Casino Beach Pier, LLC v. Borough of Seaside Heights ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-1072-21
A-1282-21
CASINO BEACH PIER, LLC,
Plaintiff-Appellant,
v.
BOROUGH OF SEASIDE HEIGHTS,
BOROUGH COUNCIL OF THE
BOROUGH OF SEASIDE HEIGHTS,
and SAMUEL TILLES, INC.,
Defendants-Respondents.
_______________________________
500 BOARDWALK REALTY, LLC,
and COIN CASTLE AMUSEMENTS,
Plaintiffs-Appellants,
v.
BOROUGH OF SEASIDE HEIGHTS,
BOROUGH COUNCIL OF THE
BOROUGH OF SEASIDE HEIGHTS,
and SAMUEL TILLES, INC.,
Defendants-Respondents.
_______________________________
Argued May 10, 2023 – Decided November 19, 2024
Before Judges Accurso, Firko and Natali.
On appeal from the Superior Court of New Jersey,
Law Division, Ocean County, Docket Nos. L-2917-17
and L-2952-17.
Ronald S. Gasiorowski argued the cause for appellant
Casino Beach Pier, LLC (Gasiorowski & Holobinko,
attorneys; Ronald S. Gasiorowski, on the briefs).
Bernard M. Reilly argued the cause for appellants 500
Boardwalk Realty, LLC, and Coin Castle Amusements
(Bernard M. Reilly, LLC, attorneys; Bernard M.
Reilly, on the briefs).
Terry F. Brady argued the cause for respondents
Borough of Seaside Heights and Borough Council of
Borough of Seaside Heights (Brady & Kunz, PC,
attorneys; Terry F. Brady, on the briefs).
Robert C. Shea argued the cause for respondent
Samuel Tilles, Inc. (R.C. Shea & Associates, PC,
attorneys; Robert C. Shea, on the briefs).
The opinion of the court was delivered by
ACCURSO, P.J.A.D.
Plaintiffs Casino Beach Pier, LLC and 500 Boardwalk Realty, LLC and
Coin Castle Amusements appeal from a final judgment rejecting their
consolidated prerogative writs challenge to municipal ordinances adopted by
defendant Borough Council of the Borough of Seaside Heights designating two
A-1072-21
2
lots owned by defendant Samuel Tilles, Inc. — which plaintiffs would prefer
not to see developed — as within the Borough's Resort Recreational zone.
More specifically, plaintiffs appeal from two partial summary
judgments, the first entered on November 26, 2018, which rejected their claim
that the lots had been irrevocably dedicated to the Borough by implication as a
result of a 1910 filed map, that the filed map created private rights in others
who trace their title to that map that prohibits a re-zoning of Tilles' lots, and
that the new zoning, by eliminating the lots' decades-long use as a public
beach, violated the public trust doctrine; and the second, entered on June 25,
2019, which rejected their claim that the ordinances were invalid due to
defective notice. Plaintiffs also appeal the court's judgment after trial rejecting
their remaining claims that adoption of the ordinances was arbitrary and
capricious because they are inconsistent with the Borough Master Plan.
Because we agree Tilles was entitled to both partial summary judgments
and that Judge Marlene Lynch Ford's findings following the bench trial are
amply supported by competent evidence in the record, we affirm.
This dispute has a long history, a large part of which is not particularly
relevant to the issues plaintiffs reprise on this appeal. We thus sketch only so
much as required to put our decision in context. Plaintiffs and Tilles each own
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property along the Seaside Heights boardwalk. Tilles' property, which has no
street address, is designated as Block 99.01, Lots 1.03-1.06 on the Borough tax
map. The lots lay under (Lot 1.04) and east of the boardwalk (Lots 1.03, 1.05)
running into the Atlantic Ocean (Lot 1.06). Lot 1.05 is an approximately 100
x 155-foot beach lot along the northernmost edge of Block 99.01, roughly in
line with the south side of Grant Avenue. Lot 1.06 is directly east of Lot 1.05
and extends eastward from the mean high water line to the pierhead line in the
Atlantic Ocean. Immediately south of Lots 1.05 and 1.06 is the Borough's
public beach, which extends approximately seven blocks to DuPont Avenue
and the former Funtown Pier, the southside of which abutted Porter Avenue
and the Borough line with Seaside Park.
