NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5504-15T3
MATTHEW GLENN, RICHARD
ZEGHIBE and DEAN PARKER,
Plaintiffs-Appellants,
v.
CITY OF CAPE MAY PLANNING
BOARD, CITY OF CAPE MAY
ZONING BOARD OF ADJUSTMENT
and ADIS, INC., t/a LAMER
BEACHFRONT INN,
Defendants-Respondents.
———————————————————————————————————-
Argued August 8, 2017 – Decided September 11, 2017
Before Judges Hoffman and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Cape May County, Docket No. L-
0408-15.
William J. Kaufmann argued the cause for
appellants (Cafiero & Kaufmann, PA, attorneys;
Mr. Kaufmann, on the briefs).
Richard M. King, Jr. argued the cause for
respondents City of Cape May Planning Board
and City of Cape May Zoning Board of
Adjustment (Law Office of Richard M. King,
Jr., LLC, attorneys; Mr. King, on the brief).
Richard M. Hluchan argued the cause for
respondent Adis, Inc., t/a LaMer Beachfront
Inn (Hyland Levin LLP, attorneys; Mr. Hluchan,
on the brief).
PER CURIAM
In this action in lieu of prerogative writs, plaintiffs
Matthew Glenn, Richard Zeghibe, and Dean Parker appeal from the
Law Division's July 7, 2016 order in favor of defendants, the City
of Cape May Planning Board (the Board) and Adis, Inc. (Adis). The
order affirmed the Board's approval of Adis's application for
redevelopment of its motel and restaurant properties. We affirm.
I.
Adis operates a motel known as the LaMer Beachfront Inn,
located on the corner of Beach and Pittsburgh Avenues in Cape May.
The motel property consists of 141 units and an adjacent 146-seat
restaurant, which is located in a separate building on the same
lot. Both the motel and restaurant are permitted uses in the C-3
zone.
Cape May Ordinance §525-49C, "Off-street parking standards"
(the Ordinance), governs parking at motel and restaurant
facilities. See Cape May, N.J., Ordinances §525-49C(2) and (4).
The Ordinance requires restaurants to provide "at least one parking
space for each four seats provided for patrons based on maximum
seating capacity"; it requires motels to provide "at least one
parking space for each guest sleeping room, plus one space per
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employee on the largest shift." Ibid. According to the Cape May
Master Plan Reexamination, which the city last revised in March
2009, there is a general parking shortage on many beachfront blocks
during the summer season.
Since 2009, Adis has filed several applications with the
Board to redevelop its LaMer property, which have required
variances from the Ordinance. First, in 2009, Adis sought to
demolish the motel's existing "laundry and maintenance support
building" and to construct a new laundry building with eight
additional rooms above the structure. It further sought to
demolish the existing restaurant and to construct a new 146-seat
restaurant with twenty-one additional motel units above, for 162
total units. Because the terms of the Ordinance required 219
parking spaces for this redevelopment, Adis proposed to provide
183 parking spaces and requested a variance for the remaining
spaces. The Board denied the variance, rendering the rest of the
application moot.
Next, in early 2010, the Board considered Adis's application
to demolish the laundry building and to construct a new four-story
building with eight additional motel rooms, for 141 total units.
The Board approved this application in April 2010, determining
that Adis was not required to obtain a parking variance.
3 A-5504-15T3
Plaintiffs appealed this decision to the Law Division, which
affirmed in April 2011.
In the fall of 2010, Adis submitted a new proposal, now
seeking to demolish the restaurant and laundry building and to
construct a ninety-six seat restaurant with seventeen motel units
above the structure and two units above the laundry addition. Adis
sought a parking variance, which the Board denied, again rendering
the rest of the application moot.
