Seaside Civil Suit

Appendix CIVIL CASE INFORMATION STATEMENT if information above the black bar is not completed or attorney?s signature is not affixed FOR OFFICE ONLY PAYMENT TYPE: EICK EICG DOA (C I S) NO. Use for initial Law Division Civil Part pleadings (not motions) under Rule 4:5-1 Pleading will be rejected for filing, under Rule OVERPAYMENT: BATCH NUMBER: ATTORNEYIPRO SE NAME Edward Liston Jr, Esq. 256911969 TELEPHONE NUMBER..- . A COUNTY OF VENUE i FIRM NAME (If applicable) Edward Liston Jr., LLC 9?36?? OFFICE ADDRESS PD. Box 1056 207 Hooper Ave. . Toms River, NJ 08754 UL i Complaint in Lieu Prerogative Writs .- Anne: JURY DEMAND ENO NAME OF PARTY John Doe, Plaintiff) 03. Boulevard Properties, LLC, SUPERIOR CT, OCEAN 0.8. Boulevard Properties. LLC vs Borough of Seaside Heights Piaintiif Planning Board, saddy Family, LLC and 2-4-6-8 Boulevard, LLC CASE TYPE NUMBER HURRICANE SANDY (See reverse Side for listing) IS THIS A PROFESSIONAL MALPRACTICE YES [a NO 701 YES ?0 IF YOU HAVE CHECKED SEE N.J.S.A. A AND APPLICABLE CASE LAW REGARDING YOUR OBLIGATION TO FILE AN AFFIDAVIT OF MERIT. RELATED CASES IF YES, LIST DOCKET NUMBERS El YES No DO YOUANTICIPATE ADDING ANY PARTIES (arising out of same transaction or occurrence)? YES NO NAME OF PRIMARY INSURANCE COMPANY (if known) THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE. CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION El NONE El UNKNOWN DO PARTIES HAVE A CURRENT, PAST OR RECURRENT CI YES NO IF YESI IS THAT RELATIONSHIP: EMPLOYERIEMPLOVEE El FAMILIAL BUSINESS OTHER (explain) DOES THE STATUTE GOVERNING THIS CASE PROVIDE FOR PAYMENT OF FEES BY THE LOSING YES No- ACCELERATED DISPOSITION USE THIS SPACE TO ALERT THE COURT TO ANY SPECIAL CASE CHARACTERISTICS THAT MAY WARRANT INDIVIDUAL MANAGEMENT OR It: DO YOU OR YOUR CLIENT NEED ANY DISABILITY IF YES, PLEASE IDENTIFY THE REQUESTED ACCOMMODATION YES NO WILL AN INTERPRETER BE IF YES, FOR WHAT YES No redacted from all documen ccorda ce with Rule I [certify that confidential PBWII filers-hank remake?! from documents now submitted to the court, and Will be i ubmitted gthe f9 - Effective 08-19-2013. CN 10517-Engiish page 1 of 2 CIVIL CASE INFORMATION STATEMENT (CIS) Use for initial pleadings (not motions) under Rule 4:5?1 CASE TYPES (Choose one and enter number of case type in appropriate space on the reverse side.) Track I - 150 days' discovery 151 NAME CHANGE 175 FORFEITURE 302 TENANCY 399 REAL PROPERTY (other than Tenancy, Contract, Condemnation, Complex Commercial or Construction) 502 BOOK ACCOUNT (debt collection matters only) . 505 OTHER INSURANCE CLAIM (including declaratory judgment actions) 506 PIP COVERAGE 510 UM or UIM CLAIM (coverage issues only) 511 ACTION ON NEGOTIABLE INSTRUMENT 512 LEMON LAW 801 SUMMARY ACTION 802 OPEN PUBLIC RECORDS ACT (summary action) 999 OTHER (brie?y describe nature of action) Track II - 300 days' discovery 305 CONSTRUCTION 509 EMPLOYMENT (other than CEPA or LAD) 599 CONTRACTICOMMERCIAL 603M AUTO NEGLIGENCE PERSONAL (non-verbal threshold) 603Y AUTO NEGLIGENCE PERSONAL INJURY (verbal threshold) 605 PERSONAL INJURY - 610 AUTO NEGLIGENCE PROPERTY DAMAGE 621 UM or UIM CLAIM (includes bodily injury) 699 TORT OTHER Track - 450 days' discovery 005 CIVIL RIGHTS 301 CONDEMNATION 602 ASSAULT AND BATTERY 604 MEDICAL MALPRACTICE 606 PRODUCT LIABILITY 607 PROFESSIONAL MALPRACTICE 608 TOXICTORT 609 DEFAMATION - 616 WHISTLEBLOWERICONSCIENTIOUS EMPLOYEE PROTECTION ACT (CEPA) CASES 617 CONDEMNATION 618 LAW AGAINST DISCRIMINATION (LAD) CASES Track Active Case Management by Individual Judge I 450 days' discovery 156 ENVIRONMENTAUENVIRONMENTAL COVERAGE LITIGATION 303 MT. LAUREL 508 COMPLEX COMMERCIAL 513 COMPLEX CONSTRUCTION 514 INSURANCE FRAUD 620 FALSE CLAIMS ACT 701 ACTIONS IN LIEU OF PREROGATIVE WRITS Multicounty Litigation (Track IV) 266 HORMONE REPLACEMENT THERAPY (HRT) 288 PRUDENTIAL TORT LITIGATION 271 289 274 RISPERDAUSEROQUEUZYPREXA 290 POMPTON LAKES ENVIRONMENTAL LITIGATION 278 ZOMETNAREDIA - 291 PELVIC MESHIGYNECARE 279 GADOLINIUM 292 PELVIC 281 BRISTOL-MYERS SQUIBB ENVIRONMENTAL 293 DEPUY ASR HIP IMPLANT LITIGATION 282 FOSAMAX 295 ALLODERM REGENERATIVE TISSUE MATRIX 284 NUVARING 296 REJUVENATEIABG MODULAR HIP STEM COMPONENTS 285 TRIDENT HIP IMPLANTS 297 MIRENA CONTRACEPTIVE DEVICE 286 LEVAQUIN 601 ASBESTOS 287 623 PROPECIA If you believe this case requires a track other than that provided aboveI please indicate the reason on Side 1, in the space under "Case Characteristics. Please check off each appiicable category Putative Class Action Title 59 Effective 08-19-2013, CN ?iO517-English page 2 of 2 {In rt?- E'u WARD F. LISTON, JR., in: A New jersey Limited Liability Company Attorneys at Law - P.O. Box 1056 207 Hooper Avenue Toms River,- Newl Jersey 08754-1056 (732) 244-5 900 Please Reply to: EDWARD F. LISTON, JR. FAX {732) 505?8948 I P.O. Box 1056 Rule 1:40 Qualified Mediator Toms River, NJ 08754-1056 E?mail: edward. list0:7@verizon. net Website: listonlew. com Clerk, Law Division Superior Court of New Jersey Ocean County PO. Box 2191 Toms River, NJ 08754-2191 JUL ?2 2014 Fli?l??l'?c'tales-H smear ,1 r_ RE: C.S. Properties, LLC vs Borough of Seaside Heights Planning Board, Saddy Family, LLC and 2-4-6-8 Boulevard, LLC Dear Sir or Madam: Enclosed please ?nd an original and two (2) copies of the following: Notice of Motion (X Complaint Brief Answer Counterclaim CIS Order Answer and Counterclaim Judgment Stipulation of Dismissal with Prejudice