NOT FOR PUBLICATION WITHOUT THE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-3839-16T1
CT TR HOLDINGS, LLC, DT TR
HOLDINGS, LLC, CT95-CT07
TR HOLDINGS, LLC, and DT95-DT-07
TR HOLDINGS, LLC,
Plaintiffs-Appellants,
v.
TOMS RIVER PLANNING BOARD and
SEASIDE HEIGHTS HOSPITALITY, LLC,
Defendants-Respondents.
_______________________________________
Argued July 31, 2018 – Decided August 9, 2018
Before Judges Sabatino, Mayer and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-2411-
16.
R.S. Gasiorowski argued the cause for
appellants (Gasiorowski and Holobinko,
attorneys; R.S. Gasiorowski, on the briefs).
Gregory P. McGuckin argued the cause for
respondent Toms River Planning Board (Dasti,
Murphy, McGuckin, Ulaky, Koutsouris & Connors,
attorneys; Gregory P. McGuckin, of counsel;
Martin J. Buckley, on the brief).
Michael B. York argued the cause for
respondent Seaside Heights Hospitality, LLC,
(Novins, York & Jacobus, attorneys; Michael
B. York, on the brief).
PER CURIAM
Plaintiffs, property owners in Toms River Township, appeal
from the trial court's April 3, 2017 order rejecting their
challenge to the Township Planning Board's approval of the
defendant developer's land use application to build a four-story
hotel in the Township. Plaintiffs contend the Planning Board:
lacked jurisdiction over facets of the application; failed to find
the undue hardship needed to justify a deviation from the zoning
ordinance's limitation of buildings to three stories;
unjustifiably granted numerous variances; and acted, on the whole,
arbitrarily and capriciously in approving the application.
For the reasons that follow, we affirm the trial court's
sound decision in all but one respect. We remand for the limited
and sole purpose of the Planning Board reopening the matter to
consider whether the developer is entitled to a variance under
either N.J.S.A. 40:55D-70(c)(1) or (c)(2) from the zoning
ordinance's three-story limitation.
I.
The developer, defendant Seaside Heights Hospitality, LLC
("SHH"), is the owner of Block 1077, Lots 1 and 2 in Toms River
Township. The property is on the north (westbound) side of State
2 A-3839-16T1
Highway 37 and is situated in the Township's Highway Business
Zoning District. The property is presently the site of the Pine
Rest Motel.
SHH proposes to replace the existing motel with a new Hampton
Inn Hotel, with associated parking and amenities. The new hotel
would contain seventy-two guest units and occupy four stories. A
hotel use is permitted in the zone. However, SHH requested several
variances, as shown in this chart.1
Principal Required/ Proposed Ordinance
Building Permitted
Minimum front 60 feet 38.61 feet 348-
yard setback 10.26E(5)(a)
(Route 37)
Minimum front 60 feet 51.82 feet 348-
yard setback 10.26E(5)(a)
(Adams Avenue)
Maximum 40 feet, 3 useable 43 feet, 4 348-10.26E(8)
building floors useable
height floors
Parking Required/ Proposed Ordinance
Permitted
Minimum Parking 81 72 348-
Spaces 8.20(O)(24),
(Including (14), (32)
hotel, meeting
room, and
restaurant)
Minimum 4 3 348-8.38B
Handicapped
Parking Spaces
1
The chart is derived from the third planning report in the
plaintiffs' appendix.
3 A-3839-16T1
Isles2 10 feet wide 4 feet to 7 348-8.20J(8)
feet
Fence Required/ Proposed Ordinance
Permitted
Front Yard 60 feet 1 foot 348-8.13A
Setback (Adams
Avenue)
Refuse Required/ Proposed Ordinance
Enclosures Permitted
Minimum Front 60 feet 20 feet 348-8.27A
Yard Setback
Minimum 10 feet 4 feet 348-8.27I
Distance from
Side Property
Line
Ground Signs Required/ Proposed Ordinance
Permitted
Minimum Sign 30 feet 2.2 feet 348-
Setback from 8.26A(3)(c)
ROW
Maximum Height 30 feet 38 feet, 6 348-8.26A(4) &
(Left Side inches 348-
Elevation) 8.26A(2)(Table
1)
Maximum Height 30 feet 38 feet, 6 348-8.26A(4) &
(Right Side inches 348-
Elevation) 8.26A(2)(Table
1)
Maximum Height 30 feet 38 feet, 6 348-8.26A(4) &
(Rear inches 348-
Elevation) 8.26A(2)(Table
1)
2
Although not contained in the third planning report, this
particular variance was discussed and granted at the public
hearing.
