JOHN AND LISA ZERVOPOULOS VS. PLANNING BOARD OF THE BOROUGH OF DUNELLEN(L-6102-14, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-2615-15T3
JOHN and LISA ZERVOPOULOS,
Plaintiffs-Appellants,
v.
PLANNING BOARD OF THE
BOROUGH OF DUNELLEN
and 216 NORTH AVENUE
ASSOCIATES, LLC,
Defendants-Respondents.
_________________________________________________
Argued November 29, 2016 – Decided June 12, 2017
Before Judges Messano and Guadagno.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Docket No. L-6102-14.
James E. Stahl argued the cause for
appellants (Borrus, Goldin, Foley, Vignuolo,
Hyman & Stahl P.C., attorneys; Mr. Stahl, of
counsel and on the brief; Jay Holub, on the
brief).
John M. Lore argued the cause for respondent
Planning Board of the Borough of Dunellen
(DeMarco & Lore, attorneys; Mr. Lore, on the
brief).
Joseph A. Paparo argued the cause for
respondent 216 North Avenue Associates, LLC
(Hehl & Hehl, P.C., attorneys; Mr. Paparo,
of counsel and on the brief; Corey Klein, on
the brief).
PER CURIAM
Plaintiffs John and Lisa Zervopoulos appeal from the April
13, 2015 Law Division order affirming the decision of defendant
Planning Board of Dunellen (Board) granting preliminary and
final site plan approval and bulk variances to defendant 216
North Avenue Associates (216 North). Plaintiffs also appeal
from the January 19, 2016 order dismissing their complaint with
prejudice after trial.
Plaintiffs own a laundromat located on property (Lot 18) in
Dunellen. In 2005, Primax Properties (Primax), then owner of
property adjoining Lot 18, applied to the Board for subdivision
approval to split the parcel into two lots (Lots 16 and 17) and
develop each parcel separately. Plaintiffs initially opposed
the application as the proposed site plan depicted parking on
plaintiffs' Lot 18. Plaintiffs withdrew their opposition after
Primax agreed to execute an easement which provided a shared
driveway and parking lot.
Thereafter, Primax began construction of an auto parts
store. This led to further discussions and eventually an
amended easement dated December 17, 2009, containing use
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restrictions preventing plaintiffs from using their lot for auto
parts sales and Primax from using its lots for laundry
facilities.
In October 2013, 216 North purchased the property from
Primax. In April 2014, 216 North applied to the Board for site
plan approval and variances to build a three-story mixed use
building with retail space on the first floor and two floors
containing four residential units per floor.
On June 23, 2014, the Board conducted a hearing on the
application. 216 North presented four expert witnesses. Steven
Parker, a civil engineer who prepared the site plan, requested
that the Board waive several items normally required such as an
environmental impact statement, a drainage study, and a wetlands
study. Parker explained that these items were addressed in the
2006 application and 216 North was "not proposing any changes to
the site . . . other than the completion of the construction of
the building."
Alan Feld, a licensed architect, testified that the
original approved project was for one commercial space of
approximately 4200 square feet, but now the structure will have
a second and third floor, as well as a basement with a net area
of 3260 square feet. The second and third floor of the proposal
will have eight units, which will consist of two bedrooms per
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unit. Feld testified that the proposed building will "advance
the design standards of the redevelopment of the downtown
Dunellen district."
Joseph Staigar, a traffic engineer, testified that the new
proposal does not require a reapplication as to the Department
of Transportation access permits because there are no
modifications to the driveways or the operation of the driveways
that would require different permits.
Staigar testified that adding the additional eight
residential units to the commercial space would have minimal
impact on traffic conditions on the site and would not violate
the current permits which allow 100 trips per hour; the units,
even during peak hours, would not exceed that limitation.
During cross-examination by plaintiffs' counsel, Staigar
acknowledged that he was aware of the easement agreement as to
the use of the parking spaces, but he did not consider the
shared use of the parking lot.
Keenan Hughes, a licensed planner, testified that the
proposed plan does not need a minimum on-site parking
requirement as it is under the 20,000 square feet requirement
and the Board is requiring one because the lots in question are
part of a shared access. Hughes explained that the proposed
plan to have a mixed use building "helps the borough to achieve
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its interest in providing downtown living opportunity and what
is a very appropriate location. . . . [and] granting of the
variance would advance purposes of the plan." During cross-
examination, Hughes admitted that he did not consider the shared
parking space of plaintiffs' laundromat when determining the
positive effect of the mixed use proposal. Plaintiffs called no
witnesses at the hearing. The Board approved the amended site
plan and variances.
Plaintiffs filed a two-count complaint in lieu of
prerogative writs challenging the decision of the Board and
seeking to enjoin the construction of the mixed use facility.