Certi?cation - Af?davit Check in the amount of Acknowledgment of Service Warrant for Satisfaction Proof of Mailing of Judgment - Mortgage (X) Self Addressed Envelop Release Other: CIS Stipulation Extending Request to Enter Default Time to Answer Answer to Counterclaim Would you please ?le and return a copy marked Please charge my account #61045 for the ?ling fee. EDWARD F. LISTON, JR. Enclosures - EDWARD F. LISTON, JR, LLC Edward F. Liston, Jr., Esquire ID No. 25691-1969 207 Hooper Avenue PO. Box 1056 Seaside Heights, NJ 08754 (732) 244-5900 Attorneys for Plaintiff tutu: g? ?FE?hi: Bimini . my JUL -2 20M - amm- CT., OCEAN C.S. BOULEVARD PROPERTIES, LLC a limited liability company of the State of New Jersey Plaintiff, VS. THE BOROUGH OF SEASIDE HEIGHTS PLANNING BOARD SADDY FAMILY, LLC and 2-4-6-8 BOULEVARD, LLC Defendants SUPERIOR COURT OF NEW JERSEY LAW DIVISION: OCEAN COUNTY DOCKET NO. PW Civil Action COMPLAINT IN LIEU OF PRERO GATIVE WRITS Plaintiff, C. S. Boulevard Properties, LLC, whose address is 853 Brown Court, Seaside Heights, New Jersey, complaining of Defendants, says: FIRST COUNT 1. Plaintiff is the-owner of property located on the Boulevard in Seaside Heights, New Jersey within two hundred (200?) feet of the property owned by Defendants, Saddy Family, LLC and 2-4-6-8 Boulevard, LLC. By reason of Plaintiff owning property within tiyo hundred (200?) feet of the said Defendants? property, Plaintiff is an interested party within the meaning of the Municipal Land Use Law. 2. Defendants, Saddy Family, LLC and 246 8 Boulevard, LLC, are the owners of property located at the southeast corner of Hamilton Avenue and Boulevard in the Borough of Seaside Heights, County of Ocean and State of New Jersey, which premises are 'known as Block 4.01, Lots the Borough of Seaside Heights. Defendant, Borough of Seaside Heights Planning Board, is the duly constituted Planning Board-for the Borough of SeasidelHeights, County of Ocean and State of New Jersey created by ordinance pursuant to the provisions of e1 By written application Defendants, Saddy Family, LLC and 2?4-6-8 Boulevard, LLC, applied to the Seaside Heights Planning Board for Preliminary and Final Maj or Site Plan Approval with Waivers pursuant to the applicable portions of the Land Use Development Regulations of the Borough of Seaside Heights to construction a bar, restaurant and lounge consisting of an addition and expansion of the existing building with appurtenant facilities on the subject property described in Paragraph 2 above. Defendants Application was referred to Defendant, Seaside Heights Planning Board for public hearing, which public hearings were heard thereon on April 23, 2014 and May 27, 2014. I By Resolution adopted by Defendant Seaside Heights Planning. Board on May 27, 2014, which was published in the Asbury Park Press on June 6, 2014, a copy of which is an- nexed-hereto and designated as ?Exhibit Defendant, Seaside Heights Planning Board, granted to Defendants, Saddy Family, LLC and 2?4-6-8 Boulevard, LLC, the. Preliminary and Final Maj or Site Plan approval with Waivers requested by them to permit the construction of the bar, restaurant and lounge referred to above on their property located at 302 Boulevard Seaside Heights, New Jersey. 2 7. The actions of Defendant, Seaside Heights Board of Adjustment, in granting the Preliminary and Final Maj or Site Plan Approval with Waivers Application of Defendants, Saddy Family, LLC and 2?4?6-8 Boulevard, LLC, referred to above, were arbitrary, capricious, unreasonable, oppressive, unlawful and against the great weight of the evidence presented to Defendant, Seaside Heights Planning Board at the hearings held by it on said application. WHEREFORE, Plaintiff demands judgment against Defendants as follows: A. Reversing the approval of the Preliminary and Final Site Plan Approval with Waivers sought by Defendants, Saddy Family, LLC and 2-4-6-8 Boulevard, LLC, to permit the construction. of a bar, restaurant and lounge addition to the existing building located at 302 Boulevard, Seaside Heights, New Jersey. I Declaring the Resolution of May 27, 2014 (?Exhibit to be null and void and setting aside said Resolution and the Preliminary and Final Site Plan Approval which it purported to grant to Defendants, Saddy Family, LLC and 2-4-6-8 Boulevard, LLC. Ordering and directing Defendant, Seaside Heights Planning Board to deny the Preliminary and Final Major Site Plan with Waivers application of Defendants, Saddy Family, LLC and 2-4?6-8 Boulevard, or Declaring the Preliminary and Final Major Site Plan with Waivers application of. Defendants, Saddy Family, LLC and 2-4-6-8 Boulevard, LLC, to be denied; Awarding costs of this action; and 3 F. For such other relief as the Court may deem just and equitable. EDWARD F. LISTON, JR., LLC Attorney 1 tiff EDWARD F. LISTON, JR., ESQ. DATED: July 1, 2014 DESIGNATION OF TRIAL COUNSEL Pursuant to Rule 4:25-4, EDWARD F. LISTON, JR., is hereby designated as trial counsel for Plaintiff, C. S. Boulevard Properties, LLC, in the above matter. CERTIFICATION Pursuant to Rule 4:5-1, it is hereby certi?ed that to the best of my knowledge, there are no other civil actions or arbitration proceedings involving this matter and no other parties need to be joined at this time. CERTIFICATION PURSUANT TO R. 4:69-4 Pursuant to Rule 4:69?4, it is hereby certi?ed that to the best of my knowledge, all audio tapes of the hearings before the Planning Board needed to prepare