Although only Lots 1.05 and 1.06 are at issue in this case, Tilles' Lots
1.03-1.06 in Block 99.01 never had a zoning designation on the Borough tax
map and are not included in the lists of individual properties located in the
Public or Resort Recreational zones in the Borough zoning ordinances.1 In
1
The Borough included Lot 1.03 in the Resort Recreational zone by ordinance
in 2015, as amended in 2017. No one disputes that for many years prior to that
change, Tilles operated the Sand Castle, a large arcade building housing retail,
food stands and games of chance on Lot 1.03 on the east side of the boardwalk,
which was destroyed in Superstorm Sandy. Tilles also owns the parcel on the
west side of the boardwalk, Block 8.02, Lot 1, adjacent to Lot 1.04 and across
A-1072-21
4
2007, the Planning Board's engineer, Charles Halloway, provided a letter to the
Board in connection with an application by Tilles for minor site plan approval,
stating: "The Borough ordinances do not specifically list block 99.01, lots
1.03-1.06 in a zoning district. The lots are adjacent to the 'recreation/open
space' areas of the Borough. We submit that it was the Borough's intent to
include the property in question in the [Resort Recreational] Zone." The
engineer suggested the Borough ordinances be amended to correct the
oversight and include Lots 1.03-1.06 in the Resort Recreational zone.
Casino Beach owns the property at 819 Boardwalk, Block 99.02, Lot
1.02 on the Borough's tax map, immediately north of Tilles' property. The
Casino Beach property consists of boardwalk, beach and a pier into the
Atlantic Ocean with amusement rides, food concessions and games. Casino
Beach's property is in the Borough's Resort Recreational District A zone. 2
Following partial destruction of the pier in Superstorm Sandy, the Borough
deeded a block of the public beach north of the pier to Casino Beach, which
the boardwalk from Lot 1.03. That parcel is occupied by "Jimbo's Bar and
Grill" and is also in the Resort Recreational zone.
2
The Resort Recreational District A zone allows for the same uses allowed in
the Resort Recreational zone as well as adult entertainment establishments,
tattoo parlors and retail establishments selling firearms.
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extended its pier across the former public beach, scaling back its reach into the
ocean. During the pier's reconstruction, Casino Beach used Tilles' beach lot,
Lot 1.05, as a staging area for the construction work.
500 Boardwalk owns 519 Boardwalk, Block 602, Lot 1.01 on the
Borough tax map. Coin Castle owns 511 Boardwalk, Block 602, Lot 1.02.
The properties are located about 450 feet south of Tilles' land on the west side
of the boardwalk.
In 1909, Manhassett Realty Company acquired a 93-acre tract in what is
now Seaside Heights, running between Barnegat Bay and the Atlantic Ocean,
including the riparian rights out to the pierhead line. The following year,
Manhassett filed a map with the clerk's office subdividing the ninety-three
acres into twenty-foot lots, blocks, and streets, bordered by Bay View Avenue
in the west, Grant Avenue in the north, Ocean Avenue in the east, and Porter
Avenue in the south, which marks the border with Seaside Park. All of the
deeds out of Manhassett contain a common restriction, amounting to a
neighborhood scheme, forbidding such things as hog pens, slaughterhouses, or
other nuisances, as well as "any dangerous, noxious, unwholesome or
offensive establishment, trade, calling or business whatsoever, [or] any
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building for the sale or manufacture of beer or liquors." Tilles, 500 Boardwalk
and Coin Castle all trace their title to Manhassett and that map.
Specifically, Tilles traces its title to Block 99.01, Lots 1.03-1.06 to two
deeds from Manhassett to John F. Walsh, the first issued in 1913 for Lots 1
and 2, in Block H along the west side of Ocean Avenue, as depicted on the
filed 1910 Map and the second in 1917 for adjacent Lots 3-5. Both deeds
conveyed the title to the lots, as well as all the land east of those lots into the
ocean to the pierhead line, "[s]ubject, however, to the rights of the public in
and over Ocean Avenue now located and shown on [the 1910] map." The
Walsh deeds contain an additional restriction, not contained in any other
Manhassett deed referencing the filed map, providing that "no building or
structure of any kind whatsoever shall be erected on any part of the above
described premises lying eastwardly of the westerly side of Ocean Avenue."
