TWO DAUGHTERS, LLC VS. HARBOUR BAY, LLC (L-0990-18, ATLANTIC COUNTY…

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        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).
            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.




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