the necessary transcripts of the local agency prOceedings in this cause have been ordered. EDWARD F. LISTON, JR., ESQUIRE DATED: July 1, 2014 Exhibit A neg 14:1 Bl.4.01 Lot 66 - 308 Boulevard Saddy FamilyTrust,LLC 4/23/2014 RECEIVE: 1' 32 r? Slaw-?H (1 ., - . RESOLUTION NO. .14- 10 seasons, HEIGHTS LAND Use BOARD WEREAS, SADDY LLC and LLC, whose mailing address is 709 Woddchuck Lane, Toms River, New Jersey, 0875 8, have applied for Preliminary and Final Site'Plan with variances affecting premises located on Lots 66 and 51 in Block 4.01, as designated on the Of?cial Tax Map of Seaside. Heights, commonly known as 302 Boulevard, Seaside Heights, New Jersey; and - WHEREAS, such proof of service as may be required by New Jersey Statutory and Municipal Ordinance requirements upon appropriate property owners and governmental. bodies has been furnished; and WHEREAS, a public hearing was held on the said application on April 23, 2014 in the Municipal Building of Seaside Heights and testiinony and exhibits were presented on behalf of the applicant and all interested parties having been heard; and I the said Board, having considered said application, testimony, exhibits Submitted, and ?'om its inspection of the site, it makes the following determinations: l. I The applicant was represented by Richard D. Stanzione, Esq. 2. John Saddy and the applicant?s engineer/planner testi?ed in support of'the application. The area of development has an area of approximately 20,000 square feet. 3. The area of development is in the Retail Business (RB) Zone. 4. The applicant seeks Preliminary and Final Major Site Plan Approval associated with additions to and expansion of the existing Merge bar/restaurant building including new outdoor seating areas. 1 no.2395 PQGE 31/14 85/384/2614 14:17 7327933an CLERKS PAGE 82214 (I 5. CS. Boulevard Properties, Inc, a propel-t}r cum-er within 200 feet appeared in I, opposition to the application. Edward F. Liston, Jr., Esq, appeared on behalf of the objector. 6. The applicant?s principal, John Saddy, testi?ed as follows, to wit: A. He Will be the general manager of the operation. B. I The land is owned by the co-applicant, Robert Bennett of 2-4-6-8 Boulevard, LLC and Saddy Family, LLC. The liquor license is owned by Temptations, LLC. - C. He has an agreement to have the restaurant within the existing operated by the operators of the former Diamond?s Restaurant, which waslooated at the Surf Club in Ortley Beach, before it was destroyed by Hurricane Sandy- D. The three bars along the Boulevard in the existing building will be combined into one front bar. Along the patio, the applicant proposes to have an outdoor bar. He intends to have separate bathroom facilities for private parties. E. The applicant intends to also have comedy club events and mystery theatre events, in addition. to dining. F. The applicant wishes to expand the existing kitchen by three to four times the size, but due to time constraints will utilize the existing kitchen for 2014.. G. The applicant proposes backlighted signs and neon. signs siinilar to existing establishments in the area H. The applicant will utilize a recycling company and reduced size dumpsters to recycle all recyclable materials. The applicant will. have suf?cient?space for these dumpsters. l. The applicant will utilize the Borough? trash collection: 2 RECEIVE: No.2895 B?338f2514 14:17 7327ssafeas CLERKS .T. The applicant anticipates two liquor deliveries per week, but will have daily bread deliveries during the iK. MI. Saddy testi?ed about his intention to construct future phases of the project. L. The applicant is prepared to add benches and shade trees consistent with the streetsoape along the Beulevard. M. The applicant will maintain the existing gravel parking lot, likely to be utilized via self and valet parking. - N. Mr. Saddy testi?ed that the facility will function principally as a restaurant during the home of operation. I 0. Upon cross-examination; Mr. Saddy testi?ed that phase one will constitute an expansion of the existing building by appro?mately 30 feet to the north. P. Mr. Saddy testi?ed that he will. have Diamond?s Restaurant offer a limited menu for restaurant purposes: He classi?ed it as a .bar and restaurant, not as a The tables are designed to slide underneath a stage, so the dining area can be converted into a dance floor. The trash area is lecated adjacent to a residence to the east, the same as has been. existing for 30 years and as was purchased by the current owner next to a Q. Edward Angstet, P.E., P.P., L. S., R.A., testi?ed in support of the application. He testi?ed regarding the cantilever roof (overhang) and the sliding patio- roof. R. . The applicant proposes a front yard setback on the Boulevard of 1/101h of a foot, where 10 feet is required. The applicant also proposes a 1/10?1? of a foot setback 3 no.2395 PAGE 63/14 14:1? 