SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0388-19T3

TWO DAUGHTERS, LLC,

Plaintiff-Appellant,

v.

HARBOUR BAY, LLC, 

THE CITY OF MARGATE 

PLANNING BOARD and 

THE CITY OF MARGATE,

Defendants-Respondents.

___________________________

Argued telephonically September 15, 2020 –

Decided October 7, 2020

Before Judges Fisher and Gummer.

On appeal from Superior Court of New Jersey, Law 

Division, Atlantic County, Docket No. L-0990-18.

Anthony Monzo argued the cause for appellant (Monzo 

Catanese Hillegass, PC, attorneys; Louis A. DeLollis, 

on the briefs).

Benjamin Zeltner argued the cause for respondent 

Harbour Bay, LLC (Levine, Staller, Sklar, Chan & 

Brown, PA, attorneys; Benjamin Zeltner, 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NOT FOR PUBLICATION WITHOUT THE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.
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Elias T. Manos argued the cause for respondent The 

City of Margate Planning Board.

John Scott Abbott argued the cause for respondent The 

City of Margate.

PER CURIAM

Plaintiff 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 Harbour Bay, LLC's application for variance 

relief and site-plan approval and to two municipal ordinances adopted by 

defendant City of Margate. We substantially agree with the comprehensive 

analysis of Judge Julio L. Mendez and affirm. 

Plaintiff is the owner of Sophia's, a restaurant that is across the street from 

the Harbour Bay property at issue. With structures that have been on the 

property since the 1960s, the Harbour Bay property is in need of redevelopment. 

Harbour Bay submitted to the Board an application in which it sought 

preliminary and final major site plan approval of its redevelopment plan for the 

property. Harbour Bay proposed to demolish the existing structures on the 

property and build a mixed-use building occupying the same footprint as the 

existing building with an approximately 2600-square-foot new addition. That 

new building would consist of an office, a 149-seat restaurant, and a bait shop
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and would be elevated to meet FEMA requirements. Harbour Bay proposed 

completely rebuilding the existing marina, with a new bulkhead that would help 

to reduce flooding, a boat fueling station, and a public pedestrian boardwalk. In 

its application Harbour 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 Board conducted a hearing on Harbour Bay's application on February 

22, 2018. During that hearing, the Board heard testimony from Harbour Bay's 

planning expert, engineer, architect, and traffic-engineer expert, and members 

of the public.

1

 It heard the testimony of the Board's planner and reviewed his 

report and the report of the City's engineer. No one presented expert testimony 

opposing the applications or contesting the conclusions of Harbour Bay's expert 

witnesses. Plaintiff's representatives attended the hearing, but did not testify, 

present any witnesses, or oppose Harbour Bay's application.

In an eleven-page Decision and Resolution, the Board granted the 

application, finding that Harbour Bay's proposed project was proper in all 

1

 Plaintiff cites to the "numerous objectors" who spoke at the hearing as 

evidence of the adverse impact plaintiff claims this project will have on 

neighboring properties. In fact, only three members of the public spoke in 

opposition to the proposal. Two people spoke in favor of it. One business owner 

expressed concern about how the construction of the project would impact 

businesses during summer months.
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respects, would revitalize the bay-front area and advance the City'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 variances, the Board concluded, among 

other things, that they would 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 affecting the 

property, and they would not cause a substantial detriment to the public or impair 

the intent of the zoning 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, the Harbour Bay property 

was located in part in a designated Waterfront Special District and in part in a

riparian district, which did not permit 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 

rendering existing businesses non-conforming. Harbour Bay proposed that the 

boundary line between the districts be relocated to its prior location, with 
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existing uses reverting to being conforming uses in the Waterfront Special 

District. After an investigation by the City, the Board's issuance 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 City adopted Ordinance No. 02-2018 during 

a public meeting held on February 1, 2018. The ordinance had 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 that 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 riparian zones in the Code’s 

existing on-site parking allowance.2 

On May 4, 2018, plaintiff filed its complaint 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, Ordinance No. 02-2018. 

