RATAN HOTEL PLAZA, LLC VS. ZONING BOARD OF THE CITY OF EAST ORANGE(L-3579-15, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2064-15T1
RATAN HOTEL PLAZA, LLC,
Plaintiff-Appellant,
v.
ZONING BOARD OF THE CITY OF
EAST ORANGE and EAST ORANGE
HOSPITALITY, LLC,
Defendants-Respondents.
_______________________________
Argued September 11, 2017 – Decided October 11, 2017
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No.
L-3579-15.
R.S. Gasiorowski argued the cause for
appellant (Gasiorowski & Holobinko,
attorneys; Mr. Gasiorowski, on the brief).
Victor J. Herlinsky, Jr., argued the cause
for respondent East Orange Hospitality, LLC
(Sills Cummis & Gross, PC, attorneys; Mr.
Herlinsky and Adam J. Faiella, of counsel
and on the brief).
Michael S. Rubin argued the cause for
respondent Zoning Board of Adjustment of the
City of East Orange (Law Offices of Michael
S. Rubin, attorneys, join in the brief of
respondent East Orange Hospitality, LLC).
PER CURIAM
Defendant East Orange Hospitality, LLC, sought to redevelop
a long-vacant hotel in the Evergreen Square Redevelopment
District in East Orange by reducing the number of rooms and
turning its restaurant and nightclub into a separate adult day
care center with medical facilities. Hospitality needed two use
variances, one for the adult day care center and the other to
combine two principal uses on one site, with one being a hotel.
It also needed bulk variances for the number and width of
parking spaces, non-attendant stacked parking, ninety degree
parking, non-conforming parking lot landscaping, front yard
parking, rear yard setback relief and a monument sign exceeding
permitted height and width. Except for the number of parking
spaces and the sign, the bulk variances were all for conditions
existing when the former hotel was operating.
At the direction of the East Orange zoning officer,
Hospitality applied to the City's zoning board for major site
plan approval and variance relief. Plaintiff Ratan Hotel Plaza,
LLC, owner of a nearby Ramada Inn, objected to the application,
which the zoning board unanimously approved after several public
hearings involving the testimony of many professionals on both
sides.
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Ratan filed a prerogative writs action challenging the
approval. It claimed the zoning board lacked jurisdiction to
grant site plan approval under the Redevelopment Plan, and the
grant of the required variances was arbitrary and capricious.
Judge Rothschild rejected Ratan's jurisdictional argument in a
written opinion. The judge noted there was no dispute that the
Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, vests
exclusive authority in the zoning board to grant site plan
approval when an application requires a use variance. See
N.J.S.A. 40:55D-76b; Najduch v. Twp. of Indep. Planning Bd., 411
N.J. Super. 268, 277 (App. Div. 2009). The parties also agreed
that the Redevelopment Plan vests authority to grant use
variances in the zoning board and bulk variances in the planning
board, and further provides that "site plan review shall be
conducted by the Planning Board in accordance with N.J.S.A.
40:55D-1 et seq."
Judge Rothschild acknowledged "the unfortunate
circumstances" that "the Redevelopment Plan's language does not
run smoothly parallel to the authoritative language within the
MLUL." He found it highly unlikely, however, that the
Legislature in the Local Redevelopment and Housing Law, N.J.S.A.
40A:12A-1 to -49, under which the Redevelopment Plan was
adopted, would have silently stripped zoning boards of their
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long-held, exclusive power to grant site plan approval in cases
in which the applicant was seeking a use variance. Judge
Rothschild concluded if the Legislature intended such a
significant change, "it is far more likely that it would have
added language that explicitly" expressed its intention, "yet
[the Local Redevelopment Law] is silent on the matter."
