SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 19T3 TWO DAUGHTERS, LLC, Plaintiff

- Appellant,

v. HARBOUR BAY, LLC, THE CITY OF MARGATE PLANNING BOARD and THE CITY OF MARGATE, Defendants

- Respondents.

__________________________ _

A rgued t elephonically September 15, 2020

– Decided October 7, 2020 Before Judges Fisher and Gummer. On appea l from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L

- 0 990

- 18. Anthony Monzo argued the cause for appellant (Monzo Catan e se Hillegass, P C , attorneys; Louis A. DeLollis, on the brief s ). Benjamin Zeltner argued the cause for resp ondent Harbour Bay, LLC (Lev ine, Staller, Sklar, Chan & Brown, P A , attorneys; Benjamin Zeltner, on the brief).

NOT FOR PU BLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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. 1:36

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- 19T3 El ias T. Manos argued the cause for respondent The City of Margate Planning Board

. John Scott Abbott argued the cause for respondent The City o f Margate. PER CURIAM Pla intiff Two Daughters, LLC , appeals from a final judgment rejecting its prerogative

- writs challenge to defendant City of Margate Planning Board ' s approval of defendant developer Harbo u r Bay, LLC ' s application for variance relief and site

- plan approval and t o two municipal ordinance s adopted by defend ant City of Margate

. We substantially agree with the comprehensive analysis of J udge Julio L. Mendez and affirm. Plaintiff is the owner of Sophia ' s, a restaurant that is across the street from the Harbo u r Bay property at issue. With structures that have been on the property since the 1960s, t he Harbo u r Bay property is in need of redevelopment. Harbo u r Bay submitted to the Board an application in which it sought preliminary and fina l major site plan approval o f its redevelopment plan for the property. Harbo u r Bay proposed to demolish the ex isting structures on the property and build a mixed

- use building occupying the same footprint as the existing building with a n approximately 2600

- square - foot new addition. That new building would consist of an office, a 149

- seat restaurant, and a bait shop3 A

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and would be elevated to meet FEMA requirements . Harbo u r Bay proposed completely rebuilding the existing marina, with a new bulkhead that woul d help to reduce flooding , a boat fueling station, and a public pedestrian boardwalk. In its application Ha rbo u r Bay also sought variance relief pursuant to N.J.S.A. 40:55D

- 70 ( c ) and a waiver from the submission of a written traffic impact study. The Boar d conducted a hearing on Har bour Bay ' s application on February 22, 2018. During that hearing, the Board hea rd testimony from Harbour Bay ' s planning expert, engineer, architect, and traffic

- engineer expert, and members of the public

. 1 It heard the testimo ny of the Board's planner an d reviewed his report and the report of the C ity 's engineer. No one presented e xpert testimony opposing the applications or contesting the conclusions of Harbour Bay's expert witnesses. Plaintiff's representatives attended the hearing, but did not testif y , present any witnesses, or oppose Harbour Bay's application. In an eleven

- pag e Decision and Resolution, the Board granted the application, f

inding that Harbour Bay's proposed project w as proper in all

1 Plaintiff cites to th e " numerous objectors " who spoke at the hearing as evidence of the adverse impact plaintiff claims this project will have on neighb oring properties . In fact , only three members of the public spoke in opposition to the propos al. Two people spoke in favor of it. One business o wner expressed concern about how the construction of the project would impact businesses during summer months

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respects, would revitali ze the bay

- front area and a d vance the C ity's Master Plan and the purposes of the Waterfront Special District zone in which the property was located , and , as a whole , would advance several zoning purposes , citing N.J.S.A. 50:55D

- 2

. As to the requested vari ances, t he Board concluded , among other things, that they wo uld advance the goals of the Municipal Land Use Law ( " MLUL ") , N.J.S.A. 40:55D

- 1 to

- 163 , their benefits would outweigh any detriment, they were justified by physical features and constraints affec ting the property , and they would not cause a substantial detriment to the public or impair the intent of the zon ing plan and ordinance. The Board set forth specifically its factual conclusions , including conclusions regarding setbacks, signage, parking , and fencing , and its reasons for granting the request to waive the submission of a written traffic

