MICHAEL W. VALENTINE VS. SOMERS POINT PLANNING BOARD (L-1979-16, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-5476-16T3

MICHAEL W. VALENTINE,

Plaintiff-Appellant,

v.

SOMERS POINT PLANNING
BOARD and 924 BAY AVENUE,
LLC,

Defendants-Respondents.
___________________________________

Submitted October 3, 2018 – Decided July 9, 2019

Before Judges Fuentes, Vernoia and Moynihan

On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-1979-16.

Carl N. Tripician, attorney for appellant.

Fleishman Daniels Law Offices LLC, attorneys for
respondent Somers Point Planning Board (Joel Marc
Fleishman, on the brief).

Fox Rothschild LLP, attorneys for respondent 924 Bay
Avenue, LLC (Jack Plackter and Bridget A. Sykes, on
the brief).
PER CURIAM

Defendant 924 Bay Avenue, L.L.C., filed a Preliminary and Final Major

Site Plan application before the Planning Board of the City of Somers Point

(Board) to construct a 6000 square-foot restaurant and banquet hall, with a

waterfront bar and marina. The proposed restaurant required the Board to grant

eight separate bulk variances and approve an off-site parking plan pursuant to

City ordinance Sec. 250-61.3. The Board heard testimony on the application in

public hearings conducted over two non-sequential days. In addition to the

applicant's witnesses, the Board heard from area residents who live near the

location of the proposed restaurant. These residents objected to the scale of the

project and expressed particular concern about how it would exacerbate the

scarcity of on-street parking.

In response to the concerns raised by the objectors, the applicant reduced

the seating capacity of the restaurant from 370 to 281 seats, by redesigning the

internal configuration of the structure without altering its architectural footprint .

The applicant also agreed to cease the operation of its banquet hall if it was

unable to provide an off-site parking facility in accordance with Sec. 250-61.3.

On a vote of six members in favor, one against, and one recusal, the Board

approved the application and granted the required variances pursuant to N.J.S.A.

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40:55D-70(c)(1) and (2), of the Municipal Land Use Law and City ordinance

Sec. 250-61.3.

Plaintiff Michael W. Valentine thereafter filed this action in lieu of

prerogative writs in the Law Division pursuant to Rule 4:69-6(b)(3), in which

he challenged the decision of the Board as arbitrary, capricious, and untethered

to the requirements of N.J.S.A. 40:55D-70(c)(1) and (2), and in violation of the

requirements of City ordinance Sec. 250-61.3. After reviewing the record

developed before by the parties, the trial court did not find any legal grounds to

disturb the Board's decision. In his appeal to this court, plaintiff argues the Law

Division erred when it upheld the Board's decision to: (1) grant the applicant

front-yard, setback, and lot coverage variances; and (2) approve the off-site

parking arrangement.

We agree that the off-site parking arrangement the Board approved does

not comply with the requirements of City ordinance Sec. 250-61.3 and reverse.

The following facts will inform our legal analysis.

I

The Board first met to consider the applicant's presentation on February

17, 2016. Prior to this hearing, Robert Watkins, P.E., the Board's Planning

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Engineer, submitted a memorandum dated April 29, 2015, which provided the

following description of the proposed project:

The applicant is requesting Preliminary Major Site Plan
approval to construct a 6,000 square foot restaurant
with 390 seats located within the building and 156 seats
located on an outside deck area on Block 1810; Lot 8
for a total of 546 seats. The existing site was the
location of "Dolphin Dock" marina which has since
been demolished. The applicant proposes to have an
elevated building with parking proposed under the
building and on the south side of the restaurant with 42
parking spaces. There is a 4,000 square foot deck
which overlooks the bay and a new bulkhead is
proposed with public access to the water's edge. The
applicant proposes [a] 21 slip marina area for patrons
to use the restaurant, these slips 1 will not be rent. There
will be a ten (10) foot wide wooden deck harbor walk
provided between the deck and the bulkhead.

Watkins also noted that the property is located in the Historic Village

Waterfront Zoning District, which permits restaurants with outdoor seating.