500 Boardwalk's and Coin Castle's properties, Block 602, Lots 1.01 and
1.02 on the Borough's tax map, were lots 1 through 10 in Block F along the
west side of Ocean Avenue between Sumner and Webster Avenues on
Manhassett's 1910 map. Neither 500 Boardwalk nor Coin Castle have
included their deeds or chains of title in the record. Plaintiffs, however, do not
dispute that unlike the Walsh deeds to lots 1 through 5 in Block H and the
A-1072-21
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1915 deed from Manhassett to Bertha E. Vanderslice for lots 4 through 9 in
Block A, lying between Dupont Avenue and the municipal boundary with
Seaside Park along Porter Avenue, which also included all the land east of
those lots to the pierhead line, later developed as the Funtown Pier, 500
Boardwalk's and Coin predecessors in title were not deeded any property east
of the west side of Ocean Avenue on the 1910 map.
Plaintiffs instead maintain that the 1910 Map, and the restrictions in the
Walsh deeds prohibiting the erection of any building or structure east of the
west side of Ocean Avenue, "established the beach as a dedicated public
beach," of which 500 Boardwalk and Coin Castle, along with all other
successors in title to lots conveyed with reference to the 1910 map are
beneficiaries, creating "private rights in beach lots 1.05 and 1.06 that cannot be
usurped by defendants." They further contend the dedicated beach was
"accepted by the municipality," which "cannot release that dedication and
rezone that dedicated beach property for private commercial use." We agree
with Judge Ford that plaintiffs' arguments are entirely without merit, having no
support in either the facts or the law.
The fatal weakness in plaintiffs' argument is that it depends entirely on
Manhassett having dedicated the beach to Seaside Heights by virtue of the
A-1072-21
8
1910 filed map without any proof it did so, and a myriad of facts strongly
suggesting it did not. It has long been the law that "[d]edication is 'the
permanent devotion of private property to a use that concerns the public in its
municipal character.'" Twp. of Middletown v. Simon, 193 N.J. 228, 240
(2008) (quoting Roger A. Cunningham & Saul Tischler, Dedication of Land in
New Jersey, 15 Rutgers L. Rev. 377, 377 (1961)). "[I]n determining whether
the owner intended to dedicate land, 'it is not the actual, unrevealed intention
that controls, but rather the intention manifested by the acts or conduct of the
dedicator.'" Simon, 193 N.J. at 241 (quoting Haven Homes, Inc. v. Raritan
Twp., 19 N.J. 239, 246 (1955)).
Critically, neither the 1910 filed map nor any Manhassett deed
referencing the map refers to a dedicated beach. The 1910 map depicts blocks
and lots and named streets, including Ocean Avenue at its easternmost edge,
but does not identify any area as a "beach." Although plaintiffs necessarily
concede the point, they assert "[d]epiction of the area on the map as open
without lot numbers or platting can be sufficient to establish the area as
'dedicated' as an open public area," and in the late 1800s or early 1900s
"[m]unicipalities frequently did not 'accept' the dedications sometimes for
decades or by specific actions." They contend "[t]hat the dedication as the
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9
beach has been effectively 'accepted' by Seaside Heights and the public is
evidenced by [its] use for about a 100 years as a public beach area."
There is no question but that Manhassett dedicated the streets depicted
on the 1910 map to the Borough. See Pope v. Town of Union, 18 N.J. Eq. 282,
283 (Ch. 1867) (holding it "now well settled" that an owner of a tract of land
who "lays it out in lots and streets, by a map publicly exhibited or filed in the
proper public office, and sells lots laid out on said map by a reference thereto,
[has] thereby dedicate[d] the streets on said map to the public").
And we acknowledge the possibility that depiction of an open area on a
filed map without lot numbers or platting might, depending upon the proofs, be
sufficient to establish the area as dedicated to the public. See De Long v.