73273938998 CLERKS PAGE 341?14 .. l. on the Franklin Avenue side, with a 42? glass wall or railing, with pull down canvas sides, and the rolling patio roof. I i S. The Applicant agreed to a condition that approval will be subject to a grant of an additional sewer lateral from the borough, as required. An additional transfonner will be required for the building expansion, and the applicant agrees to comply with approvals from the borough. electrical department with. regard to the transformer looation, which. shall be re?ected as a note on the plans. The kitchen will be expanded into the current gravel parking area. T. New HVAC units are proposed to be located on the ?at roof, and will be restricted to NIDEP standards of 50 Db standards and, if necessary, the applicant will construct a knee wall for. sound deadening purposes as well. as aesthetics. I I U. The applicant proposes two trench drains of approximately 100 feet long each, 18 inches wide and 2 feet deep. The existing site is almost 100% impervious, so the applicant will be improving storm water management and prevent adverSe effects on adjacent properties. V. The applicant agreed to comply with the Technical Revisions and/or Corrections section in the review letter of the board engineer, dated April. 2.1., 2014. w. Upon cross-examination, Mr. Angster testi?ed that the building is currently set back 10 feet from the property line along the Boulevard, presently complying with the Borough?s set back requirements. The applicant is proposing to have eSSentially a zero setback from the property line, leaving eight feet of area for sidewalk to the curb. The board?s engineer clari?ed the phasing of the project: Phase 1 will 4 RECEIVE: N052895 83/36f2614 14:17? . 7327936998 CLERKS RECEIVE: include I the existing second ?oor on the existing building. The glass wall along the Boulevard will also be installed as part of Phase 1. The curb out will be eliminated on the Boulevard and access to the gravel lot will be accessed from the curb cut on Hamilton Ave; The phasing plans should be addressed on the architectural plans and the applicant agreed. Y. Vincent J. Craparotta; Jr., a property owner within 200 feet, testi?ed in opposition to the application. He also owns the property where Hemingway?s is located. The liquor license for Heminingway?s is owned by his wife. The area in from of Hemingway?s is 17 feet to the curb, with. a 5 foot fenced in area, leaving 12 feet from the fencing to the curb. .Z. The Objector introduced Exhibit 0-1. Mr. Craparotta testi?ed that the proposed sidewalk size in front of proposed site will. be reduced to 7 feet, and that part of - that area is occupied by benches and trees, making the area insuf?cient for pedestrian access, in Mt. Craparotta?s opinion. AA. The Objector also introduced Exhibit 0?2 containing photos of the front yard setbacks in front of various including Merge, the Pool Club, Savor/Karma and the Bamboo Bar. Mr. Craparotta testified that the applicant plans to build out into the front yard setback with approximately 10 feet of pavers which were installed by the Borough, Craparotta. testi?ed that the reason the Borough had increased the size of the sidewalks during the prior Boulevard renovations was for pedestrian safety. He testi?ed that by allowing encroachment into this area, pedestrian safety Would be reduced. BB. The Obj ector introduced Exhibit 0-3 which were various phtitographs of 5 no.2895 '06/30/2014/non 35/14 14:1? ?32?938{9?8 CLERKS PAGE 36(14 (H I (.. side yard setbacks at various bars including the Bamboo Bar, Hemmingway?s, Savor, The Pool Club and the subject property. CC. The Obj ector introduced Exhibit 0-4 which. contained photographs of the roofs of various liquor license establishments shouting I-IVAC units and other utilities on such. clubs as the Bamboo Bar, Merge, Hemmingway?s, Savor and others. DD. Mr. Craparotta testified ?nal the Bamboo Bar. and Savor have 40 feet of parking lots as buffers between their HVAC units on the roof and. the neighbming properties. In contrast, the applicant has existing HVAC units on a ?at roof within4 feet of a residential property, which is owned by. the objector. - I BE. The Obj ector introduced Exhibit 0-5 which was a marked up. site plan of the applicant?s property. - Mr. Craparotta testi?ed that he believed the applicant is actuallyr expanding the into a residential area. He also testi?ed that the architectural plans submitted by the applicant are vague and he would expect the applicant to have more detail if the applicant actually planned to _open the establishment this summer. I Fi?; Upon cross examination, MI. Craparotta admitted that he would still. be objecting to the project even if the railings along the Boulevard were moved back 12 feet from. the curb line. GG. Upon further cross examination, MI. Craparotta agreed that he would be satis?ed if the applicant would move the new HVAC systems to the center of the project, with a redesigned ?at roof in the center, M111 a barrel roof in the front and rear. The applicant thereafter agreed to modi?r the plans. I EH, Mr. Craparotta. testi?ed that he believes the side yard setbacks need to be 6 RECEIVE: A No.2895 B?f38f2814 14217 7327933593 CLERKS . . PAGE 37/feet in Order to have adequate ?re exists especially with a 30? or 36? doors. Ii. The Board engaged in an interactive dialogue with the applicant and suggested the applicant make revisiting? to the plans. As a result thereof, the applicant agreed to construct a front yard setback to the railings and building facade in accordance with the setback at I?Iemingway?s from the curb to the railing and building facades of the pn'vate establishment area. The applicant also agreed to construct a knee wall to screen the existing HVAV/compressor units on the ?at roof of the existing building for screening from the Obj ector?s property to the east. The applicant finthet agreed to move the new HVAC units for. the existing building to?the center on a flat roof, between a front and rear barrel roof on the existing