STATE OF NEW JERSEY VS. JIHAD EWINGÂ (14-09-2760, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3161-15T1
IRVING FREEDBERG, JAMES
SPATZ, OLGA STARISKY and
TERRY VAVRA,
Plaintiffs-Appellants,
v.
ZONING BOARD OF ADJUSTMENT OF
THE BOROUGH OF RAMSEY, RICHARD
MAMMONE, ZONING OFFICER OF THE
BOROUGH OF RAMSEY, and V BOYS
RAMSEY HOLDING, LLC, a Limited Liability
Company of the State of New Jersey,
Defendants-Respondents.
————————————————————————————————————————————
Submitted March 16, 2017 – Decided March 31, 2017
Before Judges Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
4207-15.
Robert J. Inglima, Jr., attorney for
appellants.
Matthew S. Rogers, attorney for respondent
Zoning Board of Adjustment of the Borough of
Ramsey.
Eastwood, Scandariato & Steinberg, attorneys
for respondent Richard Mammone, Zoning Officer
of the Borough of Ramsey (Peter A.
Scandariato, on the brief).
Beattie Padovano, LLC, attorneys for
respondent V Boys Ramsey Holding, LLC (Antimo
A. Del Vecchio, of counsel; Daniel L.
Steinhagen, on the brief).
PER CURIAM
This case concerns challenges to a proposed Wawa gas station
and convenience store on State Highway 17 in the Borough of Ramsey.
Plaintiffs, Ramsey residents whose properties abut the property
at issue, appeal from the February 17, 2016 final judgment
dismissing with prejudice their complaint in lieu of prerogative
writs against defendants, Zoning Board of Adjustment of the Borough
of Ramsey (the Zoning Board), Zoning Officer Richard Mammone (the
Zoning Officer), and V Boys Ramsey Holding, LLC (V Boys).
Plaintiff's complaint challenged the Board's resolution denying
their appeal of the Zoning Officer's decision that V Boys'
development application does not require any variances.
Plaintiffs seek reversal of the judgment, asserting various claims
of trial court error. We have considered plaintiffs' arguments
in light of the record and our review of the applicable legal
principles. We affirm.
I.
We derive the following relevant facts from the record before
the Zoning Board. On February 6, 2013, V Boys filed an application
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for variance and conditional use approval with the Ramsey Planning
Board to develop a lot in Ramsey's B-3 commercial district on
Route 17. V Boys requested nine variances. V Boys also filed an
application for site plan proposal. The application for site plan
stated V Boys intends to use the lot for "[r]etail convenience and
gas sales." V Boys planned to have WaWa, Inc., operate the
convenience store and service station. The lot contains 77,280
square feet, and the proposed principal building will occupy 5,051
square feet, with an additional 7,067 square foot canopy. V Boys
subsequently revised its application, removing all requested
variances.
We review the Borough's zoning ordinance (hereinafter
Ordinance). Ordinance, § 34-29.1, states, "In the B-3 Highway
Commercial Districts only those uses listed below are permitted":
"[a]ny use permitted in the B-1 Zone." "In the B-1 Central
Business District only the following uses are permitted:" (1)
"[b]usiness uses of a strictly retail sales and service type,
conducted entirely within the confines of a building, such as
stores, shops and offices, and involving the rendering of service
or sale of goods directly to the ultimate consumer" and (2)
"[p]ublic garages and service stations." Ordinance, § 34-26.1.
"Public garages and service stations shall be subject to all of
the requirements of all of the terms and provisions of Section 34-
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8, Public Garages or Service Stations," and "[t]he minimum ground
floor area of any public garage or service station hereafter
erected shall not be less than 1,600 square feet." Ordinance, §
34-26.1(d)(1), (2).