2

It also reduced the required number of parking spaces for restaurants. Plaintiff 

does not challenge that aspect of the ordinance.
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Plaintiff later amended its complaint to include a challenge to Ordinance No. 

24-2018. After hearing oral argument, Judge Mendez issued a final order and a 

twenty-page opinion in which he held that the Board's decisions were not 

arbitrary, capricious, or unreasonable; upheld the validity of Ordinance Nos. 02-

2018 and 24-2018; and found that plaintiff's challenge to Ordinance No. 02-

2018 was time barred.

Plaintiff appeals each aspect of the court's decision. Plaintiff argues that 

the trial court should have found that the Board's decisions were arbitrary, 

capricious, and unreasonable because Harbour Bay failed to present evidence 

that a hardship would result if the requested variances were not granted, granting 

the variances would not cause 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 erred in deciding that plaintiff's spot-zoning challenge to Ordinance No. 

02-2018 was time-barred, Ordinance No. 02-2018 was valid and did not 

constitute improper spot zoning, and the City's adoption of Ordinance No. 24-

2018 was not arbitrary, capricious, or unreasonable.

Courts do not determine the wisdom of a planning board action. 

Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 558 (1988). Land-use 
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decisions "are entrusted to the sound discretion of the municipal boards . . . ." 

Ibid. Courts defer to decisions of local boards if they are adequately supported 

by the record, Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 61 (1999), and if 

they are not arbitrary, unreasonable, or capricious, Pullen v. Twp. of S.

Plainfield Planning Bd., 291 N.J. Super 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 weight" and 

should not be disturbed "unless there is insufficient evidence to support them." 

Rowatti 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, 287 (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 neighborhood, and the zoning plan." Pullen, 291 N.J. 

Super. at 9. 

Our role in reviewing zoning ordinances is narrow. Zilinksy v. Zoning 

Bd. of Adjustment of Verona, 105 N.J. 363, 367 (1987). Courts recognize that 

because of their familiarity with their communities, local officials "are best 
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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. Council of W. Orange, 238 N.J. Super. 165, 173 

(App. Div. 1990). 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 overcome its presumption of validity. Riggs v. Long Beach, 

109 N.J. 601, 611 (1988). If an ordinance is "debatable, it should be upheld." 

Ibid.

With the MLUL, our Legislature authorized municipalities to enact and 

amend zoning ordinances. See N.J.S.A. 40:55D-62(a); see also Riya Finnegan 

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. Twp. Comm. of Manalapan, 140 N.J. 

366, 378-79 (1995); see also House of Fire Christian Church v. Zoning Bd. of 

Adjustment of Clifton, 379 N.J. Super. 526, 541-42 (App. Div. 2005). The 

amendment simply must be consistent with the MLUL. Manalapan, 140 N.J. 

at 379.
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Applying these standards, we find no cause to disturb Judge Mendez's 

carefully perpended findings, all of which are well supported by the record. 

We reject plaintiff's contention that the Board made inadequate findings to 

support its conclusions. 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 the request for variances 

on setbacks, fencing, signage, and parking. We agree with Judge Mendez's 

conclusion that the Board appropriately contemplated the impact the project

would have on the neighboring properties and the zone. 

As for the waiver of the traffic study, the court correctly noted that it was 

within the Board's discretion to determine if it needed a traffic study and 

reasonably found that the Board acted within its discretion when it determined 

that a written study was not necessary when the 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 Mendez's findings as to the ordinances. 

Judge Mendez acted within his discretion in finding plaintiff's challenge to 

Ordinance No. 02-2018 to be time barred by Rule 4:69-6 and in rejecting 
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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. 02-2018 

did not constitute impermissible spot zoning was supported by credible evidence 

in the record regarding its impact on approximately forty-two other properties 

and the prior erroneous setting of the boundary line. See Riva Ltd. Liab. Co. v. 

Twp. 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 by facilitating redevelopment of dilapidated properties and reducing the 

number of variances requested also is supported by the record 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 variance").

All of Judge Mendez's findings 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 Mendez in his well-reasoned and thorough written opinion. 

Affirmed.