ANDREW REGER VS. FAIR HAVEN ZONING BOARD OF ADJUSTMENT (L-2591-19, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-2755-19

ANDREW REGER,

Plaintiff-Appellant,

v.

FAIR HAVEN ZONING BOARD
OF ADJUSTMENT and FAIR
HAVEN RETAIL, LLC,

Defendants-Respondents.
_____________________________

Argued April 26, 2021 – Decided June 30, 2021

Before Judges Gooden Brown and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-2591-19.

R.S. Gasiorowski argued the cause for appellant
(Gasiorowski & Holobinko, attorneys; R.S.
Gasiorowski, on the briefs).

Michael A. Irene, Jr., argued the cause for respondent
Fair Haven Zoning Board of Adjustment.
 Adam Garcia argued the cause for respondent Fair
Haven Retail, LLC (Giordano, Halleran & Ciesla,
attorneys; Adam Garcia, on the brief).

PER CURIAM

Plaintiff Andrew Reger appeals from the January 27, 2020 order of the

Law Division dismissing his complaint in lieu of prerogative writ challenging

the June 6, 2019 resolution of defendant Fair Haven Zoning Board of

Adjustment (Board). The June 6, 2019 resolution affirmed a determination of

the Fair Haven zoning officer that a proposed restaurant was a permitted use

under the local zoning ordinance. We affirm.

I.

The following facts are derived from the record. Defendant Fair Haven

Retail, LLC (FHR) owns a commercial shopping plaza in Fair Haven. FHR

proposed to locate a Dunkin' Donuts restaurant in an empty tenant space at its

property. The proposed restaurant included interior seating, but no drive -

through window, exterior menu board, outside seating, or designated area for

consumption of food in vehicles.

The zoning ordinance contemplates four types of restaurants: Category

One, Category Two, Category Three, and Drive-In Restaurant. The primary

issue before the court is whether the FHR's proposed Dunkin' Donuts is, under

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the ordinance, a Category Two restaurant, which is a permitted use at FHR's

property, or a Drive-In restaurant, which is not a permitted use. The categories

of restaurants are defined in the ordinance as follows:

Restaurant, Category One: Category One Restaurant
means a restaurant which is designed for and whose
primary function and operation is the preparation and
service by employees of meals to a customer or
customers seated at a table at which the meal is
consumed. A category one restaurant operates without
substantial carry-out service; with no delivery service;
with no drive-thru, drive-in or service in vehicles; and
without service at counters or bars unless the restaurant
is licensed to serve alcoholic beverages.

Restaurant, Category Two: Category Two Restaurant
means a restaurant whose primary function is the
preparation and service by employees of food or drink
to customers as part of an operation which may be
designed with carry-out service; delivery service; self-
service; or on-premises consumption except that no
drive-in, drive-thru, or service in vehicles is permitted.

Restaurant, Category Three: Category Three
Restaurant means a restaurant whose primary function
is the preparation and service by employees of food or
drink to customers as part of an operation which may
be designed with carry-out service; delivery service;
self-service; on-premises consumption; or customer
pick-up service utilizing a vehicular drive-thru.

Restaurant, Drive-In Restaurant: Drive-In Restaurant
means an establishment where the majority of the
patrons purchase food, soft drinks, ice cream, and
similar confections for takeout or consumption on the
premises but outside the confines of the principal

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 building, or in automobiles parked upon the premises,
regardless of whether or not, in addition thereto, seats
or other accommodations are provided for the patrons.

In 2018, FHR submitted a zoning permit application to the municipal

zoning officer for the proposed restaurant. FHR took the position that the

proposed restaurant is a Category Two restaurant and was exempt from site plan

review. The zoning officer denied the permit. Although he determined that the

proposed restaurant is a Category Two restaurant permitted at the property, he

also concluded that the proposal is not exempt from site plan review.

FHR subsequently submitted a site plan application to the municipality's

Planning Board. While the application was pending, Reger filed an appeal to

the Board challenging the zoning officer's determination that the proposed

restaurant is a Category Two restaurant and seeking an interpretation of the

zoning ordinance. 1

The Board held two days of hearings spanning eight and one-half hours

on Reger's appeal. The zoning officer explained how he reached his decision.