Reading the Local Redevelopment Law in pari materia with
the MLUL, Judge Rothschild found the Local Redevelopment Law did
not strip zoning boards of their exclusive power under the MLUL
to hear site plan applications and grant bulk variances to
applicants seeking a use variance. Our cases and the
commentators are in accord. See Weeden v. City Council of the
City of Trenton, 391 N.J. Super. 214, 228 (App. Div.), certif.
denied, 192 N.J. 73 (2007); William M. Cox and Stuart R. Koenig,
New Jersey Zoning and Land Use Administration, § 11-10.2 at 250-
51 (2017). The judge thus concluded the Redevelopment Plan's
provision that "site plan review shall be conducted by the
Planning Board in accordance with N.J.S.A. 40:55D-1 et seq."
permitted the zoning board to hear Hospitality's application in
accordance with N.J.S.A. 40:55D-76b, as it would under the MLUL.
Turning to Ratan's substantive arguments, Judge Rothschild
found Ratan failed to establish the zoning board's decision to
grant the variances was arbitrary or capricious. As to the
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positive criteria, the judge concluded an operating hotel was
clearly preferable to a neglected building vacant since 2007 and
that an adult day care center "would also serve to enrich the
surrounding community" more so than the restaurant and nightclub
formerly on the site. He found Hospitality easily demonstrated
the need for adult day care in East Orange, and that the
property was uniquely suited for its proposed new use.
Regarding the negative criteria, Judge Rothschild found "no
basis to conclude the grant of the variances will cause a
substantial detriment to the public good" or impair the intent
and purpose of the zoning plan and ordinance. To the contrary,
he found that "the implementation of the hotel and adult day
care on the property seems to directly advance the goals of the
Redevelopment Plan by generating business in the area and
providing lodging and hospitality services."
Ratan appeals, reprising the arguments it made in the Law
Division that the zoning board was without jurisdiction to grant
the approvals, and that the grant of both the use variances and
the bulk variances was arbitrary and capricious. We conclude
Ratan's appeal of the use variances has become moot by
intervening events and that its challenge to the zoning board's
ability to grant the site plan approval and its approval of the
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bulk variances is without merit for the reasons expressed by
Judge Rothschild.
Two weeks after Judge Rothschild entered judgment
dismissing Ratan's prerogative writs complaint, East Orange
amended the Redevelopment Plan to permit adult day care
facilities and multiple principal uses on a site when one is a
hotel. Because Hospitality no longer requires a use variance
for its proposed redevelopment, the propriety of the Board's
grant of those variances has become wholly academic, and thus
moot. See Jai Sai Ram, LLC v. Planning/Zoning Bd. of the
Borough of S. Toms River & Wawa, Inc., 446 N.J. Super. 338, 345
(App. Div.), certif. denied, 228 N.J. 69 (2016).
We reject Ratan's challenge to the zoning board's
jurisdiction to hear Hospitality's application for site plan
approval for the reasons expressed by Judge Rothschild. As we
explained in Weeden, "an application for an exception to a
redevelopment plan requirement, of a type that would ordinarily
constitute a use variance, should be heard by a zoning board."
Weeden, supra, 391 N.J. Super. at 226.
We agree with Judge Rothschild that the Redevelopment Law
and the MLUL should be read together in a manner that harmonizes
both. Id. at 228-29. Doing so leads ineluctably to the
conclusion that the zoning board properly exercised its
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jurisdiction to entertain Hospitality's application for site
plan approval and bulk variances ancillary to its review of the
requested use variance. See Najduch, supra, 411 N.J. Super. at
277. To the extent the bulk variances were not subsumed in the
grant of the use variances, see Price v. Himeji, LLC, 214 N.J.
263, 300 (2013), Judge Rothschild's conclusion that any harm
from granting them was substantially outweighed by the benefits
is amply supported in the record. See Jacoby v. Zoning Bd. of
Adjustment of Borough of Englewood Cliffs, 442 N.J. Super. 450,
471 (App. Div. 2015).
Ratan's challenge to the zoning board's grant of the use
variances to Hospitality is moot. We reject the remainder of
its arguments for the reasons expressed by Judge Rothschild in
his carefully reasoned opinions of July 24 and December 14,
2015.
Affirmed.
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