Spring Lake & Sea Girt Co., 65 N.J.L. 1, 4-5 (Sup. Ct. 1900) (although "no
indication on the face of the map" that lot no. 41, between Passaic Avenue and
Spring Lake, which body of water was within the borders of the tract, "was
dedicated to a public use," the jury properly found lot was dedicated based on
"represent[ations] to all who intended becoming purchasers" that "the lot
owners had the use of the lake, and that the portions environing the lake,
between the roads and the lake, were for public use"). But there is no like
evidence in this record nor any precedent to support a finding that Manhassett
A-1072-21
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intended to dedicate property to the Borough — by implication — lying
beyond the streets demarcating the 1910 filed map's borders.
Instead, the factual record discloses that Manhassett in 1913, three years
after filing its map, deeded Walsh the land lying east of lots 1 and 2 out to the
pierhead line, subject "to the rights of the public in and over Ocean Avenue
now located and shown on [the 1910] map." Two years later, Manhassett
similarly conveyed to Vanderslice lots 4 through 9 in Block A between Dupont
and Porter Avenues along with all the land east of those lots to the pierhead
line.
Moreover, Manhassett conveyed to the Borough all of the riparian rights
it had acquired from Burr from the mean high water line to the pier head line
between Grant and Dupont Avenues in 1916, and in 1919 deeded to the
Borough the land east of Ocean Avenue between Grant and Dupont Avenues to
the mean high water line. The Borough subsequently vacated the public's
interest in Ocean Avenue by ordinance in 1925.3 Would there any doubt that
3
The legal effect of these various deeds and the vacation of Ocean Avenue
was to vest in Walsh title to lots 1-5, and all the land east of those lots,
including the land within Ocean Avenue to the mean high water line.
Although Walsh also retained title to the land east of the mean high water line
to the exterior pierhead line for lots 1 and 2 by virtue of its 1913 deed,
Manhassett's 1917 conveyance of the riparian rights east of lots 3, 4, and 5,
A-1072-21
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Manhassett did not dedicate the land east of Ocean Avenue to the Borough "by
implication" by virtue of the 1910 filed map, which there is not, Manhassett's
subsequent conveyance of those same lands to Walsh, Vanderslice and the
Borough in the years immediately following the filing of the map would
unequivocally dispel it. 4
were not conveyed to Walsh as a result of the prior transfer of those rights
from Manhassett to the Borough in the 1916 deed. Manhassett's 1919 deed did
not impair Walsh's title to the beach east of lots 1-5 because Manhassett had
already transferred title to those lands to Walsh in its 1913 and 1917 deeds.
When Tilles acquired lots 1-5 by way of sheriff's deed in 1940 following a
foreclosure, the exception for the riparian rights east of lots 3, 4, and 5 did not
appear in the deed. Tilles and the Borough agree that since 1940 both Tilles
and the Borough have acted in the belief that Tilles rightfully owned all
property east of lots 1-5 to the pierhead line. Tilles has paid taxes on the
parcel since 1941 and has for many years at various times leased Lot 1.05 and
1.06 to the Borough in lieu of payment of taxes.
4
Although the record appears quite clear in this instance that there was no
implied dedication of the beach in the 1910 filed map, we are mindful that
"attempting to interpret and give effect to deeds [and maps] evidencing
conveyances made over a hundred years ago is often very difficult, involving
unfamiliar laws and customs of conveyancing," Phoenix Pinelands Corp. v.
Davidoff, 467 N.J. Super. 532, 619 (App. Div. 2021), and of the advice of the
former Court of Chancery that a court of equity should deny all relief to one
who has delayed "asserting his rights, until the proofs respecting the
transaction, out of which he claims his rights arose, are so indeterminate and
obscure, that it is impossible for the court to see, whether what seems to be
justice to him is not injustice to his adversary," McCartin v. Adm'r of
Traphagen, 43 N.J. Eq. 323, 338 (Ch. 1887), aff'd, 45 N.J. Eq. 265 (E. & A.
1889).