building. The applicant also agree to locate the new HVAC system units and compressor units, for the building expansion 32? to the north, on the flat roof over the expanded kitchen/bathroom area adjacent to the applicants property to the east and install a knee wall to screen the new units on the building expansion to the I north. H, In addition, to address concerns about whether or not the applicant would construct alfacility that complied with the provisions of the RB Zone, and was not a the applicant agreed to add a pemianent dining room of approximately 32 feet in length to the north of the existing building, and to amend the site plan application accordingly. In addition, the applioant agreed to move the proposed bar that was intended to be part of the ?outside enclosure? to die north as part of Phase 2. The ?outside enclosure? will now be enclosed into a permanent dining area. and the current kitchen willbe expanded. 7 RECEIVE: 160.2395 85338/2814 14:17 73279381998 CLERKS . PAGE 88/14 l, . K. The Board directed that the Board Engineer verify the front and side yard Setbacks for railings and building facade and that?any approval provided that the setbacks for front and side yards must be the same as other businesses along the Boulevard, in particular I-Iemmingway?s. The applicant ?irther agreed to comply with all Health Department conditions. LL. Robert J. Bennett, principal of 2443-3 Bomevard, LLC, testi?ed that he thought that the Objeetor' bought the residential property to the east of the application speci?cally to object the project just like he has purchased other properties near the applicant?s businesses in order to obj cot. . I MM. The applicant agreed to add a refuse enclosure on the east side of the property a minimum of 32? distant from the Objector?s property line and the applicant Will return to the Board, if necessary, for site plan amendment but the applicant wishes to still maintain. the south refuse area for loading and unloading. NN. . The applicant had previously constructed a billboard on telephone pole size pilings facing to the north. The Board. agreed to allow the-applicant 120 days to either seek Board approval for the continued use of the pilings as part of another permitted use or to remove them. I 00. The applicant agreed to provide revised plans to comply with all of the foregoing set forth above. 7.. The following person(s) appeared to question the applicant and-make statements with regard to the proposal: None, other than as detailed above. 8. The Board reviewed the following evidence, to A. - The application. 8 RECEIVE: - nolzass ?as/sa/2a14 14:17 RECEIVE: 73279385033 CLERKS . PQGE .J l. B. ?"Site Plan, Lot 66 and Westerly 100 FT Let Block 4.01, Seaside Heights, Ocean Ceunty, New Jersey?. The drawings, consisting of two (2) sheets, have been prepared by Edward F. Angster, NJPE #13450. The drawings are dated April 8, 2014 with no revision dates indicated. C. ?Survey of Property, Lot 66, Block 4.01, Seaside Heights, Ocean County, New Jersey?. The drawing, consisting of one (1) sheet has been. prepared by Edward F. Angster, #13450. The drawing is dated December 10, 2013 with no reddish dates indicated D. ?Survey of Property, Lot 51, Block 4.01, Seaside Heights, Ocean County, New Jersey?. The drawing, consisting of one (1) sheet has been prepared by Edward F. Angster, #13450. The drawing is dated April 24, 2012 with 110 revision dates indicated. I E. ?Proposed Plans for Temptations, Block 4.01 and Lots 66 and. Sl, 302 Boulevard, Borough of Seaside Heights, Ocean County, New Jersey?. The drawings, consisting of three (3) sheets, has been prepared lay Edward. F. Angster, #06316. The drawings are dated April 8, 2014 with no revision. dates indicated. F. COpy of application. to Ocean County Planning Board. 9; The Board makes the following ?ndings,'to wit: A. This application does not require a use variance pursuant to N.J.S.A. . 40:55D?70d as bars and taverns are permitted uses in the RB Zone provided the same are incidental to a restaurant use and the applicant af?nnatively testi?ed that he will operate the site as a restaurant and agreed, at the suggestion of the Board, to add a permanent dining area, which. will contain. tables and chairs con?gured in a way to typically 9 no.2395 RECEIVE: 14:1f 'f327938938 PAGE . . (I I I. represent a dining room, and which tables and chairs will not be for the purpose of dancing or type entertainment. B. The application requires the following bulk variance for a rear yard setback where 3 feet is required and 2.0 feet are existing and proposed. Borough Code Section I C. The application requires a bulk variance from the front yard setback requirements were 10 feet is required, where 9.6 feet is existing from the Boulevard. and less than 10 feet'is proposed along liamilton Avenue, Franklin Avenue and along the Boulevard. Borough Code Section D. This application regains 1a design. waiver for off-street parking, Borough Code Section Where retail business uecs shall supply parking at one parking space for 500 square feet of gross ?oor area, and where the applicant proposes no fonnal paved and striped off-street parking. E. The purposes of. the Municipal Land Use Law would be advanced by the deviation from the zoning ordinance requirements for the approval of the variance. The variance can be granted. without substantial detriment to the public good, the bene?ts of the deviation will substantially outweigh any detriment and the reliance will not Substantially impair the intent and purposes of the zoning plan and zoning ordinance of the Borough of Seaside Heights. . F. The Board ?nds that the applicant has compromised with applicant?s neighbors by agreeing to construct a knee wall to screen the existing HVAWcornpressor units 011 the ?at roof of the existing building for. screening from the Obj ector?s pJ?Operty to the east. The applicant further agreed to move the new HVAC units for the existing lo no.2895 15/14 38/2814 14:1? 