- impact study. When Harbour Bay submitted its application, t he Harbour Bay property was located in part in a designated Waterfront Special District and in p art in a riparian district, which did not perm it restaurant or office uses. According to the Board's zoning officer and planner, the existing boundary line between those districts was created by mistake in 2008 and had the unintentional effect of renderin g existing businesses non

- co nforming. Harbour Bay proposed that the boundary line between the districts be relocated to its prior location , with5 A

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existing uses reverting to being conforming uses in the Waterfront Special District. After an investigation b y the C ity , the Board's issu ance of a Consistency Report recommending the adoption of an ordinance resetting the boundary line, and the required publication of the proposed ordinance, and having received no opposition, the C ity adopt ed Ordinance No. 02

- 201 8 during a public meeting he ld on Febr uary 1, 2018 . The ordinance h ad the effect of moving the district boundary line , impacting approximately forty

- two properties. On October 4, 2018, the City adopted Ordinance No. 24

- 2018 , a comprehensive ordinance t hat revised in many respects the land use chapter of the City's Code , including a revision regarding parking requirements

. The amendment to that section of the Code had the effect of including property located in the Waterfront Special District and r ipari an zones in the Code’s exist ing on - site parking allowance. 2 On May 4, 2018, plaintiff filed its c omplaint in lieu of prerogative writs , challenging each of the Board's decisions regarding the Harbour Bay application and , more than ninety days after the City had adopted it, Ordinan ce No. 0 2

- 2018

.

2 It also reduce d the req uired number of parking spaces for restaurants. Plaintiff does not challenge that aspect of the ordinance.6 A

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Plaintiff later amended its c omplaint to include a challenge to Ordinance No.
24

- 2018. After hearing oral argument, Judge Mendez issued a f inal o rder and a twenty

- page opin i on in which he held t hat the Board's decisions were not arbitrary , capricious, or unreasonable; upheld the validity of Ordinance Nos. 0 2

- 2018 and 24

- 2018 ; and found that plaintiff's challenge to Ordinance No. 0 2

- 2018 was time barred. Plaintiff appeals each aspect of the court's decision. Pl aintiff argues that the tria l court should have found that the Board ' s decision s w ere arbitrary, capricious, and unreasonable because Harbour Bay failed to present evidence that a hardship would res ult if the requested variances were not granted , granting the variances would not caus e substantial detriment to the public , or positive criteria for the variances existed . Plaintiff also faults the court for upholding the Board ' s decision not to require a traffic study. Plaintiff asserts that the trial
court e rred in deciding that plaint iff ' s spot

- zoning challenge to Ordinance No. 02

- 2018 was time

- bar r ed , Ordinance No. 02

- 2018 was valid and did not constitute impr oper spot zoning , and the City ' s adoption of Ordinance No. 24

- 2018 was not arbitrary, capricious, o r unreasonable. Courts do not determin e the wisdom of a planning board action. Kaufmann v. Planning Bd. for Warren , 110 N.J. 551, 558 (1988)

. Land

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decisions "are entrusted to the sound discretion of the municipal boards

. . . . " Ibid. Courts def er to decisions of local boa rds if they are adequately supported by the record , Lang v. Zoning Bd. of Adjustment , 160 N.J. 41, 61 ( 1999) , and if they are no t arbitrary, unreasonable, or capricious, Pullen v. Twp. o f S

. Plainfield Planning Bd. , 291 N.J. Sup er 1, 6 (App. Div. 1996)

. A party challenging a board's decision must establish that the board ' s action was arbitrary, unreasonable, or capricious. Price v. Himeji , LLC , 214 N.J. 263, 284 (2013). A board's factual determinations are entitled to "great w eight" and should not be dis turbed "unless there is insufficient evidence to support them."
Row atti v. Gonchar , 101 N.J. 46, 52 (1985). When reviewing a board decision,
a court must consider the issues before the board in their entirety and not focus

on the legal sufficiency of one factor standing alone. Kramer v. Bd. of Adjustment , 45 N.J. 268, 2 8 7 (1965)

. For example, a court cannot consider a variance in isolation, but must consider it "in the context of its effect on the development proposal, the ne ighborhood, and the zoning p lan." Pullen , 291 N.J. Super