4 A-3839-16T1
In January 2016, SHH applied to the Planning Board, seeking
preliminary and final major site plan approval for the proposed
hotel, including the above-noted variances and several design
waivers. On July 6, 2016, the Planning Board conducted a public
hearing on SHH's application. Professional engineer Brian Murphy,
the sole witness, testified as an expert for SHH.3
As described by Murphy, along the south side of the property
is Route 37 and various marinas, along the west side is a self-
storage facility and woods, along the east side is a dog grooming
facility, and along the north side is Adams Avenue and a
residential development. The residential development does not
front Adams Avenue. All of the residences abut the subject
property through rear yards.
Because the proposed project does not have any access points
from Adams Avenue, Murphy concluded the project would cause no
intrusion into the residential area. There would be a single
point of access to the new hotel from Route 37. SHH plans to
provide a curb and sidewalks along both Route 37 and Adams Avenue.
Regarding the front setbacks, Murphy stated that the main
building conforms to the zone's setback requirements. However,
3
Murphy had testified before the Planning Board in the past, and
the Board accepted him as an expert witness. His full credentials
(which plaintiffs do not challenge) are not detailed in the record
supplied on appeal.
5 A-3839-16T1
he noted variances were necessary because the canopy along Route
37 and the doorway of the rear entry at the bottom level along
Adams Avenue involved a "unique situation," in which there were
two front setbacks associated with the property.
As to the building height, Murphy noted that the requested
height of forty-three feet was about a seven and one-half percent
increase above the forty-foot maximum because the front setbacks
had lowered the amount of buildable area. Murphy further noted
that the property is located in a flood zone and the existing
structures are all under the permitted floor elevation. Because
the new building will be complying with the floor elevation limits,
the main floor and "mechanicals" will be above the floor elevation
and everything else would be "pushed up" as well. Murphy commented
that this arrangement has a better visual impact for the area and
the property, and that the actual footage of the height variance
is three feet, less than the ten percent maximum set forth in
N.J.S.A. 40:55D-70(d)(6). Murphy noted that having four stories
instead of three makes the building more visible.
Murphy explained that to use the meeting room (which is likely
going to be a fitness room) or the restaurant area, customers
would have to be patrons of the hotel, so providing separate
parking for such persons is not necessary. Murphy further
explained that SHH wants to remove an existing fence and install
6 A-3839-16T1
a newer, more attractive-looking, one along Adams Avenue. The
replacement fence will provide a better physical and visual barrier
between the new hotel and the residential units.
Murphy noted that the refuse area, which is located in the
northeast corner of the property, requires variances. Although
the Adams Avenue area functions as a back area, it is actually a
front yard, and the ordinance disallows a refuse area in front
yards. Murphy also requested a variance for a proposed pylon
sign.
Murphy explained that SHH did not propose a loading zone
because the building was self-sufficient, other than loading for
coffee and orange juice during off-hours. Murphy explained that
because of the location of the parking stalls, SHH is providing a
physical buffer between the aisle and the parking areas.
Murphy reported that SHH had met with representatives of the
State Department of Environmental Protection, and was told SHH did
not need to conduct water quality improvements, because any
drainage installed would not be effective due to tidal conditions,
and the stone on the site had been compacted for over fifty years.
Moreover, CAFRA approval had already been granted. Although SHH
planned on reducing the water flow and runoff slightly, the runoff
impact on the area was negligible.
7 A-3839-16T1
As Murphy acknowledged, SHH did require variances for parking
and access. A Board member expressed concerns about access for
emergencies, and suggested a gate in the fence and a depressed
curb for emergency vehicles to access the building from the back.
SHH agreed to do this. Board members also asked questions about
parking, the hotel rooms, the showers, and the landscaping. SHH
agreed to move the fence in to allow planting on the exterior.
On the whole, Murphy opined that the assorted variances and
design waivers sought by SHH could be granted without substantial
detriment to the zoning ordinance and master plan. He testified
the overall plan was an upgrade to what exists now because of the
improved safety against flood and better visual design.
He asserted that the overall benefits of the proposed hotel
outweigh any detriments. No questions were posed from the audience
at the hearing.
The Board unanimously voted to approve the project. The
Board passed the associated written resolution on July 20, 2016.