In connection with its fall 2010 application, Adis raised the
concept of "shared parking,"1 which is "the use of parking spaces
to serve two or more individual land uses without conflict or
encroachment." Recognizing that changes to parking rules should
be made by ordinance, the Board established a committee to review
the issue. In its 2013 report, the committee declined to recommend
that Cape May adopt a shared parking ordinance, instead
recommending the Board consider the issue "on a case by case basis
as part of the application for variance procedure already
established." It further recommended that any applicant seeking
a variance be required to provide an expert study. The Board
unanimously endorsed this report in October 2013.
1
Adis also submitted the "shared parking" concept in connection
with its 2009 application.
4 A-5504-15T3
Following the committee report, Adis submitted a new
application in early 2014, proposing to construct twenty-one motel
units above the existing restaurant. Adis did not apply for a
parking variance, taking the position that one was not required
for this redevelopment. The Board disagreed, finding Adis was
required to apply for a variance, and thus it did not consider the
merits.
Thereafter, in February 2015, Adis submitted the application
at issue on appeal. Similar to its 2009 proposal, Adis sought to
demolish the existing restaurant and to construct a new 146-seat
restaurant with twenty-one motel units above, for 162 total units
on the property. Adis determined that under the terms of the
Ordinance, its proposed redevelopment would require 227 parking
spaces: 162 for the motel units; thirty-seven for the restaurant;
eighteen for motel employees; and ten for restaurant employees.
Because the existing property only contained 173 spaces, Adis
proposed to create nine additional spaces and to seek a variance,
contending that 182 spaces total would be sufficient under a shared
parking arrangement.
The Board conducted hearings on this proposal on April 28,
2015, and May 26, 2015. Adis presented the expert report and
testimony of traffic engineer David Shropshire. According to
Shropshire, the Ordinance treats Adis's motel and restaurant as
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separate entities for parking purposes. Citing data from the
Institute of Transportation Engineers (ITE), which recognizes that
restaurants "can be an amenity or an auxiliary use to a motel or
hotel," Shropshire stated, "I believe the ordinance requirements
are very conservatively defined, and the shared parking is
certainly an idea that can be incorporated into these two uses
being together."
Shropshire then described the parking analysis he conducted
on the property by observing the motel and restaurant at various
times from August 1, 2014 through August 3, 2014. Based upon his
observations, Shropshire calculated a "peak parking rate" of 1.05
spaces per occupied unit, for the "blended use" of the motel and
restaurant. Assuming that all 162 proposed units would be occupied
during peak conditions, he concluded that the parking demand would
be 171 spaces, meaning the proposal for 182 spaces was sufficient
to handle the demand. He further explained that according to ITE
data, the industry standard demand for a motel and restaurant was
lower, at 0.85 spaces per occupied unit.
Adis further presented the testimony of Vincent Orlando, a
professional engineer and land use planner, who discussed the
statutory positive and negative criteria required for the granting
of a "(c)(2)" variance under the Municipal Land Use Law (MLUL),
N.J.S.A. 40:55D-70(c)(2). Regarding the positive criteria, he
6 A-5504-15T3
found the proposal met two of the purposes outlined in N.J.S.A.
40:55D-2. First, applying N.J.S.A. 40:55D-2(m), Orlando stated:
We have an existing hotel, we have an
existing restaurant. There's a need for hotel
rooms obviously in the City of Cape May.
Utilizing this space and this parking
would lessen the cost of development, instead
of putting a hotel somewhere else. But more
importantly, it would be a more efficient use
of the land.
Second, Orlando testified the plan would meet the
environment requirements of N.J.S.A. 40:55D-2(g), by obviating the
need for additional impervious blacktop coverage that could affect
drainage management.
With respect to the negative criteria, Orlando noted the
proposal provided adequate parking, and it complied with the
Board's "directive" to consider shared parking in variance
applications. He added, "And I believe that there's no substantial
detriment to the zone plan, again, because of the parking study
that was done by Mr. Shropshire." Orlando further concluded there
was no detriment to the public good, although street parking fills
up during the daytime, because street parking is "plentiful" at
nighttime during high restaurant demand.