A-1072-21
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As to the restriction in the Walsh deeds, providing that "no building or
structure of any kind whatsoever shall be erected on any part of the above
described premises lying eastwardly of the westerly side of Ocean Avenue ,"
that restriction is limited to those two deeds and not a part of the neighborhood
scheme created by Manhassett in the deeds conveyed with reference to the
1910 map. The restriction is thus not enforceable by any other lot owner or
their successors in title such as 500 Broadway or Coin Castle.5 Moreover, the
surviving directors and trustees of Manhassett specifically released the Walsh
restriction by deed recorded in 1955. Although plaintiffs assert that a deed
made by the two surviving directors of a long defunct corporation "would be
of no legal effect or validity," they provide no support for that proposition and
the law has long been to the contrary. See Joachim v. Belfus, 107 N.J. Eq.
240, 245 (Ch. 1930) ("Upon dissolution of a corporation, its corporate
existence continues for the winding up of its affairs and conveying its real
estate. In activity a corporation is managed by a board of directors; in
dissolution by a board of trustees, the former directors.").
5
As Judge Ford noted, Casino Pier is not a beneficiary of the Manhassett
restrictions creating the neighborhood scheme or those in the Walsh deeds as it
does not trace its own title to the 1910 filed map.
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Judge Ford rejected plaintiffs' argument that the neighborhood scheme
restrictions prevented the Borough from designating Tilles' property within the
Resort Recreational zone as utterly without merit. See Tobin v. Paparone
Const. Co., 137 N.J. Super. 518, 527 (Law. Div. 1975) (noting a zoning
ordinance "is entirely divorced in concept, creation, enforcement and
administration from restrictions arising out of agreement between private
parties who may . . . impose whatever restrictions upon the use of their lands
that they desire, such covenants being enforceable only by those in whose
favor they run").
The judge also found that although the neighborhood scheme imposed
by Manhassett envisioned a residential community, "clearly the properties in
and around [Tilles'] property were intensively developed for commercial and
recreational uses." The judge found that enforcing "these archaic deed
restrictions, which were apparently abandoned in good faith by the
predecessors in title and never enforced by the Borough" against Tilles "would
clearly be inequitable." The law is plainly in accord. See Murphy v. Trapani,
255 N.J. Super. 65, 74 (App. Div. 1992) (acknowledging pervasive violations
of a neighborhood scheme resulting in a change in the character of the
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neighborhood indicate an abandonment of the original plan "which makes
enforcement of the plan inequitable because of changed conditions").6
We also agree with Judge Ford that the Borough's notice of the zoning
changes met statutory requirements. The judge rejected plaintiffs' argument
that the notices of the proposed amendments for Lot's 1.05 and 1.06 did not
include a "clear and concise statement prepared by the clerk of the governing
body setting forth the purpose of the ordinance," as required by N.J.S.A.
40:49-2. As Judge Ford found, the public notice quoted the language of the
ordinances verbatim. We quote the ordinance referring to Lot 1.05:
6
We do not consider plaintiffs' argument that the public trust doctrine "weighs
against the validity of the Borough ordinances and actions." Although
plaintiffs included a count for violation of the public trust doctrine in their
complaints, they did not create a record in the trial court in opposition to
defendants' motion for partial summary judgment dismissing that count. The
failure to establish a record regarding the effect the zone change of this 100-
foot stretch of beach has on the public's "reasonable access to the sea,"
Matthews v. Bay Head Imp. Ass'n, 95 N.J. 306, 324 (1984), prevents our
review of the issue. See State v. Robinson, 200 N.J. 1, 19 (2009) (noting
"[a]ppellate review is not limitless"; its "metes and bounds" are defined by
"the points of divergence developed in proceedings before a trial court "). Cf.
WDSL & Assocs., 452 N.J. Super. at 413 n.4 (cautioning courts in tax sale
matters not to be "swayed or distracted" by a litigant's "attempt to seize the
moral high ground" by professing concern "about the municipality's collection
of taxes or the property owner's right to freely convey title" because "in
reality, the contestants' interests in those matters are secondary at best to what
they are truly after").