However, the proposed project did not comply with the City's zoning

requirements. The applicant thus sought approval for the following eight

variances:

1
In his testimony before the Board, the applicant's project architect Richard
Cobatta defined the term "slip" as "essentially parking spaces for boats." He
also assured the Board that the applicant did not intend to rent the slips. The
slips would only be used "to allow people to come there that want to frequent
the restaurant."

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1) Max. Lot Coverage Allowed: 30% Applicant sought 80%

2) Min. Front Setback Required: 50 ft. Applicant provided -0- ft.

3) Min. Rear Setback Required: 30 ft. Applicant provided 29 ft.

4) Max. Building Height Allowed: 35 ft. Applicant provided 36 ft.

5) Loading Area Required: 14/30 ft. Applicant provided -0- ft.

6) Parking Buffer Required: 10 ft. Applicant provided -0- ft.

7) Min. Parking Spaces Required: 182 Applicant provided 42 spaces

8) Parking Setback Required: 15 ft. Applicant provided 5 ft.

The lack of sufficient onsite parking and the method the applicant

proposed to address it was the most contentious part of the application. Board

members and area residents expressed strong reservations about the practicality

of the off-site parking arrangement the applicant proposed, as well as its legal

viability from the point of view of its enforcement. The applicant's architect

testified that he anticipated the off-site parking arrangement "would work"

consistently with the applicant's business model. Relying on "Google to get an

understanding" of how long it would take to drive from the off-site parking lot

to the restaurant, the architect estimated it would take a person eight minutes to

walk from the lot to the restaurant.

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 Based on this estimated walking-time, once the forty-one on-site parking

spaces are occupied, the applicant planned "to have a small sign on the site itself,

like a traffic type of sign that will point you to the address of the other parking

facility." The applicant intended to provide valet service only when the banquet

facility was open. In light of this arrangement, the applicant's architect opined

"that this is not a variance for a deficiency in parking. It's a variance for a

deficiency in convenient parking to make it work for our needs." (Emphasis

added). The architect expounded on this characterization of the parking

requirement issue as follows:

We do have the parking available to make sure that Mr.
Mitchell has a successful business. He had to go out
and do that because he recognizes the importance of
this. So, it's a variance. While on its face when you
look at this piece of paper, it looks like a big variance
that we're asking for, but operationally, Mr. Mitchell
has a plan in place. Will he continue to look for a
better, more convenient solutions? My guess is he
probably will. He has a plan in place to make this a
very successful project. That is the nuts and bolts of
how he intends to meet the needs of this project as far
as parking concerns.

This explanation by the architect eliminates any doubt a reasonable observer

would have that the approach presented was intended to be an applicant-centered

solution. The applicant did not address or consider how this proposal would

affect the availability of on-street parking in the area.

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 The record reflects that on-street parking remained a significant concern

for a number of area residents and members of the Board. The Board's Acting

Chair was dubious about the effectiveness of valet parking as a means of

preventing restaurant customers from parking on the street: "Bottom line is . . .

you say during the banquet times you're going to have valet, but at all other

times, you're going to have a sign saying parking is up the street. What's going

to stop these people from just parking in the neighborhoods?" The Board's

Planning Engineer expressed similar concerns about the efficacy of granting a

variance conditioned on the availability of valet parking:

[I]f the Planning Board grants a variance for this off-
site parking requirement that's a block and a half away,
the only mandatory thing to make them park there is
somehow mandatory valet parking from this property
to that property and that none of their patrons will park
on the street. I don't know how you can enforce that.

The Board adjourned to allow the applicant to address these and other

concerns raised by members of the Board and area residents. In a follow-up

memorandum dated April 20, 2016, the Board's Planning Engineer described

how the applicant proposed to address the parking issue:

The applicant is proposing to have a total of 281 seats
for the restaurant. There are 92 seats proposed inside
the restaurant area and 15 seats around the bar. There
are 32 seats proposed on the outside deck area and . . .
22 seats proposed on the outside bar. There are 120

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 seats proposed in a banquet room on the second floor
of the building. The 281 seats restaurant/banquet room
requires 124 parking spaces and the applicant is only
proposing 41 parking spaces on site. The applicant has
provided a variance justification and has provided a
lease agreement for 83 parking spaces that can be used
at [a location on] Shore Road.

