JOHN P. SHORT, JR. VS. BOROUGH COUNCIL OF BOROUGHÂ OF AVALON(L-0123-13 AND L-35-14, CAPE MAY 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NOT FOR PUBLICATION WITHOUT THE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-3620-15T1
JOHN P. SHORT, JR.,
PATRICIA A. SHORT,
DONALD P. SALESKI, MARY
ANN SALESKI, JOHN M. LAVIN,
COURTNEY B. CARVER, JAMES
J. GARRITY and ROSEMARY
A. GARRITY,
Plaintiffs-Appellants,
v.
BOROUGH COUNCIL OF BOROUGH
OF AVALON and BOROUGH OF AVALON
PLANNING/ZONING BOARD,
Defendant-Respondent,
and
JOHN ADAMS,
Defendant/Intervenor-
Respondent.
______________________________________________
Argued March 21, 2017 – Decided June 27, 2017
Before Judges Messano and Guadagno.
On appeal from the Superior Court of New
Jersey, Law Division, Cape May County, Docket
Nos. L-0123-13 and L-35-14.
Robert A. Fineberg argued the cause for
appellants.
Dean R. Marcolongo argued the cause for
respondent(Nathan Van Embden, attorney; Mr.
Marcolongo, on the brief).
Salvatore Perillo argued the cause for
intervenor-respondent (Nehmad Perillo &
Davis, P.C., attorneys; Mr. Perillo, on the
brief).
PER CURIAM
Defendant-intervenor John Adams acquired Lot 1.15, Block 83,
in the Borough of Avalon (Avalon) in 1985. Lot 1.15 fully conforms
to Avalon's zoning regulations and fronts on Fourth Avenue, a
public street. In 1989, Adams acquired a vacant lot, Lot 11,
Block 83 (Lot 11), which does not front on any dedicated public
street, is non-conforming in size and runs behind and perpendicular
to Lot 1.15. In 2002, Adams conveyed Lot 1.15 to plaintiffs John
P. Short, Jr., and Patricia A. Short, retaining ownership of Lot
11.
In June 2013, Adams applied for, and in July 2013 obtained
from the zoning officer, a permit to construct a single-family
house on Lot 11. The zoning officer concluded variances were
unnecessary. Plaintiffs, along with Donald P. Saleski, Mary Ann
Saleski, John M. Lavin, Courtney B. Carver, James J. Garrity and
Rosemary A. Garrity, owners of properties in Block 83 that are
either contiguous to, or in close proximity to, Lot 11
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(collectively, plaintiffs), appealed the decision to defendant
Borough of Avalon Planning/Zoning Board of Adjustment (the Board)
pursuant to N.J.S.A. 40:55D-70(a).
The Board held a hearing, heard the testimony of the zoning
officer, Jeffrey Hesley,1 and considered the arguments of counsel.
The Board defeated a resolution stating Hesley erroneously issued
the permit by a vote of five to four.
Plaintiffs filed a complaint in lieu of prerogative writs
against the Board, and the court permitted Short to intervene.
Judge Julio L. Mendez heard arguments and reserved decision. On
March 17, 2016, the judge filed an order denying plaintiffs'
challenge and affirming the Board's decision, accompanied by a
written statement of reasons, which we discuss in detail below.
This appeal followed.
We apply "[t]he same standard of review" to the Board's
decision as does the trial court. N.Y. SMSA, L.P. v. Bd. of
Adjustment, 370 N.J. Super. 319, 331 (App. Div. 2004). A reviewing
court can "set aside" a municipal board's decision "when it is
'arbitrary, capricious or unreasonable.'" Cell S. of N.J., Inc.,
v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002) (quoting Medici
v. BPR Co., 107 N.J. 1, 15 (1987)).
1
Hesley was also Avalon's Tax Assessor.