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ORDINANCE 2017-17
AN ORDINANCE OF THE BOROUGH OF
SEASIDE HEIGHTS, COUNTY OF OCEAN, STATE
OF NEW JERSEY, AMENDING THE BOROUGH
CODE OF THE BOROUGH OF SEASIDE HEIGHTS,
SO AS TO AMEND CHAPTER 246, ENTITLED
"ZONING AND LAND USE," TO ADD BLOCK
99.01 LOT 1.05 TO THE RESORT RECREATIONAL
ZONE.
WHEREAS, the Mayor and Borough Council
wish to more properly zone Block 99.01, Lot 1.05 as
part of the Resort Recreational Zone, which
designation is consistent with the Borough Master
Plan, the recommendations of the Planning Board
Engineer and the existing zoning in the surrounding
area.
NOW, THEREFORE, BE IT ORDAINED by
the Mayor and Borough Council of the Borough of
Seaside Heights, County of Ocean, and State of New
Jersey, as follows:
SECTION 1, Chapter 246 of the Borough Code
of the Borough of Seaside Heights, entitled "Zoning
and Land Use," is hereby amended and supplemented
at §246-40, entitled "Resort Recreational Zone," so as
to amend subsection B thereof to add a paragraph (11)
which shall read as follows:
(11) Lot No. 1.05 in Block 99.01.
SECTION 2. This zoning regulation
amendment will be referred to the Seaside Heights
Planning Board for approval, as required by N.J.S.A.
40:55D-23.
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SECTION 3. Notice of the public hearing on
second reading of this amendment to the zoning
ordinance shall be given at least 10 days prior to the
hearing by the municipal clerk in accordance with the
procedures of N.J.S.A. 40:55D-62.1.
SECTION 4. This ordinance shall be filed in
the office of Ocean County Planning Board.
SECTION 5. All ordinances, parts of
ordinances inconsistent herewith are hereby repealed.
SECTION 6. If any section, subsection,
sentence, clause, phrase or portion of this ordinance is
for any reason held to be invalid or unconstitutional
by a court of competent jurisdiction, such portion shall
be deemed a separate, distinct and independent
provision, and such holding shall not affect the
validity of the remaining portions hereof.
SECTION 7. This ordinance shall take effect
after second reading and publication as required by
law.
NOTICE IS HEREBY GIVEN that the foregoing
ordinance was introduced and passed by the Borough
Council on the first reading at a meeting of the
Borough Council of the Borough of Seaside Heights
held on the 5th day of July, 2017, and will be
considered for second reading and final passage at a
regular meeting of the Borough Council to be held on
the 2nd day of August, 2017, at 5:00 p.m., in the
Municipal Court Room located at the George E.
Tompkins Municipal Complex, 116 Sherman Avenue,
Seaside Heights, New Jersey, at which time and place
any persons desiring to be heard upon the same will be
given the opportunity to be so heard.
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The ordinance for Lot 1.06 is identical, but for the Lot identifier.
Judge Ford rejected plaintiffs' claim that the notices were "misleading
and inaccurate," and ran afoul of the requirements we set forth in Wolf v.
Shrewsbury, 182 N.J. Super 289, 295 (App. Div. 1981) and Rockaway
Shoprite Associates, Inc., v. City of Linden, 424 N.J. Super. 337, 345 (App.
Div. 2011) that proper notice entails "a brief summary of the main objectives
or provisions of the ordinance," Shrewsbury, 182 N.J. Super at 295, and that
such summary needs to "apprise interested readers throughout the municipality
of the zoning changes contemplated as well as their nature and import,"
Rockaway, 424 N.J. Super. at 345.
The Borough's notice explicitly set forth the purpose of the ordinances to
rezone Lots 1.05 and 1.06 in Block 99.01 to the "Resort Recreational Zone."
Although the Borough might have provided readers more detail, such as an
explanation that the then existing ordinances did not list Block 99.01, Lots
1.05 and 1.06 in any zoning district, neither the statute nor the case law
requires such extra detail and plaintiffs do not explain why an "interested
reader" would have "no knowledge" that the ordinances in question were
changing the zoning. The notice was certainly sufficient to "set forth the
purpose of the ordinance" as required by N.J.S.A. 40:49-2.