....

The applicant shall provide testimony on the lease
agreement and how the cars will be parked on the
vacant lot. A survey of the property shall be provided
to ensure there are 53 parking spaces and if such
parking spaces are not available the applicant shall
request a parking variance for not meeting such
parking.

The Planning Engineer also recommended that the Board's attorney 2 review the

applicant's proposed lease agreement "for [requirements] that may be imposed

by the Board as a condition of approval."

On June 15, 2016, the Board reconvened to consider the applicant's

modifications. The applicant's attorney called Jon Barnhart, a licensed

professional planner and certified municipal engineer, to explain how the

application, as modified, exceeded the parking requirements. In response to

2
In the southern part of our State, it is customary to refer to attorneys who
represent municipal zoning boards and other similar public entities as
"solicitors." In the interest of clarity, we will refer to the Board's lawyer as "the
Board's attorney."
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counsel's question, Barnhart assured the Board "that whenever the banquet room

is open, there would be exclusively valet parking only for banquet." Barnhart

further testified that when, considering the on-site and off-site parking spaces

together, as provided by Section 250-61.3 of the Ordinance of the City of Somers

Point, the project "meet[s] and/or exceed[s] the parking requirement."

The record before us contains a copy of a lease agreement dated November

5, 2015, "entered into between Mac's Shore Development, LLC (Lessor) and

924 Ginger's on the Bay, LLC (Lessee)," through which the applicant leased a

vacant lot located at 861 Shore Road in Somers Point. This one-page agreement

contains a total of nine numbered paragraphs, which we recite verbatim:

1. The Lessor [sic] shall use the aforementioned land as
a parking lot for customers patronizing the restaurant
known as '924 Ginger's on the Bay' to be located at
______ and for no other purpose.

2. The term of the Lease shall begin on January 1, 2016.
The lease shall be in perpetuity but may end with
Lessee providing 120 day notice to the other party.
Term will be no less than twelve (12) months. Lessor
may end lease with 120 day notice to Lessee for sale of
property only.

3. Lessee shall pay total amount of __________ month
payable on the date of the lease commencement and
payable on that same day of every month.

MAKE RENT CHECKS PAYABLE TO: ___

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 MAIL RENT CHECKS TO: ___

4. Lessee shall not allow or commit any waste of the
premises, nor make any unlawful, improper or
offensive use of same.

5. Lessee may assign or sublet the property to provide
parking spaces for with prior approval of the property
owner, Mac's Shore Development, LLC.

6. Lessee shall permit Lessor and/or Rental Agent, their
agents, and employees upon request, to inspect the
property for any reasonable purpose connected with the
repair, improvements, care and management of the
property.

7. Lessee shall clean the property of any debris and
work with the municipality of Somers Point to comply
with any township 3 rules and regulations and to
improve the appearance of the property in general. Any
improvements require express written consent of the
Lessor. Lessee will ensure the property is clear of
debris on or before October 15, 2015. In the event the
Lessor cancels the lease prior to October 15, 2015,
Lessor shall reimburse Lessee for any expenditures
related to cleaning property.

8. Lessee shall maintain a liability insurance policy on
the property with Mac's Shore Development as the loss
payee. Minimum coverage shall be no less than
$1,000,000.

9. Lessee shall pay two (2) months security deposit to
be held in escrow.

3
We take judicial notice that Somers Point's municipal government is organized
as a City, not a Township. N.J.R.E. 201(a).
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 The lease was signed on February 17, 2016, by individuals purporting to

represent the corporate entities Mac's Shore Development, LLC, as lessor and

924 Ginger's on the Bay, LLC, as lessee. Plaintiff claims the aerial photograph

the applicant provided as an exhibit to the Board shows the leased lot is located

three and one half blocks from the restaurant. A number of objectors also

testified that the lot is listed for sale.