Plaintiffs, CT TR Holdings, LLC, DT TR Holdings, LLC, CT95-
CT07 TR Holdings, LLC, and DT95-DT-07 TR Holdings, LLC, are owners
of Block 688.03, Lot 27 in the Township. As represented by counsel
at the appellate oral argument, plaintiffs' property does not abut
the subject parcel and is apparently within about a half mile of
it.
8 A-3839-16T1
In August 2016, plaintiffs, who had not appeared at the
Planning Board hearing to oppose the application, filed an action
in lieu of prerogative writs in the Law Division, contesting the
approval of SHH's project. After briefing, the trial court heard
oral argument on April 3, 2017. That same day, the court issued
an order upholding the Board's decision in all respects,
accompanied by a detailed fifteen-page written opinion.
Among other things, the trial court found that the Planning
Board had jurisdiction over SHH's application. It specifically
concluded that SHH did not need to obtain from the Zoning Board
of Adjustment a variance for the height of the building under
N.J.S.A. 40:55D-70(d)(6). The court found subsection (d)(6)
inapplicable because the height variance of three feet sought by
SHH was less than ten percent of the maximum permitted height of
forty feet. The court also noted that there was "undue hardship"
to justify the slight deviation from the height restriction because
of flood zone requirements and FEMA regulations.
The trial court analyzed numerous other challenged aspects
of the Planning Board's decision, and rejected those challenges.
The court recognized that the law generally calls for considerable
deference to land use bodies in reviewing their findings. Applying
those principles of deference, the court found ample evidence in
the record supports the Board's grant of the variances and its
9 A-3839-16T1
determination that the approvals will not cause substantial
detriment to adjacent property owners. Consequently, the court
dismissed plaintiffs' complaint.
On this appeal, plaintiffs argue that: (1) SHH required a
(d)(6) variance from the Zoning Board of Adjustment; (2) the record
lacked evidence to support a (c)(1) variance for the nonconforming
number of stories, and the Planning Board made no finding of undue
hardship to justify such relief; and (3) the collective grant of
numerous other variances has essentially "rezoned" the property
and inflicted "substantial detriment" upon surrounding properties
"by minimizing setbacks, eliminating buffers, and creating unsafe
and deficient parking." The Planning Board and SHH oppose those
assertions, and advocate that we affirm the trial court's
decision.4
II.
As the trial court aptly recognized, the scope of judicial
review in this land use matter is circumscribed. "[P]ublic [land
use] bodies, because of their peculiar knowledge of local
conditions, must be allowed wide latitude in their delegated
discretion." Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597
(2005) (citing Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268,
4
We were advised at oral argument that the hotel project has not
yet been built, in light of the pendency of this appeal.
10 A-3839-16T1
296 (1965), and upholding the grant of a hardship variance). The
ordinary standard of judicial review applied to such decisions by
a land use body is to determine whether the decision was
"arbitrary, capricious, or in manifest abuse of its discretionary
authority . . . ." Ibid.
As the Supreme Court has repeatedly instructed, "courts
ordinarily should not disturb the discretionary decisions of local
[land use] 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 of
the Borough of N. Caldwell, 160 N.J. 41, 58-59 (1999). "Even when
doubt is entertained as to the wisdom of the action, or some part
of it, there can be no judicial declaration of invalidity in the
absence of clear abuse of discretion by the public agencies
involved." Kramer, 45 N.J. at 296-97.
That said, determinations on questions of law in land use
matters do not warrant equivalent deference, and are reviewed de
novo. Bubis v. Kassin, 184 N.J. 612, 627 (2005). The de novo
standard of review of such legal decisions continues on appeal
after a trial court has made its own ruling. See James R. Ientile,
Inc. v. Zoning Bd. of Adjustment, 271 N.J. Super. 326, 329 (App.
Div. 1994) (citing Cherney v. Matawan Borough Zoning Bd. of
Adjustment, 221 N.J. Super. 141, 144-45 (App. Div. 1987)).
11 A-3839-16T1
The primary focus of plaintiffs' appeal centers upon the
hotel project's deviations from the building height and floor
restrictions set forth in the Township's code. In that regard,
Section 348-10.26(E)(8) of the code prescribes the following
limitations for structures within the highway business zone:
Maximum building height: 40 feet subject to
the provisions of § 348-5.125. In any event,
the building shall not contain more than three
usable floor levels counted vertically at any
point in the building above the grade level
as determined by the average grade elevation
of the corners of the building.
[(Emphasis added).]