A-1072-21
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The judge likewise rejected plaintiffs' claim that the notices violated
N.J.S.A. 40:55D-11 and N.J.S.A. 40:55D-62.1. We agree plaintiffs' arguments
on these points fell short.
N.J.S.A. 40:55D-11 governs the content of notices for development
applications or amendment of the master plan, not amendment of a zoning
ordinance. Thus, it does not apply. N.J.S.A. 40:55D-62.1, requiring notice to
affected property owners of zone classifications or boundary changes, which is
applicable, states nearby owners must be provided: "the date, time and place
of the hearing, the nature of the matter to be considered and an identification
of the affected zoning districts and proposed boundary changes, if any, by
street names, common names or other identifiable landmarks, and by reference
to lot and block numbers." We held in Mahwah Realty Associates, Inc. v.
Township of Mahwah, 430 N.J. Super 247, 257-58 (App. Div. 2013), that "the
additional identification requirements," that is street names, common names,
other identifiable landmarks, and lot and block numbers, "apply only to
boundary changes, not classification changes."
The parties dispute whether the addition of Tilles' property to the Resort
Recreational zone was a boundary change requiring the notice to identify
Tilles' property by street name or by some identifiable landmark and lot and
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block number or a classification change, requiring only identification of the
affected zoning district. Plaintiffs have insisted the property was located in the
Public Use zone, and thus the amendment extended the boundary of the
Recreational Resort zone. Defendants have countered that a review of the
zoning maps and ordinances make clear the lots have never been designated in
any zoning district, making it a classification change.
Accepting plaintiffs' position that Lots 1.05 and 1.06 were located in the
Public Use zone, which the judge noted in that area consisted of "only the
oceanfront beaches located to the east of the boardwalk," Judge Ford found
that even if considered a boundary change, the mailed notice to nearby
property owners "clearly reflected" the inclusion of Lots 1.05 and 1.06 in the
Resort Recreational zone by "the most specific available identification of the
property" as Tilles' 100-foot of beach and riparian rights was without a street
address. Because the notice provided sufficient information to alert the
property owners within 200 feet of Tilles' property that the proposed
amendment would change the zoning of this 100-foot strip of the beach to
Resort Recreational and was not "misleading or confusing from an
objectionably reasonable standpoint," the judge found the notice identifying
the property by lot and block satisfied N.J.S.A. 40:55D-62.1.
A-1072-21
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Although our review is de novo, Myers v. Ocean City Zoning Bd. of
Adjustment, 439 N.J. Super. 96, 100 (App. Div. 2015), we find no cause to
disagree with Judge Ford's interpretation of N.J.S.A. 40:55D-62.1, which we
find "consonant" with "reason and good direction," Mahwah Realty, 430 N.J.
Super. at 259 (quoting Schierstead v. City of Brigantine, 29 N.J. 220, 230
(1959)) applied to these facts. Specifically, we note the statute permits notice
of a boundary change to all properties within 200 feet of the proposed new
boundaries identified by "common names or other identifiable landmarks," and
by lot and block number.
What seems clear is the Legislature's determination that identifying a
proposed boundary by a common name or some identifiable landmark to
persons owning property within 200 feet of the line would provide "a
sufficiently clear and definite specification of property and boundaries to
enable [those] owners to understand the proposed zoning action and participate
in the public hearing thereon," or impel them to look up the lot and block on
the tax map in the municipal offices so as to do so. 1 Rathkopf's The Law of
Zoning and Planning § 12:25 (4th ed.). We agree with Judge Ford that the
mailed notices, which identified the property by lot and block number, the
most specific identification available, located, as plaintiffs' argue, in the Public
A-1072-21
21
Use zone, consisting in that area of "only the oceanfront beaches east of the
boardwalk," would be added to the Resort Recreational zone, provided all the
notice required under N.J.S.A. 40:55D-62.1 in these circumstances. See Pond
Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment , 397 N.J.
Super. 335, 348-49 (App. Div. 2008) (finding misidentification of tax map
designation of property without street address in public notices and certified
letters sent to nearby owners in connection with a proposed variance "did not
vitiate the legal sufficiency of the notice").