Plaintiffs presented the expert testimony of Brian Murphy, a
licensed professional engineer and land planner. Murphy testified
that based upon his math, "the number of employees and the parking
7 A-5504-15T3
associated with [the motel] may be slightly understated."
However, he did not provide testimony to contradict Shropshire's
expert report and conclusions. With regard to the positive and
negative criteria, Murphy testified Adis's proposal would result
in substantial detriment and was contrary to the purposes of the
Cape May zoning ordinance. Specifically, he opined that the
proposal would negatively affect the adjacent residential
neighborhood by creating competition for parking.
Craig Hurless, the Board's engineer, gave his opinion
regarding plaintiff's claim that res judicata barred Adis's
application. He found res judicata did not apply because Adis's
previous applications were not "substantially similar" to the
present application. Hurless noted the 2009 application was the
"closest" but concluded "the variance circumstances with regard
to setbacks" were different, and the construction of the structure
"requires different variances." The Board adopted Hurless's
recommendation.
The Board further voted 7-2 to approve Adis's application,
which it formalized in a resolution dated January 12, 2016. The
Board noted in the resolution that it reviewed Shropshire's expert
report and testimony, "with no contrary expert testimony having
been presented." It accepted that the restaurant and motel had
different peak parking demands, and that the overlap of restaurant
8 A-5504-15T3
and motel patrons supported utilizing "the 'shared parking'
concept." The Board found the plan advanced the purposes of zoning
because it "encourages efficient use of the land, satisfies a need
for hotel rooms, encourages capital improvement for the betterment
of the community, provides sufficient space for commercial uses,
and helps reduce[] the need to increase impervious coverage for
parking on the site." It found no substantial detriment, citing
Shropshire's report, "as well as the existing use of the property
as a restaurant and hotel, and to some extent the available parking
on the street nearby."
On August 17, 2015, plaintiffs filed a complaint in lieu of
prerogative writs, arguing the Board's decision was arbitrary,
capricious, and unreasonable because Adis had not proved the
requisite positive and negative criteria. Plaintiffs further
contended the Board erred by finding the doctrine of res judicata
did not bar Adis's application. Following a hearing, on July 7,
2016, the Law Division judge issued an order and written memorandum
decision, affirming the Board.
This appeal followed. Plaintiffs raise two main issues for
our consideration, asserting (1) the Board's granting of the
variance was improper because Adis failed to establish the
statutory positive and negative criteria, and (2) the Board should
9 A-5504-15T3
have barred Adis's application on res judicata grounds. We address
these arguments in turn.
II.
"Our standard of review for the grant or denial of a variance
is the same as that applied by the Law Division." Advance at
Branchburg II, LLC v. Twp. of Branchburg Bd. of Adjustment, 433
N.J. Super. 247, 252 (App. Div. 2013). Specifically, "when a
party challenges a zoning board's decision through an action in
lieu of prerogative writs, the zoning board's decision is entitled
to deference." Kane Props., LLC v. City of Hoboken, 214 N.J. 199,
229 (2013). We grant zoning boards "wide latitude in the exercise
of delegated discretion" due to "their peculiar knowledge of local
conditions." Price v. Himeji, LLC, 214 N.J. 263, 284 (2013)
(quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)).
When reviewing a board's decision, we presume its "factual
determinations . . . to be valid," and we will only reverse if the
decision "is arbitrary, capricious or unreasonable." Kane Props.,
supra, 214 N.J. at 229. We will "not disturb the discretionary
decisions of local boards that are supported by substantial
evidence in the record and reflect a correct application of the
relevant principles of land use law." Lang v. Zoning Bd. of
Adjustment, 160 N.J. 41, 58-59 (1999).