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"[Z]oning boards, 'because of their peculiar knowledge of
local conditions[,] must be allowed wide latitude in the exercise
of delegated discretion.'" Price v. Himeji, L.L.C., 214 N.J. 263,
284 (2013) (alteration in original) (quoting Kramer v. Bd. of
Adjustment, 45 N.J. 268, 296 (1965)). A zoning board's decision
"enjoy[s] a presumption of validity, and a court may not substitute
its judgment for that of the board unless there has been a clear
abuse of discretion." Ibid. (citing Cell S. of N.J., supra, 172
N.J. at 81).
While we accord substantial deference to the factual findings
of the Board, its conclusions of law are subject to de novo review.
Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). "[A]lthough we
construe the governing ordinance de novo, we recognize the board's
knowledge of local circumstances and accord deference to its
interpretation." Grubbs v. Slothower, 389 N.J. Super. 377, 383
(App. Div. 2007).
The issues before us, as they were before Judge Mendez,
involve interpretation of several provisions of Avalon's zoning
regulations, as well as a deed of easement from Avalon to Adams,
executed and recorded in 2013 (the 2013 easement). The easement
refers to a 1992 judgment, whereby the court granted "a right-of-
way easement" to the owners of Lot 12, which is contiguous to Lot
11 and one lot further behind Lot 1.15. The judgment-easement was
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twenty feet wide and 190 feet in length, and extended from Lot 12
along Lot 11 to Fourth Avenue.
The 2013 easement in Adams' favor was "co-extensive" with the
court-ordered easement and explicitly anticipated Adams'
construction of a "residence" on Lot 11. It imposed numerous
conditions on the grant and use of the easement area, and required
Adams to make various improvements, including paving the area.
Plaintiffs focus on one particular contingency in the deed of
easement:
This Deed of Easement is contingent upon
[Adams] obtaining all approvals from the State
of New Jersey Department of Environmental
Protection [DEP] as may be required by the
Coastal Area Facilities Review Act ("CAFRA")
and such other permits and approvals as
required by Borough Ordinances within a
reasonable period of time.
[(Emphasis added).]
The parties executed the 2013 easement on August 12, 2013, several
weeks after Avalon received and approved Adams' permit
application.
Avalon's zoning regulations included a provision that
authorized the issuance of construction permits for single-family
homes on undersized lots if "[t]he applicant own[ed] no contiguous
property"; the "lot [had] a minimum of forty . . . feet frontage";
and the "lot [was] in existence and appear[ed] on the Official Tax
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Map of . . . Avalon prior to December 15, 1959." Borough of
Avalon, Ordinance § 27-7.3 (the grandfather ordinance).
Plaintiffs contend that by its terms, the 2013 easement did
not become effective until Adams obtained all necessary "permits
and approvals," including a variance. In other words, they argue
Adams could not obviate the need for a variance by relying on the
2013 easement, which was itself conditional.
Judge Mendez noted in his written opinion that plaintiffs
challenged Avalon's grant of the 2013 easement in a companion
lawsuit. The judge rejected that challenge and entered a separate
order and opinion on June 29, 2014, granting Avalon summary
judgment. That opinion clearly reflects that Avalon had adopted
an ordinance granting Adams an easement in January 2013, some six
months before he applied for the permit. In addition, the Board
was provided with proof that DEP had issued a CAFRA permit, one
of the conditions in the 2013 easement, in April 2013.
In his testimony before the Board, Hesley acknowledged that
he had considered a request Adams made to construct a residence
on Lot 11 years earlier and was prepared to deny the permit unless
Adams obtained a variance. However, Hesley explained the reason
for his change of position was the 2013 easement, whereby Avalon
expressly granted Adams access to Lot 11 from Fourth Avenue.
Hesley confirmed that the deed of easement was not executed until
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August, but the governing body had approved the easement, with
certain conditions, months earlier.
We conclude that a fair reading of the record demonstrates
Avalon had passed an ordinance granting Adams access to Lot 11
months before he applied for the permit, and that Adams had
otherwise complied with the conditions of the 2013 easement that
required he obtain governmental approvals. Plaintiffs' challenge
to the substance of the Board's decision, i.e., that Lot 11
satisfied the conditions for non-conforming lots in Avalon's
grandfather ordinance, requires further discussion.