According to Ordinance, § 34-3, a "structure" is "[a]nything
constructed or erected, whether portable, prefabricated, sectional
or otherwise, which is permanent or temporary, located on and/or
under the ground or attached to something so located." It does
not define "building," although it does distinguish between a
"structure" and a "building." See Ordinance, § 34-4.2 ("No
building or structure or part thereof shall be erected, raised,
moved, extended, enlarged, altered or demolished . . . .");
Ordinance, § 34-4.5, 4.13, 8.1, 8.2, 9.2, 40.1. "[N]o lot may
contain more than one principal building." Ordinance, § 34-4.4.
"There shall not be more than one accessory building on any
lot . . . . A single structure used as a garage for the storage
of motor vehicles shall not be construed as to exclude an accessory
building for the purpose of this Paragraph . . . ." Ordinance, §
34-4.5(c).
Ordinance, § 34-4.3, defines a "fast-food restaurant" as "[a]
restaurant having a limited menu and serving food to the general
public for consumption either on or off the premises." It does
not define "restaurant."
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On August 15, 2013, plaintiffs sent the Planning Board a
letter, arguing the Planning Board lacked jurisdiction over V
Boys' application because the proposed gas station and convenience
store required variances from the Zoning Board. In response, on
August 20, 2013, the Zoning Officer sent the Planning Board a
memorandum confirming his determination that V Boys' application
required no variances from the Zoning Board.
On September 6, 2013, plaintiffs challenged the Zoning
Officer's decision, requesting review by the Zoning Board. The
Zoning Officer testified at the April 6, May 21, and June 18, 2014
meetings. He reviewed V Boys' application and plans for the lot
and concluded V Boys was applying to develop a "gas station with
a retail component." He testified he was "familiar with the
standards that are applicable to public garages and service
stations." He "looked at [the] plan that showed a gas station
with a retail store attached to it and that is something that the
Borough has allowed . . . down Route 17 [for] probably over 20
years." He said the Ordinance does not define "restaurant," but
explained the difference between a convenience store and a
restaurant is "[s]eating . . . . A fast food restaurant is a
restaurant that sells prepared foods either indoors or outdoors
in disposable containers; i.e., paper or plastic and does not have
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waiter service." He said V Boys' application did not include any
seating, so their plan did not include a restaurant.
On July 16, August 20, and September 17, 2014, plaintiffs
presented an expert witness, who was a licensed professional
engineer, licensed architect, and certified municipal engineer.
He testified the Ordinance requires the service station "to include
a building with a minimum ground floor area of 1,600 square feet."
He said this leads to two possible interpretations: (1) the service
station fails to comply with the Ordinance because it does not
have a minimum floor area of 1,600 square feet, or (2) the service
station's canopy is a second building on the lot, which also
violates the Ordinance. He explained that the 5,051 square foot
building does not satisfy the service station's requirement for
1,600 square feet because the 5,051 square foot building is for
the convenience store. "It does not have anything to do with the
repair or storage of vehicles[,] and therefore it in my opinion
does not meet the requirement of the 1,600 square foot building
that services the public garage or service station that's required
for this use in this zone."
The expert also read the Ordinance defining "fast food" as a
"restaurant having a limited menu and serving food to the general
public for consumption either on or off the premises." He
therefore opined "that the use that's proposed here is not one
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that I would classify as a retail store but rather as a fast-food
establishment in accordance with the definitions set forth in your
ordinance."
V Boys presented its expert, a licensed professional planner,
on September 17, November 19, and December 17, 2014. He agreed
with the Zoning Officer's "determination that the applicant meets
all the conditions for the public garage or service station use."
He noted the Zoning Officer had "consistently approved service
stations and convenience stores in the B-3 zone." As a
professional planner, he further noted "that most modern service
stations generally do include both convenience, retail, and a
service station component on site."
V Boys' expert had reviewed the Planning Board's previous
decisions and saw "four service stations with retail convenience
stores [had] been approved along Route[] 17 since 1999." He said
the "definition of a fast food establishment specifically refers
to restaurant as determined by the zoning official in this Borough
is an establishment with seats." He further testified the 1,600
square foot canopy is "clearly not a building." He noted the
Planning Board had never considered a service station's canopy as
a second building.