We also reject plaintiffs' argument that a typographical error as to a date
in the September 10, 2017 published post-adoption notices invalidated the
ordinance. N.J.S.A. 40:49-2(d) requires a municipality to publish "[u]pon
passage, every ordinance, or the title, or the title and a summary, together with
a notice of the date of passage or approval, or both" in a newspaper circulating
in the municipality. "No other notice or procedure with respect to the
introduction or passage of any ordinance shall be required." Ibid.Four days after adoption, the Borough published the ordinances, with
title and summary, in the Asbury Park Press. The post-adoption notices,
however, mistakenly advised that the ordinances, which had by the date of
publication already been adopted, "will be considered for second reading and
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final passage at a regular meeting of the Borough Council to be held on the 6th
of September 2017, at 5:00 p.m."
Although the notices were simply duplicates of the pre-hearing notices,
they served their purpose of "inform[ing] the public of the governing body's
action." Monterey Estates, Inc., v. Planning Bd. of Twp. of Manalapan, 231
N.J. Super. 78, 79 (App. Div. 1989). The notices published post-adoption each
announced that "[t]his ordinance shall take effect after second reading and
publication." And, as required by N.J.S.A. 40:49-2(d), the published notices
included the entirety of the language of both ordinances. As the second
reading date had passed by the time of publication, we are satisfied it would
have been quite clear to anyone reading the notices that the ordinances had
already been adopted. See Pond Run, 397 N.J. Super. at 349 (considering "[a]
reasonable person['s]" likely response to an error in a notice in weighing its
validity).
Finally, plaintiffs' claims that the ordinances placing Lots 1.05 and 1.06
in the Recreational Resort zone are inconsistent with the Borough's master
plan, and that the planning board's "purported 'consistency review'" was
"cursory," relying solely on its engineer's opinion, which was improperly
based on the master plan reexamination reports without any consideration of
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the master plan are without sufficient merit to warrant any extended discussion
here. See R. 2:11-3(e)(1)(E).
There is no question but that the Borough referred the proposed
ordinances placing Lots 1.05 and 1.06 in the Resort Recreational zone to the
planning board for consistency review with the master plan in accordance with
N.J.S.A. 40:55D-64; that the planning board undertook that review after
having received the report of its engineer and determined by unanimous vote
that the proposed ordinances were consistent with the master plan; and timely
referred its findings to the Borough Council in accordance with N.J.S.A.
40:55D-26(a).
Judge Ford found the evidence in the record established without doubt
that Lots 1.05 and 1.06, "through oversight or neglect," either never had a
zoning designation or that its designation was, at best, ambiguous. The judge
found that the Borough Council in adopting these ordinances did not so much
effect a change in the property's zoning as correct a longstanding error on the
official zoning map. She noted "[t]he master plan includes an
acknowledgment that this community's 'prime function is recreation' and
therefore, the designation of the Tilles property as within the [Resort
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Recreational] zone is substantially consistent" with recreational use "and
further provides for an expansion of that use."
The judge found there was "ample evidence in the record to conclude . . .
the Tilles lots were intended to be treated like other surrounding recreational
properties," including the adjacent property owned by Casino Pier and the
nearby properties owned by 500 Boardwalk and Coin Castle, and that the
Tilles lots were "never designated for public use in the [Public] zone." The
judge emphasized that the only other privately owned beach properties in the
Borough, such as Casino Beach and the former Funtown Pier are in the Resort
Recreational District A and the Resort Recreational zones respectively, and
indeed that the entire boardwalk was included in one of those two zones.
Having reviewed the extensive record, the judge found no impropriety in
the procedure for conformance review and adoption of the ordinances or that
their adoption by the Borough Council constituted arbitrary, capricious, or
unreasonable action. Having conducted our own de novo review, we agree and
affirm Judge Ford's conclusions largely for the reasons expressed in her
comprehensive and well-reasoned opinion following the prerogative writs trial.
See Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965) ("So long
as the power exists to do the act complained of and there is substantial
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evidence to support it, the judicial branch of the government cannot
interfere.").
Plaintiffs' remaining arguments, to the extent we have not addressed
them, lack sufficient merit to warrant discussion in a written opinion. See R.
2:11-3(e)(1)(E).
Affirmed.
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