. Plaintiffs called no

witnesses at the hearing. The Board approved the amended site

plan and variances.

Plaintiffs filed a two-count complaint in lieu of

prerogative writs challenging the decision of the Board and

seeking to enjoin the construction of the mixed use facility.

Plaintiffs claimed the proposal to add two additional floors of

residential units violates the amended easement agreement as the

parties intended to share parking of the laundry and retail

store only, and the residential units will place additional

strain on the facility. Plaintiffs also claimed that the use

restriction limits 216 North to construction of retail stores

and prohibits residential units. Judge James P. Hurley

bifurcated the complaint and dismissed the first count

challenging the decision of the Board granting the site plan

approval and the variances.

5 A-2615-15T3
 Trial on the second count was limited to whether the

amended easement agreement restricted the use of Lot 17 to

retail stores.

Plaintiff Lisa Zervopoulos testified that she and her

husband John purchased the laundromat in 2003. The laundromat

consists of sixty-eight washing machines and one hundred dryers.

She and her husband attended the planning board meeting in 2005

to object to Primax's application because their property was

included in the plans. They agreed to support the application

in exchange for an easement agreement between the parties for

parking and access.

Plaintiff and her husband filed a lawsuit against Primax in

2009 regarding a fence and disputes related to parking during

the construction of the auto parts store. The original easement

agreement was amended in December 2009 after the parties settled

the matter. The parties agreed in the Amended Agreement that

because Primax had a silt fence that blocked plaintiffs'

property on Lot 18 during the construction, Primax would develop

the Lot 17 parking area in two separate phases so it would not

affect either party's ability to utilize the parking area.

Plaintiff testified that there were no other restrictions

on the use of the building in the Amended Agreement other than

the use of it being a laundromat because plaintiff "didn't care

6 A-2615-15T3
what it was going to be used for. [She] care[s] more about the

size of the actual building."

Defendant called Joseph Villani, who formed 216 North in

2013 with the intent to purchase the property located at 216

North Avenue from Primax. Villani testified that the

application filed with the Board in 2014 did not change any site

improvements that were already completed, did not propose to

remove any parking spaces, and did not alter physically in any

way the driveway that both parties shared.

Defendant then called Joseph Staigar, who testified before

the Board in 2014. Staigar prepared a parking study report "to

establish the accumulation of parking at peak times on the

property, . . . to project how much parking would be required

coincidentally with the existing uses on the site for the

proposed uses, projected the proposed use parking demand at

times when the . . . existing uses would peak." Staigar noted

that there are fifty-five parking spaces on site and thirteen

metered spaces along the frontage of North Avenue which totals

sixty-eight available parking spaces.

Staigar testified that if the property or lot is less than

20,000 square feet, there is no parking standard under the code,

but the borough ordinance requires one space for every 200

square feet of retail and 1.75 spaces per unit. Applying this

7 A-2615-15T3
calculation to the laundromat, the existing apartments above it,

the proposed retail store, and the eight apartments, sixty-two

spaces would be required. However, the redevelopment plan for

the borough allows for "one half of the parking requirement for

any use whose peak attendance will be at night and may be

assigned to a use which was closed at night." Staigar

calculated that the ordinance requires fifty spaces, and the

actual demand is for fifty-four spaces; both are less than the

fifty-five spaces available.

Judge Hurley accepted Mr. Staigar's conclusions and found

that "his analysis is based on acceptable engineering principles

supported by observable facts." The judge noted that plaintiffs

offered no contradictory testimony. The judge found the terms

of the Amended Agreement were "clear as written" and contain no

reference to traffic plans. The judge concluded that there was

no actual or anticipatory breach of the Amended Agreement by 216

North, and without establishing a breach, the relief sought by

plaintiffs cannot be granted. Finally, the judge noted that

plaintiffs' admitted plan to expand the laundromat is contrary

to their interpretation of the restrictions contained in the

Amended Agreement.

On appeal, plaintiffs claim the planning board's approval

was arbitrary, capricious, and unreasonable as the applicant

8 A-2615-15T3
failed to provide a factual foundation to support the

application and as such, the approval should be declared void.

Plaintiffs also claim the trial judge erred in its

interpretation of the essential elements of the easement

agreement.

We begin our review of the Board's action by noting that

"public bodies, because of their peculiar knowledge of local

conditions must be allowed wide latitude in the exercise of

delegated discretion." Kramer v. Bd. of Adjustment, 45 N.J. 268,

296 (1965).

Our examination of the evidence presented to the Board

reveals ample support for its decision to grant the site plan

approval and variances. Plaintiffs have failed to establish

that the Board's actions were arbitrary, capricious, or

unreasonable.

Similarly, we find no proof that the trial judge erred in

his interpretation of the elements of the easement and we affirm

the January 19, 2016 order dismissing plaintiffs' complaint with

prejudice, substantially for the reasons set forth in Judge

Hurley's thorough written decision. R. 2:11-3(e)(1)(E).

Affirmed.

9 A-2615-15T3