This portion of the governing ordinance thus imposes two distinct
requirements: (1) that the building be no more than forty feet
high; and (2) that the building contain no more than three stories.
Here, SHH seeks to build a hotel that deviates from these
requirements, with a structure that would be three feet over the
height limitation and contain a disallowed fourth story with guest
rooms.
Pursuant to the Municipal Law Use Law ("MLUL"), N.J.S.A.
40:55D-1 to -163, a "subsection (d)(6)" height variance is required
when "a height of a principal structure . . . exceeds by 10 feet
or 10% the maximum height permitted in the district for a principal
5
The cross reference to Section 348-5.12 does not bear upon this
case.
12 A-3839-16T1
structure." See also Shri Sai Voorhees, LLC v. Twp. of Voorhees,
406 N.J. Super. 497, 504 (Law Div. 2009). The power to grant such
a variance under subsection (d)(6) ordinarily would fall within
the jurisdiction of the local Zoning Board of Adjustment. N.J.S.A.
40:55D-70.
Conversely, if the height of a proposed structure only exceeds
the maximum permissible height by less than ten feet and by less
than ten percent, then a (d)(6) variance is not needed, and the
applicant can instead seek relief through a variance under
subsection (c)(1) or (c)(2) of the statute.6 Shri Sai, 406 N.J.
Super. at 504; see also Cox, Koenig, Drill & John-Basta, New Jersey
Zoning & Land Use Administration, § 35-4 at 755-56 (2018). Such
variances under subsection (c) may be issued by a local Planning
Board as part of a land use application within that body's
jurisdiction. Shri Sai, 406 N.J. Super. at 504. See also N.J.S.A.
40:55D-70(c).
The trial court concluded that a (d)(6) height variance was
not necessary in this case, since the three extra feet that deviate
6
A leading land use treatise advises that "[w]here the [ordinance]
limitation as expressed in stories is exceeded but the limitation
in feet is not it would seem appropriate to treat the application
as a c variance inasmuch as the [d(6) provision of the] statute
requires that the structure exceed the height limitation by '10
feet or 10%.'" Cox, Koenig, Drill & John-Basta, New Jersey Zoning
& Land Use Administration, § 29-3.4 at 649.
13 A-3839-16T1
from the ordinance's forty-foot height limitation fall within the
ten-foot and ten-percent statutory exceptions. We agree.
Consequently, the Planning Board properly exercised jurisdiction
to consider SHH's request for a (c)(1) height variance.
N.J.S.A. 40:55D-70(c)(1) sets forth these criteria to qualify
for a subsection (c)(1) variance:
Where: (a) by reason of exceptional
narrowness, shallowness or shape of a specific
piece of property, or (b) by reason of
exceptional topographic conditions or
physical features uniquely affecting a
specific piece of property, or (c) by reason
of an extraordinary and exceptional situation
uniquely affecting a specific piece of
property or the structures lawfully existing
thereon, the strict application of any
regulation pursuant to article 8 of this act[]
would result in peculiar and exceptional
practical difficulties to, or exceptional and
undue hardship upon, the developer of such
property, grant, upon an application or an
appeal relating to such property, a variance
from such strict application of such
regulation so as to relieve such difficulties
or hardship . . . .
[(Emphasis added).]
"Generally, a variance under c(1) must be grounded in conditions
peculiar to the particular lot as distinguished from other
properties in the zone." Cox, Koenig, Drill & John-Basta, New
Jersey Zoning & Land Use Administration, § 29-2.4 at 618.
In addition, an applicant for a subsection (c)(1) variance
must demonstrate that: (1) the application would not cause a
14 A-3839-16T1
substantial detriment to the public good, and (2) that the variance
will not substantially impair the intent and purpose of the zone
plan and zoning ordinance. Ten Stary Dom P'Ship v. Mauro, 216
N.J. 16, 29 (2013).
As noted, an applicant for a subsection (c)(1) variance must
also show undue hardship. Lang, 160 N.J. at 52-53. The concept
of undue hardship in this context solely refers to the particular
physical conditions of the property and not to personal financial
hardship. Ten Stary, 216 N.J. at 29-30.