First, he determined that the proposed restaurant is not a Category Three

restaurant because it has no drive-thru service, exterior menu board, walkup

1
Another resident, Gail O'Reilly, made a similar application to the Board, which
consolidated the two applications. O'Reilly's claims are not before us.
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service, or pick-up window. Second, he determined the proposed restaurant is

not a Drive-In restaurant because it is not designed with an area for on-premises

consumption outside the principal building. Third, he determined that the

proposed restaurant is not a Category One restaurant because it is not primarily

a sit-down, table service restaurant. Finally, the zoning officer determined that

Category Two restaurant is the "best fit" for the proposed restaurant because it

has interior seating, as well as carry-out service, but no drive-thru, exterior menu

board, pick-up window, or service in vehicles.

The zoning officer also testified that, having conducted an extensive

analysis of prior restaurant applications in the municipality, his determination is

consistent with the Board's historical interpretation of the zoning ordinance. He

identified several restaurants, including an ice cream shop in the same shopping

center as the proposed restaurant, that are similar to the proposed restaurant and

were approved by the municipality as Category Two restaurants.

The Board also heard testimony from Michael Simpson, an expert

presented by Reger, who opined that the proposed restaurant is a Drive-In

restaurant because, in his view, a majority of Dunkin' Donuts patrons purchase

food for takeout, which satisfies the first prong of the definition of Drive-In

restaurant in the ordinance, whether or not the food is consumed on premises .

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 Nicolas Graviano, a licensed professional planner, testified on behalf of

FHR. He offered the opinion that the proposed restaurant is a Category Two

restaurant. According to Graviano, the ordinance creates a three-prong

definition for a Category Two restaurant. First, the primary function of the

establishment must be the preparation of food for service to customers. He

testified that it is undisputed that the proposed restaurant satisfies this prong.

Second, the establishment may incorporate carry-out service and delivery

service, as well as on-site consumption. He testified that the proposed restaurant

satisfies this prong because it provides both carry-out service and on-site

consumption. Third, the proposed restaurant must have neither a drive-thru lane,

drive-thru window, nor a drive-in operation. He testified that the proposed

restaurant has none of these features. There is no dispute that the proposed

restaurant does not have a drive-thru lane or drive-thru window.

Graviano testified that the proposed restaurant is not a drive-in operation

because the primary characteristic in the definition of a Drive-In restaurant is

that a majority of customers purchase food for take-out or consumption on the

premises outside of the principal building or in vehicles. The proposed Dunkin'

Donuts is not designed to permit consumption of its products on the premises

outside of the principal building or in vehicles. The proposed restaurant has

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tables only in the principal building and no designated area or accommodations

for on-premises consumption outside the principal building or in the parking lot

and no delivery of food to vehicles.

Several members of the public testified before the Board. They raised

concerns about the impact the proposed restaurant would have on the volume of

vehicular traffic on River Road, on which the shopping plaza is located.

Reger's counsel attempted to submit to the Board a parking and circulation

evaluation prepared for FHR by Karl Pehnke, PE, of an engineering and

environmental services firm. The letter contains the expert's opinion that

existing access, parking, and traffic circulation at the shopping center will be

adequate for the proposed restaurant. To reach that conclusion, Pehnke relied

on the presumption that ninety to ninety-five percent of the proposed restaurant's

patrons will carry their purchases out of the store. Reger did not offer to call

Pehnke as a witness and likely could not do so given Pehnke's retention as an

expert by FHR. He sought the admission of the expert's written opinion without

affording the Board the opportunity to question its author. The Board declined

to admit the evaluation because it was not before the zoning officer when he

made his decision and because traffic flow at the shopping center was not

relevant to the restaurant definitions in the ordinance.

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 On June 6, 2019, the Board adopted a resolution affirming the zoning

officer's determination that the proposed restaurant is a Category Two restaurant

permitted at FHR's property. The resolution set forth an extensive analysis of

the zoning ordinance and a detailed explanation of the Board's decision. The

Board adopted the testimony and analyses of the zoning officer and Graviano

and concluded there was a natural progression in the ordinance. The Board

explained that a Category One restaurant is a typical sit-down, table service

restaurant with limited take-out service. A Category Two restaurant is similar

to a Category One restaurant, except that it may incorporate carry-out service

and delivery service, along with on-site consumption, but may not offer drive-

thru service. A Category Three restaurant is similar to a Category Two

restaurant, but is permitted to incorporate customer pick-up service using a

vehicular drive-thru. Finally, a Drive-In restaurant differs from the other

categories of restaurants because it offers on-premises consumption outside the

principal building or in vehicles. The Board found this category is intended to

refer to "classic drive-ins," such as "Stewart's," "Sonic," and the like.