At the conclusion of the June 15, 2016 hearing, the Board's Planning

Engineer Richard Watkins reviewed the variances required by the application.

On the off-site parking issue, Watkins stated: "There's no parking variance as

such due to the lease agreement that's been submitted." The Board's attorney

also addressed the Board on the question of how to consider the off-site parking

issue:

BOARD ATTORNEY: [T]he Board has to determine
whether the long-term lease satisfies the ordinance. I
would say that the long-term lease should be filed with
the board secretary immediately if approval is granted.
There was a one-year lease presented, there was a 120
day notice of cancellation that the applicant -- if that
occurs, the applicant must report to the board secretary
and cease use once it expires on the lease until board
approval until they appear to comply with the parking
or seek a variance. And that goes with losing it in any
way, not just the 120 day notice, with any type of
notice. The off-site parking area shall comply with the
requirements of section 250-61.3. I went through that,
but just to reiterate that for the record.

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WATKINS: One comment, in regards to putting that
lease together and making sure that somebody is
looking at it, it may be beneficial to put something in
there that they can't get their mercantile license
renewed without having that lease agreement with it,
that way you can always check to make sure it's there.
. . . . That's the only way to look at it every year and
make sure it's there.

....

BOARD ATTORNEY: I have it as a condition. We
talked about section 250.61.3 and it's concerning off-
site parking and they comply with that provision. That
talks about that it has to be under a long-term lease,
which I stated earlier. It has to be for the exclusive use
of the owner/applicant and the spaces have to be clearly
marked and designated as being available only for use
by patrons of the business. They'll certify annually that
such spaces remain available for such use and that goes
along with the lease, I should say that. And there's
requirements and penalties if they don’t comply with
what we spoke about. All employees shall use the off-
site parking area. The applicant shall utilize valet
parking at any time the banquet facility is operating in
lieu of a loading zone and this is a variance, but I will
put it as a condition, they shall not use the loading zone
in lieu of that, they shall not load and unload during
business hours. All those conditions on Mr. Watkins's
report, filing of amended plans with the board showing
all modifications made at the prior meeting and
tonight's meeting including the deck area and removal
of the decking.

WATKINS: That's all the conditions that I have at this
point.

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 The Board adopted the resolution approving the Preliminary and Final

Major Site Plan application on July 20, 2016. Paragraphs 4, 5, and 6 addressed

the off-site parking requirement pursuant to City ordinance Sec. 250-61.3.

4) The proposed lease for off-site parking shall be filed
with the board secretary and shall be for a minimum of
one year. At the time of any notice to cease use of or
the termination of the lease from the owner of the
parking lot, applicant shall report such to the board
secretary immediately and cease the use of the proposed
second floor banquet area once the lease terminates
until this board hears an application as to the parking
requirements necessary under the ordinance. Upon the
termination of the off-site parking lease, the applicant
shall also, if necessary, eliminate the amount of seats
necessary to comply with the ordinance. The applicant
shall further obtain a mercantile license with the clerk's
office and provide a copy of the lease to the clerk and
follow such other requirements of the ordinance. The
off-site parking area shall comply with all the
requirements of the ordinances including but not
limited to the requirements of Sec. 250.61.3.

5) All employees of the business shall use the off-site
parking area.

6) The operators or owners of the restaurant shall
provide mandatory valet parking at any time the
banquet facility is being utilized.

[(Emphasis added).]

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 II

Plaintiff filed this action in lieu of prerogative writs before the Law

Division pursuant to Rule 4:69-6(b)(3), challenging the Board's decision on two

legal grounds. First, plaintiff argued the Board failed to properly apply the

standard codified in N.J.S.A. 40:55D-70(c)(1) and (2) for granting variances

from the municipality's zoning requirements. Second, plaintiff argued the Board

misapplied and abused its discretionary authority pursuant to Somers Point

Ordinance Section 250-61.3 by permitting the applicant to satisfy its on-site

parking requirements by entering into a lease that could be terminated merely

by the landlord providing only 120-day notice. After ostensibly conducting a

de novo review of the Board's interpretation of Section 250-61.3, the Law

Division deferred "to the Board's knowledge of local conditions" and upheld the

Board's decision.