732793Ei?3518 CLERKS PAGE 1 1X14 . . building to the center on a ?at roof, between a ?oat and rear barrel roof on the existing building. The applicant also agree to locate the new HVAC system units and compressor units, for the building expansion 32? to the north on the ?at roof over the expanded kitchen/bathroom area adjacent to the applicants property to the east and install a knee wall to screen the new units on the building expansion to the north. . The applicant also agreed to use reduced sized recycling refuge containers, by complying with Health Department conditions, by adding a refuge enclosnre on the cast I side a minimum of 32" distant from. the Obj ector?s properly line,- by maintaining but limiting the south. refuge area for loading and unloading of products and supplies, by- adding a pennanent dining room and by adjusting the setbacks from its original plans. G. The Board ?nds that the relief requested is not of such a magnitude as to be a detriment to the public good nor an. impairment ofthe intent and purpose ofthe zone plan. . 1-1. The bulk variances referred to above can be granted without substantial detriment to the public good because the same are consistent, as amended. with existing setbacks along the Boulevard for similar businesses in. the surrounding area. I. The design waiver for parking can be granted because the Board. ?nds that the current metered spaces on public streets in the area as well as the availability of street private parking lots adequately supports the need for public parking. The site previously operated as a without o?-street parking and several surrounding in the RB Zena likewise successfully operate and patrons without o?-street parking. J. With regard to the previously~constructed billboard on telephone pole size 11- RECEIVE: no.2395 85/35f2814 14:17 CLERKS PAGE l. pilings facing to the north, the applicant shall have 120 days from. the date of adoption of this resolution to either seekiBoard approval for the continued use of the pilings as part of another permitted use or to remove them. Now, THEREFORE, BE IT RESOLVED, by this Board, based on the ?ndings herein abOVe stated, it does hereby grant the application subject to the following conditions: A. Applicant should obtain any other approvals with. respect to the submission from - any other Federal, County, State or Municipal Agency having jurisdiction. over same, including approvals, if any, for the glass wall. as may be required by virtue of its location adjacent to a state . highway and county roadway. I B. Applicant should re-submit this entire proposal should there be any deviation from this Resolution 01' the submitted documents, which. are hereby made a part hereof and shall be binding on the applicant. C. Applicant shall construct at applicant?s sole cost and expense all improvements. re?ected on the submitted documents. D. The relief granted hereunder shall he rendered null and void should the applicant fail to commence cons?rruction'within 1 year of the date of this Resolution. E. The applicant shall comply with all representations and agreements made by the applicant or the applicant?s representative during the consideration of this application. F. The applicant shall. comply With all of the Engineer?s conditions as set forth in the I Engineer?s memo dated April 21, 2014 in the ?Technical Revisions and/or Corrections? section. G. The applicant shall redesign the project in accordance with the agreements reached with the Board at the public hearing, including but not limited to, redesigned front and side yard setbacks, construct a knee wall to screen the existing WAY/compressor units'on the 12 RECEIVE: No.2895 86338:" 2814 14:17 ?327935?-??3 I K, PAGE 13/14 .. l. ?at roof of the existing building for screening from the Objeetor?s property to the east. The applicant shall further move the new HVAC units for the existing building to the. center on a ?at roof, betvveen a front and rear barrel roof on the" existing building. The applicant shall locate the new HVAC system units and compressor units, for the building expansion 32? to the north, on . the flat roof over the expanded kitchen/bathroom area adjacent to the applicants property to die east and install a knee wall to Screen the new units on the building expansion to the north. to prevent noise from in?ltrating away from the site, construction of an area dedicated as a permanent dining room, modi?cation of refuge containers a minimum of 32? distant from the Objector?s property line and modi?cation of the loading zones as agreed to by the Planning Board. A. material and non-waivable condition of this approval is that the application shall submit revised plans, subject to review? and approval by the" Board Ehgineer, con?rming the revisions and modi?cations agreed to during the public hearing. H, The applicant shall add a permanent dining roorn of approximately 32 feet in length to the north of the existing building, and submit revised plans clearly depicting this dining room. I. The ?South Re?ise Area? shall no longer be used for storage of refuse but may be used for loading and unloading of products and supplies needed to' operate the facility. The applicant shall submit revised plans accordingly. 