On July 24, 2019, Reger filed a complaint in lieu of prerogative writ in

the Law Division challenging the Board's resolution. He disputed both the

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substantive basis for the resolution and the Board's decision not to admit

Pehnke's evaluation.

On January 15, 2020, Judge Owen C. McCarthy issued a comprehensive

oral opinion affirming the Board's resolution and dismissing the complaint.

Judge McCarthy reviewed the Board's decision, summarized the testimony on

which it was based, and concluded that the Board's interpretation of the zoning

ordinance was reasonable and supported by the record. The judge noted that the

Board's decision is consistent with the commonly understood definition of a

drive-in restaurant and comports with the historical application of the

municipality's zoning ordinance to restaurants similar to the proposed Dunkin'

Donuts. The judge rejected as "overly expansive" Reger's argument that "any

restaurant where customers drive their vehicles to a location, park their vehicles,

exit their vehicles and enter an establishment to purchase food or refreshments

before returning to their vehicles to leave the property is a drive-in restaurant."

In addition, Judge McCarthy concluded that the Board did not abuse its

discretion when it declined to admit the expert evaluation into evidence. The

judge found that the contents of the report were not relevant to the issue before

the Board because the restaurant definitions in the zoning ordinance are not

dependent on the amount of traffic generated by a restaurant. In addition, the

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judge noted that the author of the evaluation was not present to testify before

the Board. The judge concluded that admission of the evaluation without the

author's testimony would violate "the most basic elements of fairness and due

process."

A January 27, 2020 order memorializes the trial court's decision.

This appeal follows. Reger raises the following arguments.

POINT ONE

THE ZONING BOARD'S INTERPRETATION OF ITS
LAND USE AND DEVELOPMENT'S [SIC]
REGULATION DEFINITIONS OF A CATEGORY
TWO RESTAURANT AND A DRIVE-IN
RESTAURANT IS INCORRECT AS A MATTER OF
LAW.

POINT TWO

THE ZONING BOARD ERRED IN REFUSING TO
ALLOW INTO EVIDENCE THE AUGUST 20, 20[1]8
LETTER OF KARL A. PEHNKE, THE APPLICANT'S
ENGINEER AND TRAFFIC EXPERT BEFORE THE
PLANNING BOARD.

II.

"[W]hen reviewing the decision of a trial court that has reviewed

municipal action, we are bound by the same standards as was the trial court."

Fallone Props., LLC v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562

(App. Div. 2004). "[P]ublic bodies, because of their peculiar knowledge of local

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conditions, must be allowed wide latitude in their delegated discretion." Jock v.

Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005). "The proper scope of

judicial review is not to suggest a decision that may be better than the one made

by the board, but to determine whether the board could reasonably have reached

its decision on the record." Ibid. As a reviewing court, we are not to substitute

our judgment for that of the local board unless there is a clear abuse of

discretion. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 82

(2002) (citing Med. Realty Assocs. v. Bd. of Adjustment, 228 N.J. Super. 226,

233 (App. Div. 1988)).

Having carefully reviewed the record in light of these legal principles, we

affirm the January 27, 2020 order substantially for the reasons stated by Judge

McCarthy in his oral opinion. We agree with Judge McCarthy's conclusion that

the Board's decision was reasonable and supported by the record. The Board

applied its expertise and knowledge of local conditions when it interpreted the

zoning ordinance's restaurant category definitions. The Board's conclusion that

a Dunkin' Donuts is not a drive-in restaurant is consistent with the intent of the

ordinance and the history of its application in the municipality. The Board acted

well within its discretion when it rejected Reger's rigid interpretation of the

ordinance.

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 We also agree with Judge McCarthy's conclusion that the Board did not

abuse its discretion when it denied Reger's request to admit the expert's

evaluation. The expert was retained by FHR. Reger did not, and likely could

not, call him as a witness. See N.J.S.A. 40:55D-10(d) ("[t]he testimony of all

witnesses relating to an application for development shall be taken under oath

. . . and the right of cross examination shall be permitted to all interested parties

. . . .") In addition, the expert's opinion concerned traffic conditions at the

subject property, a topic not relevant to the ordinance's restaurant definitions.

Affirmed.

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