. at 9

. Our role in review ing zoning ordinances is narrow. Zilinksy v. Zoning Bd. of Adjustment of Verona , 105 N.J. 363 , 367 ( 19 87 )

. Courts recognize that because of their familiarity with their communities, local officials "are best8 A

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suited to make judgments concerning local zoning ordinances." Pullen , 291 N.J. Super. at 6. Thus, we presume that a governing municipal body's actions

are valid. Jayber Inc. v. Mun

. Co un cil of W

. Orange , 238 N.J. S uper. 165, 173 (App. Div. 19 90 ). We defer to its judgment "so long as its decision is supported by the record and is not so arbitrary, unreasonable or capricious as to amount to an abuse of discretion." Ibid. The party challenging the ordinance must ove rcom e its presumption of val idity. Riggs v. Long Beach , 109 N.J. 601, 611 (1988). If an ordinance is "debatable, it should be upheld." Ibid. With the MLUL, o ur Legislature authorized municipalities to enact and amend zo ning ordinances

. See N.J.S.A. 40: 55D

- 62(a) ; see also Ri y a Fin negan LLC v. Twp. Council of S

. Brunswick , 197 N.J. 184, 191 (2007)

. A municipality may amend a zoning ordinance while a site

- plan application is pending; it may amend an ordinance in direct response to a pending application. Manalapan Realty, L.P. v. Tw p . Comm

. of Manalapan , 140 N.J. 366 , 37 8

- 79 (1995) ; see also House of Fire Christian Church v. Zoning Bd. of Adjustment of Clif

ton , 379 N.J. Super. 526, 541

- 42 (App. Div. 2005)

. The amendment simply must be consistent with the MLUL. Manal apan , 140 N.J.

a t 379.9 A

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Applying th ese standard s , we find no cause to disturb Judge Mendez ' s carefu l l y perpend ed findings, all of which are well supported by the record. We reject plaintiff's contention that the B oard made inadequate findings t o support its conclusion s . To the contrary, after considering the unopposed expert testimony and other evidence presented during its hearing on Harbour Bay's application , the Board issued a detailed resolution spelling out the

reasons for its approval of the application, including t he request for variance s

on setbacks, fencing, signage, and parking. We agree with Judge Mende z 's conclusion that the B oard appropriate ly con templated the impact the project would have on the neighboring properties and the zone

. As for the waiver of th e traffic study, the court correctly noted that it was within the Board's d iscretion to determine if it needed a traffic study and reasonably found that the Board acted within its discretion when it determined that a written stu dy was not necessary when th e expert who would author that study would be available at the hearing and could be questioned by members of the Board and the public. We find no reason to disturb Judge Me ndez's findings as to the o rdinances. Judge Mendez act ed within h is discretion in finding plaintiff's challenge to Ordinance No. 0 2

- 2018 to be time barred by Rule 4:69

- 6 and in rejecting10 A

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plaintiff's attempt to enlarge the time to make that challenge. See Tri

- State Ship Repair & Dry Dock Co. v. City of Perth Amboy , 349 N.J. Super. 418, 423

- 24 (App. Div. 2002). Judge Mendez's determination that Ordinance No. 0 2

- 2018 did not constitute impermissible spot zoning was supported by credible evidence in the record regarding its impact on approximately forty

- two othe r properties and the prior e rroneous setting of the boundary line. See Riva Ltd. Liab. Co. v.
T wp. Council of S. Brunswick , 197 N.J. 184 , 187 (2008). His finding that Ordinance No. 24

- 2018 serves the general welfare of the zone and a legitimate
purpose b y facilitating redevelopment of dilapidated properties and reduc ing the number of variances requeste d also is supported by the r ecord and the law. See Price , 214 N.J. at 284 (recognizing that MLUL "exhibits a preference for municipal land use planning by ordinance rather than by var iance"). All of Judge Mendez ' s finding s were supported by sufficient evidence in the record

. His findings , and the findings of the Board and the City, are entitled to our deference. We, therefore, affirm substantially for the reasons set forth by Judge Mende z in his well

- reasoned and thorough written opinion. Affirmed

.