13 RECEIVE: 160.2895 I egxaexzala 14:17 '3 9?2 . ("2753?! 8 A CLERKS :3er 14,314 who ?Resolution 14-10 - -Bl. 4.01 Lot 66 - 308 Boulevard - Saddy Family Trust?LLC Moved by: John Camera Seconded by: Harry Smith ROLL CALL VOTE Those in Favor: John Camera; Bob Browex; Harry Smith; . Art Ascoli; Mayor Bill Akers. Those Opposed: John Martinez. Those Absent: Frank C. German; Frank German; Lou DiGuilio. Those Not Voting: Steve Sanzone (con?ict of interest); Peter Jarkezian (arrived too late to vote). - I hereby certify that this is a true and accurate copy of the aforesaid?Resolution memorialized by the Seaside Heights Planning Board on May 28, 2014. Dated: 9i j?am ANN STABILE, Secretary RECEIVE: Oowvz OOGWH OOMWZ OOdNHmOdmw EH omqmp ZOHHDM DOGWH 20. ?quv DOGWH mOde muwo w: I muwo m3 ume? ma?a om? may? . mm? vs nm mwommwaHmm 4m mowodnm ow mwvaum monmma? 002 -ooymmo pp HEW wWOdw OWmm me van? m. Hm ?mo U?wm de mm OW w? HEM QGUDW 52d dem MWOZ HEM OW mo WWO: mm?dHOm 02 HEN wmeH. . HEM Hm" EOE GHZOHZH Q. Hw ?od 52M ooN WHU Aqwmv HRH mqu. . Hw %Od wm?Hmdm HHVH Hm?n? Hm NOS Ede wam OW GOOU Obdmm we Ume 0% 8mm WHEHZO OM MEMWUHZQ- EGMH 0w MONK OZ meHHmm HZ meHoz um . moq moommw ram . we wow Homm 803m 2Q omumu Qd?zmm Appendix - FOR USE BY OFFICE ONLY PAYMENT TYPE: DCK DOG DOA I (CIS) I NO. Use for initial Law Division' Civil Part pleadings (not motions) under Rule 4:5-1 Pleading will be rejected for ?ling, under OVERPAYMENT: if information above the black bar is not completed or attorney?s signature is not affixed BATCH NUMBER: PRO SE NAME TELEPHONE NUMBER COUNTY OF VENUE Guy P. Ryan, Esq. (732) 341-7300 Ocean - .) FIRM NAME (if applicable) DOCKET NUMBER (when available) Law Offices of Guy P. Ryan LLC OFFICE ADDRESS DOCUMENT TYPE 248 F1. Washington Street Answer to Complaint Toms River, NJ 08753 . I JURY DEMAND YES No NAME OF PARTY John Doe, Plaintiff) CAPTION Borough of Seaside Heights C.S. Boulevard Properties, LLC v. Borough of Seaside Heights, et. al. Planning Board CASE TYPE NUMBER HURRICANE SANDY - (See reverse side for listing) . IS THIS A PROFESSIONAL MALPRACTECE YES YOU I-IAVE CHECKED SEE N.J.S.A. A -27 AND APPLICABLE CASE LAW REGARDING YOUR OBLIGATION TO FILE AN AFFIDAVIT OF MERIT. RELATED CASES IF YES, LIST DOCKET NUMBERS El YES El No DO YOU ANTICIPATE ADDING ANY PARTIES NAME OF PRIMARY INSURANCE COMPANY (if known) (arising out of same transaction or occurrence)? [31 NONE YES NC El UNKNOWN THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE. I CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION DO PARTIES HAVE A CURRENT. PAST OR IF YES. IS THAT RELATIONSHIP: RECURRENT El EMPLOYERIEMPLOYEE FRIENDINEIGH BOR El OTHER (explain) YES No FAMILIAL El BUSINESS DOES THE STATUTE GOVERNING THIS CASE PROVIDE FOR PAYMENT OF FEES BY THE USE THIS SPACE TO ALERT THE COURT TO ANY SPECIAL CASE CHARACTERISTICS XOR ACCELERATED DISPOSITION - 4 2.0M I I SUPERIOR CT., OCEAN CO . Do You OR YOUR CLIENT NEED ANY DISABILITY IF YES, PLEASE IDENTIFY THE REQ - YES NO WILL AN INTERPRETER BE IF YES, FOR WHAT YES I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be redacted from all doc the future in accordance with Rule ATTORNEY SIGNATURE: j, x. Effective 08-19?2013, CN 1 517?En lish page 1 of 2 CIVIL CASE INFORMATION STATEMENT (CIS) Use for initial pleadings (not motions) under Ruie 4:5-1 CASE TYPE-S (Choose one and enter number of case type in appropriate space on the reverse side.) Track I - 150 days' discovery 151 NAME CHANGE 125 FORFEITURE 302 TENANCY 399 REAL PROPERTY (other than Tenancy, Contract, Condemnation, Complex Commercial or Construction) 502 BOOK ACCOUNT (debt collection matters only) 505 OTHER CLAIM (including declaratory judgment actions) 506 PIP COVE RAGE 510 UM or UIM CLAIM (coverage issues only) 511 ACTION ON NEGOTIABLE INSTRUMENT ?w 512 LEMON LAW 801 SUMMARY ACTION - 802 OPEN PUBLIC RECORDS ACT (summary action) 999 OTHER (brie?y?describe nature of action) Track II - 300 days' discovery 305 CONSTRUCTION 509 EMPLOYMENT (other than CEPA or LAD) 599 CONTRACTICOMMERCIAL TRANSACTION 603M AUTO NEGLIGENCE PERSONAL INJURY (non-verbal threshold) 603Y AUTO NEGLIGENCE PERSONAL INJURY (verbal threshold) 605 PERSONAL INJURY 610 AUTO NEGLIGENCE PROPERTY DAMAGE 621 UM or UIM CLAIM (includes bodily injury) 699 TORT OTHER Track Ill - 450 days' discovery 005 CEVIL RIGHTS 301 CONDEMNATION 602 BATTERY 604 MEDICAL MALPRACTICE 606 PRODUCT LIABILITY 607 PROFESSIONAL MALPRACTICE 608 TOXIC TORT 609 DEFAMATION 616 CONSCIENTIOUS EMPLOYEE PROTECTION ACT (CEPA) CASES 617 INVERSE CONDEMNATION 618 LAW AGAINST DISCRIMINATION (LAD) CASES . Track IV - Active Case Management by Individual Judge I 450 days' discovery 156 ENVIRONMENTAUENVIRONMENTAL COVERAGE LITIGATION 303 MT. LAUREL 508 COMPLEX COMMERCIAL 513 COMPLEX CONSTRUCTION 514 INSURANCE FRAUD 620 FALSE CLAIMS ACT 701 ACTIONS TN LIEU OF PREROGATIVE WRITS Multicounty Litigation (Track IV) 266 HORMONE REPLACEMENT THERAPY (HRT) 288 PRUDENTIAL TORT LITIGATION 271 ACCUTANEIISOTRETINOIN 289 REC-ELAN 274 RISPERDAUSEROQUEUZYPREXA 29D POMPTON LAKES ENVIRONMENTAL LITIGATION 27"8 ZOMETNAREDIA 291 MESHIGYNECARE 279 GADOLINIUM 292 PELVIC MESHIBARD 281 BRISTOL-MYERS SQUIBB ENVIRONMENTAL 293 DEPUY ASR HIP IMPLANT LITIGATION 282 FOSAMAX 295 ALLODERM REGENERATIVE TISSUE MATRIX 284 NUVARING 296 REJUVENATEIABG lI MODULAR HIP STEM COMPONENTS 285 TRIDENT HIP IMPLANTS 297 MIRENA CONTRACEPTIVE DEVICE - 286 LEVAQUIN 601 ASBESTOS 287 YAZIYASMINIOCELLA 623 PROPECIA If you believe this case requires a track other than that provided above, please indicate the reason on Side 1, in the space under ?Case Characteristics. Please check off each applicable category Putative Class Action Title 59 Effective 08?19-2013, CN 1051?