The Zoning Board issued its written decision in favor of V
Boys on March 18, 2015. Five members voted in favor of V Boys,
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one in favor of plaintiffs, and three abstained. The Zoning Board
concluded, "[T]he retail use and service station use is permitted
whether considered one (1) combined use or two (2) separate uses
and, therefore, the application was properly before the Planning
Board." The Zoning Board further concluded the service station
does not require a 1,600 square foot ground floor, and if it did,
the convenience store or area of the canopy would satisfy the
requirement.
On May 4, 2015, plaintiffs filed their complaint challenging
the Zoning Board's decision to deny their appeal of the Zoning
Officer's determination that V Boys' application did not require
any variances. Defendants answered, and the court held a bench
trial on November 16, 2015. The court issued an eight-page written
decision on February 1, 2016, affirming the Zoning Board.
This appeal followed, with plaintiffs asserting five claims
of trial court error. First, the trial court should have concluded
V Boys' proposed gas station and convenience store fails to comply
with Ordinance, § 34-26.1(d)(2), which states, "The minimum ground
floor area of any public garage or service station hereafter
erected shall not be less than 1,600 square feet." Second, the
trial court should not have considered the Zoning Officer's
testimony because he "did not possess the requisite competence and
understanding of the Borough's ordinances to make such
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determinations." Third, the trial court should have concluded the
Borough's ordinances "clearly restrict the development of lands
in the B-3 Zone District to a single principal use and limit the
number of principal structures." Fourth, the trial court's "ruling
that the 7,000 square foot canopy does not constitute a principal
building is not supported by the Zoning Ordinance or MLUL." Fifth,
"[t]he trial court failed to determine whether the proposed use
of the WaWa building is a fast-food establishment, pursuant to the
Zoning Ordinance."
II.
Zoning boards make quasi-judicial decisions to grant or deny
applications within their jurisdiction. Willoughby v. Planning
Bd. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997);
Kotlarich v. Mayor of Ramsey, 51 N.J. Super. 520, 540-42, (App.
Div. 1958). The determination of a zoning board is presumed to
be valid. Cell S. of N.J. v. Zoning Bd. of Adjustment of W.
Windsor, 172 N.J. 75, 81 (2002); Kramer v. Bd. of Adjustment, Sea
Girt, 45 N.J. 268, 285 (1965). The court's review of a board's
decision is based solely on the record before the board. Kramer,
supra, 45 N.J. at 289. A court must not substitute its own
judgment for that of the board unless there is a clear abuse of
discretion. See Cell S. of N.J., supra, 172 N.J. at 81. The
burden is on the challenging party to demonstrate that the board's
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decision was arbitrary, capricious, or unreasonable. Ibid.; New
Brunswick Cellular v. S. Plainfield Bd. of Adjustment, 160 N.J.
1, 14 (1999); Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of
Adjustment, 152 N.J. 309, 327 (1988).
The Municipal Land Use Law expressly rejects adherence to the
rules of evidence in zoning board hearings. See N.J.S.A. 40:55D-
10(e) (declaring that "[t]echnical rules of evidence shall not be
applicable to the hearing" of a municipal land use agency); see
also Baghdikian v. Bd. of Adjustment of Ramsey, 247 N.J. Super.
45, 49 (App. Div. 1991) (stating that a zoning board "cannot be
equated with courts" and procedural safeguards employed in
judicial proceedings should not be "imported wholesale" into
proceedings before a land use board). Consequently, a zoning
board may consider an opinion when the data and other evidence
establish that it is not arbitrary or unreasonable.
This court applies the same standards as the trial court.
Bressman v. Gash, 131 N.J. 517, 529 (1993); D. Lobi Enters. v.