In this appeal, plaintiff argues the Law Division erred when it upheld the

Board's approval of the front yard setback variance, and ignored the plain

language of Section 250-61.3 to find the applicant's lease for off-site parking

satisfied the requirements of the ordinance. The Board and the applicant both

urge us to affirm the Law Division's decision. We are satisfied the Law Division

erred as a matter of law when it found the lease agreement the applicant entered

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into met the project's parking requirement as a "long-term lease" under Section

250-61.3. Parking is a material factor in determining the project's suitability to

this area of the City. The applicant's failure to strictly adhere to the requirements

of Section 250-61.3 established sufficient grounds for the Board to deny the

Preliminary and Final Major Site Plan application as a matter of law.

We begin our analysis by describing the relevant standard of review.

Ordinarily, we review a decision made by municipal zoning boards with great

deference because of "their peculiar knowledge of local conditions." Dunbar

Homes, Inc. v. Zoning Bd. of Adjustment of Franklin, 233 N.J. 546, 558 (2018)

(quoting Price v. Himeji, LLC, 214 N.J. 263, 284 (2013)). "On the other hand,

. . . a board's decision regarding a question of law . . . is subject to a de novo

review by the courts, and is entitled to no deference since a zoning board has 'no

peculiar skill superior to the courts' regarding purely legal matters." Id. at 559

(quoting Chicalese v. Monroe Twp. Planning Bd., 334 N.J. Super. 413, 419 (Law

Div. 2000)).

We thus review the requirements imposed by Section 250-61.3 de novo,

"unconstrained by deference" to the decisions reached by the Board or the Law

Division Judge. State v. Grate, 220 N.J. 317, 329 (2015). A municipal

ordinance is a piece of legislation subject to judicial interpretation guided by the

A-5476-16T3
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same well-established rules of statutory construction applicable to any other

type of legislative enactment. Our goal is to give effect to the legislative body's

intent as evidenced by the language of the ordinance. The best indicator of the

legislative intent is the ordinance's plain language. DiProspero v. Penn, 183 N.J.

477, 492 (2005).

The ordinance's plain language must be construed "in context with related

provisions so as to give sense to the legislation as a whole." Spade v. Select

Comfort Corp., 232 N.J. 504, 515 (2018) (quoting N. Jersey Media Grp., Inc. v.

Twp. of Lyndhurst, 229 N.J. 541, 570 (2017)). Stated differently,"[u]nless it is

'inconsistent with the manifest intent of the legislature,' or 'another or different

meaning is expressly indicated,' we ascribe to the Legislature's words and

phrases 'their generally accepted meaning, according to the approved usage of

the language.'" Finkelman v. Nat'l Football League, 236 N.J. 280, 289 (2019)

(quoting N.J.S.A. 1:1-1).

Section §250-61.3 provides:

Notwithstanding anything to the contrary contained in
§ 250-61.2, in the sole discretion of the Somers Point
Planning Board or Somers Point Board of Adjustment,
as the case may be, an applicant/owner of a property or
business may include off-site parking spaces located in
a private owned lot or parking garage only if such
spaces are under long-term lease to the owner/applicant
for the exclusive use of said owner/applicant and such

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 spaces are clearly marked and designated as being
available only for use by patrons of such business or
property; an owner/applicant shall continue to certify
annually that such spaces remain available for such
exclusive use.

A plain reading of the ordinance's prefatory language gives the Board

"sole discretion" to permit an applicant to satisfy a project's on-site parking

requirement by including "off-site parking spaces located in a private owned lot

or parking garage[.]" Pursuant to Section 114.51, restaurants are required to

provide "one onsite off-street parking space for each three seats devoted to

service." Here, the applicant sought Board approval for a restaurant with a

seating capacity of 182, while providing only 42 onsite off-street parking spaces.