10 A-5504-15T3
N.J.S.A. 40:55D-70 authorizes local zoning and planning
boards to grant variances from zoning ordinances. Here, the Board
granted Adis a "(c)(2)" variance, pursuant to N.J.S.A. 40:55D-
70(c)(2). Applicants seeking to establish a (c)(2) variance must
show "that the purposes of the MLUL would be advanced, the variance
can be granted without substantial detriment to the public good,
the benefits of the variance will outweigh any detriment, and that
the variance will not substantially impair the intent and purpose
of the zoning plan and ordinance." Jacoby v. Zoning Bd. of
Adjustment, 442 N.J. Super. 450, 471 (App. Div. 2015).
Our courts refer to the balancing of benefit and detriment
as proving "the positive and negative criteria." Ten Stary Dom
P'ship v. Mauro, 216 N.J. 16, 30 (2013). Satisfaction of the
positive criteria "requires a showing that 'the purposes of [the
MLUL] would be advanced by a deviation from the zoning ordinance
requirements and the benefits of the deviation would substantially
outweigh any detriment.'" Chicalese v. Monroe Twp. Planning Bd.,
334 N.J. Super. 413, 427-28 (App. Div. 2000) (quoting N.J.S.A.
40:55D-70(c)(2)). The purposes of zoning include providing
"sufficient space in appropriate locations . . . according to
their respective environmental requirements in order to meet the
needs of all New Jersey citizens," N.J.S.A. 40:55D-2(g), and
encouraging "coordination of the various public and private
11 A-5504-15T3
procedures and activities shaping land development with a view of
lessening the cost . . . and to the more efficient use of land."
N.J.S.A. 40:55D-2(m). The "Interpretation and purpose" section
of the Cape May zoning ordinance contains provisions that mirror
these MLUL purposes. See Cape May, N.J., Ordinances §525-2B(7)
and (13).
As to the negative criteria, the applicant must prove "that
the variance would not result in substantial detriment to the
public good or substantially impair the purpose of the zone plan"
and zoning ordinance. Ten Stary Dom P'ship, supra, 216 N.J. at
30; N.J.S.A. 40:55D-70.
Importantly, our Supreme Court explained that when assessing
whether to grant a (c)(2) variance:
no [(c)(2)] variance should be granted when
merely the purposes of the owner will be
advanced. The grant of approval must actually
benefit the community in that it represents a
better zoning alternative for the property.
The focus of a [(c)(2)] case, then, will be
not on the characteristics of the land that,
in light of current zoning requirements,
create a "hardship" on the owner warranting a
relaxation of standards, but on the
characteristics of the land that present an
opportunity for improved zoning and planning
that will benefit the community.
[Kaufmann v. Planning Bd., 110 N.J. 551, 563
(1988) (emphasis omitted).]
In short, the granting of a "(c)(2) variance will stand if,
after adequate proofs are presented, the Board concludes that the
12 A-5504-15T3
'harms, if any, are substantially outweighed by the benefits.'"
Jacoby, supra, 442 N.J. Super. at 471 (quoting Kaufmann, supra,
110 N.J. at 565).
With these standards in mind, we turn to plaintiffs'
arguments. Plaintiffs contend Shropshire and Orlando's testimony
on the negative criteria was inadequate, noting that neither expert
referenced how the proposal would comply with the Master Plan.
Plaintiffs further assert the Board inappropriately disregarded
Murphy's testimony without explanation, and it erroneously stated
that plaintiffs provided "no contrary expert testimony." Further,
plaintiffs claim Orlando's conclusion regarding the negative
criteria was net opinion. With regard to the positive criteria,
plaintiffs argue Adis failed to show how the variance would advance
the purposes of zoning and the MLUL, N.J.S.A. 40:55D-2.
We reject these arguments, finding the Board's decision to
grant the variance was not arbitrary, capricious, or unreasonable
and was supported by substantial evidence in the record. Regarding
the negative criteria, Shropshire established that a worst-case
scenario of peak demand would require 171 parking spaces. Since
Adis's proposal provided for 182 spaces, Orlando appropriately
relied on this report to conclude that the plan would not cause
substantial detriment. Moreover, because the Board previously
decided to consider shared parking on a case-by-case basis when
13 A-5504-15T3
evaluating variance applications, Orlando correctly noted the
proposal did not impair the purposes of Cape May's zoning plan;
the lack of explicit reference to the Master Plan does not alter
this result. See Ten Stary Dom P'ship, supra, 216 N.J. at 30.