Judge Mendez summarized the extent of Lot 11's non-
conformity, specifically: it was 5600 square feet, short of the
6000-square-foot minimum requirement of the zoning regulations;
and it had forty feet of frontage on the easement, the minimum
required for an approved "grandfathered" lot, but less than the
minimum sixty feet required by Avalon's regulations. We agree
with plaintiffs that Adams bore the burden of demonstrating Lot
11 was a pre-existing, non-conforming lot in order to reap the
benefits of the grandfather ordinance. See, e.g., S & S Auto
Sales, Inc. v. Zoning Bd. of Adjustment, 373 N.J. Super. 603, 613
(App. Div. 2004) ("It is the burden of the property owner to
establish the existence of a nonconforming use as of the
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commencement of the changed zoning regulation and its continuation
afterward.").
Plaintiffs argue that Adams was not entitled to relief under
the grandfather provisions because he created his own "hardship."
Although Adams did not presently own a lot that was contiguous to
Lot 11, plaintiffs contend he previously owned lot 1.15, a fully
conforming lot, which was contiguous.
Judge Mendez correctly rejected this contention based upon
Jock v. Zoning Board of Adjustment, 184 N.J. 562 (2005). There,
the Court explained, "merger takes place as a matter of law where
adjacent substandard lots come into common legal title." Id. at
581 (emphasis added). Here, although both lots were in common
legal title, Lot 1.15 was never substandard. As a result, the
lots never merged.
Adams could not avail himself of the grandfather provisions
of the ordinance if he created the hardship himself, i.e., caused
Lot 11 to become non-conforming. However, "a self-created hardship
requires an affirmative action by the landowner or a predecessor
in title that brings an otherwise conforming property into non-
conformity." Id. at 591. Adams took no affirmative action to
create a non-conforming lot; Lot 11 was always non-conforming.
Plaintiffs argue that Lot 11 did not have forty feet of
frontage required by the grandfather ordinance. Judge Mendez
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rejected plaintiffs' contention, noting the Municipal Land Use Law
(MLUL), N.J.S.A. 40:55D-1 to -163, broadly defined "street," see
N.J.S.A. 40:55D-7, and Avalon's zoning regulations defined "lot
frontage" as "[t]he horizontal distance across the lot measured
along the front lot line." Ordinance, supra, § 27-3(c). In turn,
the regulations defined the front lot line as "[t]he street line
on which the lot fronts or abuts." Ibid. Judge Mendez rejected
plaintiffs' various arguments regarding this portion of the
grandfather ordinance, as do we. They lack sufficient merit to
warrant discussion. R. 2:11-3(e)(1)(E).
Lastly, plaintiffs argue the historical record clearly
demonstrates Lot 11 never existed and appeared as a forty by one-
hundred-and-forty foot lot on Avalon's tax maps prior to 1959. It
was error, therefore, to conclude Adams was entitled to the
protections of the grandfather ordinance.
However, Judge Mendez relied upon the uncontested testimony
of Hensley, who was intimately familiar with the historical record.
Hensley testified that Lot 11 was comprised of three separately
referenced tax lots, which numbers were changed when Avalon
renumbered its tax map. Nevertheless, ever since 1930, the deeds
in the chain of title that led to Adams all conveyed the property
using the same metes and bounds description. Hensley testified
that Avalon historically taxed Lot 11 as one lot.
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The grandfather ordinance is entitled to a common-sense
interpretation of its plain language in order to effectuate the
intent of Avalon's governing body. DePetro v. Twp. of Wayne
Planning Bd., 367 N.J. Super. 161, 174 (App. Div.), certif. denied,
181 N.J. 544 (2004). We agree that given the historical
recognition of Lot 11 as a single lot since 1930, the Board
appropriately concluded it was a lot that existed prior to 1959
and otherwise met the requirements of the grandfather ordinance.
Affirmed.
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