Under the 3/1 ratio codified under Section 114.51, the restaurant is required to

provide 61 on-site off-street parking spaces. In lieu of treating this shortfall as

a variance subject to the standards of N.J.S.A. 40:55D-70(c)(1) and (2), the

Board opted to exercise its discretion under Section 250-61.3 and allowed the

applicant to cure this deficiency by securing additional off-site parking spaces

"located in a private owned lot or parking garage."

However, to accomplish this under Section 250-61.3, the off-site parking

spaces must be "under long-term lease to the owner/applicant for the exclusive

use of said owner/applicant and such spaces are clearly marked and designated

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as being available only for use by patrons of such business or property."

(Emphasis added). The ordinance does not define "long-term lease." The record

developed before the Board is devoid of any data to guide the Board on how this

term has been used or construed in the context of other similar applications. The

applicant did not present the testimony of a local real estate broker or agent to

provide the Board with empirical data of the length of the terms of commercial

leases in general, and if available, of parking lot leases in particular.

In this light, we are left to construe the term "long-term lease" by applying

our collective common sense and experience as jurists. In our judgment, no

reasonable person can construe the lease entered into by the applicant here as a

"long-term lease." Paragraph 2 of this one-page lease provides:

The term of the Lease shall begin on January 1, 2016.
The lease shall be in perpetuity but may end with
Lessee providing 120 day notice to the other party.
Term will be no less than twelve (12) months. Lessor
may end lease with 120 day notice to Lessee for sale of
property only. (Emphasis added).

A plain reading of this language shows the actual guaranteed term of the

lease is four months. Either party has the express authority to terminate the

lease by merely providing 120-day prior notice. The applicant-lessee may serve

the landlord with the notice to terminate at any time. The landlord may

terminate the lease "with 120 day notice to Lessee for sale of property only."

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This provision does not limit the landlord in any other way. Based on the

ambiguous language used here, the landlord may terminate the lease when it

decides to place the property "for sale." The lease does not contain a right of

first refusal clause, giving the applicant-tenant the right to purchase the property

under the same terms and conditions made by a bona fide purchaser in an arm's-

length transaction.

Furthermore, the lease document purportedly "signed" by the applicant

and the owner of the property does not include the dimensions of the parking lot

and an architectural drawing showing the number of "clearly marked" parking

spaces the lot would accommodate. Finally, the Board's resolution directed that

"[a]ll employees of the business shall use the off-site parking area." This is in

direct violation of the plain language of Section §250-61.3, which requires off-

site parking to be "available only for use by patrons of such business or

property." (Emphasis added).

Independent of these impediments, plaintiff also raised a number of

practical and legal concerns about the Board's ability to enforce a number of key

aspects of this off-site parking arrangement. The applicant's planner candidly

testified that the restaurant's business model depended on maximizing the use of

the available seating capacity. In response to concerns raised by the Board at

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the February 17, 2016 meeting, the applicant reduced the number of seats by

reconfiguring the internal layout of the restaurant, while leaving the structure's

architectural footprint intact. The efficacy of the valet parking requirement, as

a means of mitigating the negative effect on-street parking would have for area

residents, is entirely dependent on the willingness of the patrons to use this

amenity. Furthermore, valet service itself would unavoidably exacerbate traffic

congestion in the area. These disruptive factors are inextricably linked to the

scale of the applicant's project. Reducing the size of the restaurant to conform

to the property's capacity to provide on-site, off-street parking would eliminate

this problem. Whether this alternative is economically feasible or consistent

with the applicant's business model is not a valid zoning consideration.

Based on our de novo review, we conclude the Law Division erred in

finding the applicant's proposed lease to provide off-site parking satisfied the

requirements of Section 250-61.3 of the Ordinance of the City of Somers Point.

The Board's July 20, 2016 resolution approving the applicant's Preliminary and

Final Major Site Plan is vacated.

Reversed.

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