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

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).

NOT FOR PUBLICATION WITHOUT THE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.

June 12, 2017
2 A-2615-15T3

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 crossexamination, 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.
6 A-2615-15T3

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 
9 A-2615-15T3

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.