Because the evidence supported Orlando's conclusions, plaintiffs'
assertion that Orlando rendered a "net opinion" also lacks merit.
See Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).
As to the positive criteria, Orlando testified the plan
promoted efficient use of the land and lessened costs because it
added to an already existing motel, rather than creating a new
structure. See N.J.S.A. 40:55D-2(m). He also noted the variance
would serve environmental requirements by obviating the need to
increase the impervious coverage on the property. See N.J.S.A.
40:55D-2(g). Based upon this evidence, we find no basis to disturb
the Board's conclusion that Adis's proposal advanced the purposes
of zoning and substantially outweighed any detriment.
We further conclude the Board's decision to disregard
Murphy's testimony was not arbitrary, capricious, or unreasonable.
We have held that zoning boards "may choose which witnesses . . .
to believe," but the "choice must be reasonably made." Bd. of
Educ. v. Zoning Bd. of Adjustment, 409 N.J. Super. 389, 434 (App.
Div. 2009). "[T]he choice must be explained, particularly where
the board rejects the testimony of facially reasonable witnesses."
14 A-5504-15T3
Id. at 434-35. Here, we find the Board's decision to credit the
testimony of Shropshire and Orlando was reasonable. Although the
Board should have better explained why it did not credit Murphy's
testimony, given that Adis satisfied the positive and negative
criteria, we decline to disturb the Board's decision on this basis.
We also note the Board's statement that plaintiffs presented "no
contrary expert testimony" was only in reference to Shropshire's
report, which Murphy did not refute.
We now turn to plaintiffs' res judicata argument. "The
principle of res judicata has evolved principally in the judicial
system to prevent the same claims involving the same parties from
being filed and brought before a court repeatedly." Ten Stary Dom
P'ship, supra, 216 N.J. at 39. Res judicata is applicable to
actions before a zoning board. See Russell v. Bd. of Adjustment,
31 N.J. 58, 65 (1959). Our Supreme Court has explained:
If an applicant files an application similar
or substantially similar to a prior
application, the application involves the same
parties or parties in privity with them, there
are no substantial changes in the current
application or conditions affecting the
property from the prior application, there was
a prior adjudication on the merits of the
application, and both applications seek the
same relief, the later application may be
barred. It is for the Board to make that
determination in the first instance.
[Ten Stary Dom P'ship, supra, 216 N.J. at 39.]
15 A-5504-15T3
However, even where an application is "closely similar" to a
prior application, if the applicant demonstrates changed
circumstances, "it is within the discretion of the board whether
to reject the application on the ground of res judicata, and the
exercise of that discretion may not be overturned on appeal in the
absence of a showing of unreasonableness." Mazza v. Bd. of
Adjustment, 83 N.J. Super. 494, 496 (App. Div. 1964), appeal
dismissed, 47 N.J. 161 (1966); see also Russell, supra, 31 N.J.
at 67 (noting courts should not disturb a board's finding unless
it is arbitrary, capricious, or unreasonable).
Plaintiffs argue the Board should have barred Adis's 2015
application on res judicata grounds because it was substantially
similar to Adis's 2009 application and sought greater relief than
its fall 2010 application. However, contrary to plaintiffs'
assertion, the Board did not reach the full merits of either
application. See Ten Stary Dom P'ship, supra, 216 N.J. at 39.
The Board's engineer further opined that the applications were not
substantially similar. Finally, the Board's decision to consider
shared parking in 2013 constitutes a sufficient change in
conditions to warrant consideration of the current application and
variance. See Russell, supra, 31 N.J. at 66. We are therefore
satisfied the Board's decision was not arbitrary, capricious, or
unreasonable.
16 A-5504-15T3
Affirmed.
17 A-5504-15T3