Plaintiffs claimed the proposal to add two additional floors of
residential units violates the amended easement agreement as the
parties intended to share parking of the laundry and retail
store only, and the residential units will place additional
strain on the facility. Plaintiffs also claimed that the use
restriction limits 216 North to construction of retail stores
and prohibits residential units. Judge James P. Hurley
bifurcated the complaint and dismissed the first count
challenging the decision of the Board granting the site plan
approval and the variances.
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Trial on the second count was limited to whether the
amended easement agreement restricted the use of Lot 17 to
retail stores.
Plaintiff Lisa Zervopoulos testified that she and her
husband John purchased the laundromat in 2003. The laundromat
consists of sixty-eight washing machines and one hundred dryers.
She and her husband attended the planning board meeting in 2005
to object to Primax's application because their property was
included in the plans. They agreed to support the application
in exchange for an easement agreement between the parties for
parking and access.
Plaintiff and her husband filed a lawsuit against Primax in
2009 regarding a fence and disputes related to parking during
the construction of the auto parts store. The original easement
agreement was amended in December 2009 after the parties settled
the matter. The parties agreed in the Amended Agreement that
because Primax had a silt fence that blocked plaintiffs'
property on Lot 18 during the construction, Primax would develop
the Lot 17 parking area in two separate phases so it would not
affect either party's ability to utilize the parking area.
Plaintiff testified that there were no other restrictions
on the use of the building in the Amended Agreement other than
the use of it being a laundromat because plaintiff "didn't care
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what it was going to be used for. [She] care[s] more about the
size of the actual building."
Defendant called Joseph Villani, who formed 216 North in
2013 with the intent to purchase the property located at 216
North Avenue from Primax. Villani testified that the
application filed with the Board in 2014 did not change any site
improvements that were already completed, did not propose to
remove any parking spaces, and did not alter physically in any
way the driveway that both parties shared.
Defendant then called Joseph Staigar, who testified before
the Board in 2014. Staigar prepared a parking study report "to
establish the accumulation of parking at peak times on the
property, . . . to project how much parking would be required
coincidentally with the existing uses on the site for the
proposed uses, projected the proposed use parking demand at
times when the . . . existing uses would peak." Staigar noted
that there are fifty-five parking spaces on site and thirteen
metered spaces along the frontage of North Avenue which totals
sixty-eight available parking spaces.
Staigar testified that if the property or lot is less than
20,000 square feet, there is no parking standard under the code,
but the borough ordinance requires one space for every 200
square feet of retail and 1.75 spaces per unit. Applying this
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calculation to the laundromat, the existing apartments above it,
the proposed retail store, and the eight apartments, sixty-two
spaces would be required. However, the redevelopment plan for
the borough allows for "one half of the parking requirement for
any use whose peak attendance will be at night and may be
assigned to a use which was closed at night." Staigar
calculated that the ordinance requires fifty spaces, and the
actual demand is for fifty-four spaces; both are less than the
fifty-five spaces available.
Judge Hurley accepted Mr. Staigar's conclusions and found
that "his analysis is based on acceptable engineering principles
supported by observable facts." The judge noted that plaintiffs
offered no contradictory testimony. The judge found the terms
of the Amended Agreement were "clear as written" and contain no
reference to traffic plans. The judge concluded that there was
no actual or anticipatory breach of the Amended Agreement by 216
North, and without establishing a breach, the relief sought by
plaintiffs cannot be granted. Finally, the judge noted that
plaintiffs' admitted plan to expand the laundromat is contrary
to their interpretation of the restrictions contained in the
Amended Agreement.
On appeal, plaintiffs claim the planning board's approval
was arbitrary, capricious, and unreasonable as the applicant
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failed to provide a factual foundation to support the
application and as such, the approval should be declared void.
Plaintiffs also claim the trial judge erred in its
interpretation of the essential elements of the easement
agreement.
We begin our review of the Board's action by noting that
"public bodies, because of their peculiar knowledge of local
conditions must be allowed wide latitude in the exercise of
delegated discretion." Kramer v. Bd. of Adjustment, 45 N.J. 268,
296 (1965).
Our examination of the evidence presented to the Board
reveals ample support for its decision to grant the site plan
approval and variances. Plaintiffs have failed to establish
that the Board's actions were arbitrary, capricious, or
unreasonable.
Similarly, we find no proof that the trial judge erred in
his interpretation of the elements of the easement and we affirm
the January 19, 2016 order dismissing plaintiffs' complaint with
prejudice, substantially for the reasons set forth in Judge
Hurley's thorough written decision. R. 2:11-3(e)(1)(E).
Affirmed.
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