Here, the Planning Board determined, and the trial court
agreed, that the flood zone requirements for the subject property
created an undue hardship. SHH's expert explained the existing
motel building does not comply with the FEMA regulations that came
into effect after it was built; the FEMA regulations made it so
that "the main floors [in the proposed hotel] will be above the
floor elevations[,]" and "[a]ll the mechanicals[7] will be up above
the floor elevation[,] . . . pushing up everything[,]" and that
the height variance would create a better visual impact on the
area and the property. Further, as case law has recognized, the
MLUL encourages municipalities to guide the development of the
7
It appears that the term "mechanicals," as used within the
context of this record, refers to heating, air conditioning, and
electrical equipment needed to service the building as a whole.
15 A-3839-16T1
land to minimize threats from fire, flood, and other natural
disasters and promote desirable visual environment. Ten Stary,
216 N.J. at 31. Murphy opined that the variance could be
accomplished without substantial detriment and that the benefits
outweigh any detriment.
The Planning Board was persuaded by this testimony and
concluded that SHH established undue hardship to justify a three-
foot deviation from the zone's forty-foot height limitation and
other specified deviations from the code. The Board further
concluded that SHH satisfied the negative criteria for a (c)(1)
variance because the deviations will not cause substantial
detriment. The trial court deferred to these well-supported
findings, and so do we.
Unfortunately, however, the Planning Board made no findings
in its resolution addressing whether SSH fulfilled the criteria
for a subsection (c) variance as to the distinct separate provision
within Ordinance § 348-10.26(E)(8) restricting buildings in the
zone to three floors. Logically, the floor restriction addresses
policy concerns that go beyond the mere total height of a building.
Adding a fourth floor to a hotel will surely create more usable
space for guest rooms, and, in turn, proportionately create more
traffic, parking needs, noise, demands on services, and other land
use impacts. Presumably the governing body of the Township had
16 A-3839-16T1
such concerns in mind when it included the three-story floor
restriction in the ordinance, prefaced by the phrase, "in any
event, . . ." after expressing the forty-foot height limitation.
The floor restriction is clearly an independent requirement
of the ordinance that must be observed, in addition to its maximum
height requirement. To be sure, height and floor restrictions are
related to one another, as we are mindful that general building
code restrictions dictate minimum ceiling heights for occupied
floors. But there is sufficient variation in how far a developer
may choose to exceed such per-floor ceiling minimums, so as to
make the ordinance's limit on the number of floors a meaningful
separate requirement.
The present record is bereft of any testimony or other
evidence that specifically addresses under subsection (c)(1) why
the additional fourth floor of the proposed hotel is needed to
avoid an undue hardship and why such a deviation comports with the
applicable negative criteria under the MLUL. At most, there is a
passing reference to the "visibility" of the hotel from the
surrounding area, but that is a characteristic more relevant to
height rather than to the number of floors. Conceivably, the
hotel could be forty-three feet high and contain only three floors
having slightly higher ceilings.
17 A-3839-16T1
The key point is this discrete floor issue was not addressed
in the record, nor in the Planning Board's resolution. Because
of that material omission, the issue must be remanded to the
Planning Board for its consideration at a new hearing, with
appropriate public notice. At such a hearing, SHH may seek
variance relief under subsection (c)(1) of the MLUL or, if more
appropriate, subsection (c)(2).8
Aside from the floor issue, we are unpersuaded by the
remaining arguments presented on appeal, as none of them deserve
comment in light of our limited scope of review. R. 2:11-
3(e)(1)(E). We therefore affirm on all of the other issues raised,
substantially for the sound reasons expressed in the trial court's
written opinion.
The matter accordingly is remanded to the Planning Board for
rehearing. At such a hearing, and in any ensuing litigation,
plaintiffs shall be precluded by principles of res judicata from
raising any new issues or relitigating matters we have resolved
8
In contrast to subsection (c)(1), subsection (c)(2) authorizes
variances where "in an application or appeal relating to a specific
piece of property [it is shown that] the purposes of this act . . .
would be advanced by a deviation from the zoning ordinance
requirements and the benefits of the deviation would substantially
outweigh any detriment, [the Board may] grant a variance to allow
departure from regulations pursuant to article 8 of this act
. . . ." N.J.S.A. 40:55D-70(c)(2); see also Lang, 160 N.J. at 55-
57; Green Meadows at Montville, LLC v. Planning Bd. of the Twp.
of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000).
18 A-3839-16T1
on this appeal. That said, nothing forecloses SHH from revising
its project plans for renewed consideration by the Board. Any
final decision of the Board on remand may be reviewed in a timely
action before the trial court.
Affirmed in part, and remanded in part. We do not retain
jurisdiction and do not specify any date for the completion of the
remand.
19 A-3839-16T1