Planning/Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 360 (App.
Div. 2009). However, when an appeal raises a question of law, we
apply a plenary standard of review. Wyzykowski v. Rizas, 132 N.J.
509, 518 (1993).
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A.
Plaintiffs first argue the trial court should have concluded
V Boys' proposed gas station and convenience store fails to comply
with Ordinance, § 34-26.1(d)(2), which requires the service
station to have a floor area of 1,600 square feet. Their expert
testified the 5,051 square foot building does not satisfy this
requirement because it is for the convenience store, not the
service station. He also said the canopy could not satisfy the
requirement unless it was considered a second building, something
not permitted in the zone.
Defendants contend Ordinance, § 34-29.1, does not incorporate
the subsections of Ordinance, § 34-26.1. We decline to rely on
this argument because Ordinance, § 34-26.1, permits certain uses
but limits them according to their subsections.
Plaintiffs' argument is also misguided. Ordinance, § 34-
26.1(d)(2), states, "The minimum ground floor area of any public
garage or service station hereafter erected shall not be less than
1,600 square feet." Ordinance, § 34-4.5, states, "A single
structure used as a garage for the storage of motor vehicles shall
not be construed as to exclude an accessory building for the
purpose of this Paragraph . . . ." We therefore conclude the
canopy, like a garage, is not a principal or accessory building,
but the 7,067 square foot canopy does establish the service
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station's floor area exceeds 1,600 square feet. We further note
Ordinance, § 34-26.1(d)(2), does not limit the 1,600 square feet
for the exclusive use of the service station, so the 5,051 square
foot convenience store clearly satisfies the area required by the
Ordinance.
B.
Plaintiffs next argue the trial court should not have
considered the Zoning Officer's testimony because he "did not
possess the requisite competence and understanding of the
Ordinance to make such determinations." The Zoning Officer
reviewed V Boys' application and plans for the lot, and as Ramsey's
Zoning Officer, he was familiar with the Ordinance. We conclude
his opinion was based on data and other evidence that established
his opinion was not arbitrary or unreasonable. See Cell S. of
N.J., supra, 172 N.J. at 81; New Brunswick Cellular, supra, 160
N.J. at 14; Smart SMR of N.Y., Inc., supra, 152 N.J. at 327.
C.
Plaintiffs also argue the trial court should have concluded
the Borough's ordinances "clearly restrict the development of
lands in the B-3 Zone District to a single principal use and limit
the number of principal structures." Ordinance, § 34-29.1, states,
"In the B-3 Highway Commercial Districts only those uses listed
below are permitted": "[a]ny use permitted in the B-1 Zone." The
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Ordinance does not qualify the number of "uses . . . permitted."
We decline to add any numerical limitation to the Ordinance.
D.
Plaintiffs correctly note, "No lot may contain more than one
principal building." Ordinance, § 34-4.4. They argue the trial
court's "ruling that the 7,000 square foot canopy does not
constitute a principal building is not supported by the Zoning
Ordinance or MLUL." This argument lacks merit. We discern no
basis for considering a gas station canopy as a principal building.
While the Ordinance does not define "building," it does distinguish
between a "structure" and a "building. See Ordinance, § 34-4.2,
4.5, 4.13, 8.1, 8.2, 9.2, 40.1. We affirm the trial court's
conclusion the canopy constitutes a structure, not a building.
E.
Last, plaintiffs argue, "The trial court failed to determine
whether the proposed use of the WaWa building is a fast-food
establishment, pursuant to the Zoning Ordinance." First, the
trial court did clearly state, "[T]he WaWa associated with the gas
station is not a fast food restaurant." Ordinance, § 34-4.3,
defines a "fast-food restaurant" as "[a] restaurant having a
limited menu and serving food to the general public for consumption
either on or off the premises." Although the Ordinance does not
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define "restaurant," the Zoning Officer's definition requiring
seating makes common sense.
Affirmed.
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