-English page 2 of 2 ME A GUY P. RYAN, ESQ., Attorney 1.1). 028711990 :2 it Add? LAW OFFICES OF GUY P. RYAN, LLC mount $l 248-R Washington Street Toms River, New Jersey 08753 (732) 341-7300 Initials Attorneys for Defendant, Borough of Seaside Heights Planning Board C.S. BOULEVARD PROPERTIES, LLC, A limited liability company of the State of SUPERIOR COURT OF NEW JERSEY LAW DIVISION: OCEAN COUNTY New Jersey Plaintiff(s), DOCKET NO.: OCN-L-1890-14PW V. THE BOROUGH OF SEASIDE HEIGHTS, ANSWER TO COMPLAINT PLANNING SADDY FAMILY, LLC IN LIEU OF PREROGATIVE And 2-4-6-8 BOULEVARD, LLC WRITS Defendants. The defendant, Borough of seaside Heights Planning Board, with principal of?ces at 901 Boulevard, Seaside Heights, New Jersey, by way of answer to the complaint of plaintiff, -C.S. Boulevard Properties, LLC, says: 1. 2. 3. 4. Admitted. Admitted. Admitted. It is admitted that defendant, Saddy Family, LLC and 2-4-6-8 Boulevard, LLC applied to the Seaside Heights Planning Board. That application, together with the plans submitted therewith, speak for themselves. The remainder of the allegations of paragraph 4 are denied. 5. lama RECEIVED FILED 1 AUG 4 20a SUPERIOR CT., OCEAN CO. 6. It is admitted that the Seaside Heights Planning Board adopted Resolution No. 14?10 on May 2?7, 2014 and that the same was published in the Asbury Park Press on June 6, 2014. Said Resolution speaks for itself and therefore, the remainder of the allegations inparagraph 6 are denied. 7. Denied. WHEREFORE, Defendant, Seaside Heights Planning Board demands judgment dismissing the complaint together with reasonable attorneys? fees, costs of suit, and for such other and further relief as the Court deems equitable and just. AFFIRMATIVE DEFENSES I l. The complaint fails to state a claim upon which relief can be granted. 2. The action commenced by. plaintiff fails to comply With the provisions of 4:69-1, et. seq. and therefore must be dismissed. 3. The plaintiffs/objector participated in the hearings before the defendant, Planning Board and has waived its right to complain about the approval as the plaintiff, through its owner/agent, indicated its acceptance and rati?cation of modi?cations and accommodations made by the applicant and the Board in order to satisfy the Concems of the plaintiff. 4. The actions of defendant/Board were not arbitrary, capricious and unreasonable. 5. The Board reserves the right to interpose Such 331m and further defenses as may be appropriate or as discovery or proceedings may reveal. - DESIGNATION 0F TRIAL COUNSEL Pursuant to 4:25-4, Guy P. Ryan, Esq. is hereby designated as trial counsel for defendant, Seaside Heights Planning Board in the above captioned matter. CERTIFICATION I hereby certify that a copy of the within Answer to the Complaint was duly served within the time prescribed by the Rules. Pursuant to Rule 4: 5-1 up on belief, and based on information known to the undersigned at the time of the ?ling of this pleading, it appears that there are no other actions or arbitrations' related to this suit which are pending or presently contemplated and it appears that there are no other persons who should be joined as parties. I hereby certify that the within Answer to the Complaint has been ?led with the Clerk of the Superior Court, Law Division, Ocean County, New Jersey and that clear copies have been forwarded to all counsel. 43w . YAN, ESQ. Dated: . July 30, 2014 t/ RECEIVED FILED EDWARD F. LISTON, JR., LLC Edward F. Liston, Esquire ID No. 256911969 I AUG 5 2014 207 Hooper Avenue I P-O- BOX 1056 SUPERIOR CT.. OCEAN 00. Seaside Heights, NJ 08754 (732) 244?5900 Attorneys for Plaintiff C.S. BOULEVARD PROPERTIES, LLC SUPERIOR COURT OF NEW JERSEY a limited liability company of the State of LAW DIVISION: OCEAN COUNTY New Jersey . Plaintiff, DOCKET NO, PW PW - vs. Civil Action THE BOROUGH OF SEASIDE HEIGHTS PLANNING BOARD ACKNOWLEDGEMENT OF SERVICE SADDY FAMILY, LLC and 2-4-6-8 BOULEVARD, LLC Defendants Service of Summons and Complaint in the above captioned matter is hereby acknoiledged on behalf of the Defendant, Borough of Seaside Heights Planning Board, this Q1 day of July, 2014. . GUY P. 2? QUIRE Attorney for fendant, Borough of Seaside Heights anni Board t; I <7 . - Superlim @nnrt at Eden: Eeraag OCEAN COUNTY COURT HOUSE CHAMBERS OF . P.O. BOX 2191 . IUDGE WCENT I. GRASSO TOMS RIVER, NJ 08754-2191 ASSIGNMENT JUDGE (732)-929-2176 August 13,2014 Edward F. Liston, Esq. P.O. Toms River, New Jersey 08754-1056 Guy P. Ryan, Esq. 248 R. Washington Street Toms River, New Jersey 08753 RE: C. S. Boulevard Properties, LLC v. Boro of Seaside Heights Planning Board, et als DOCKET NO. PW Dear Counsel: The above matter is hereby set down for a pretrial management conference on Thursday, September 18, 2014 at 9:00 am. in Courtroom l. Counsel must ?le pretrial memorandum by September 15, 2014. Please ?le an original and copy of the memorandum for the court together with one copy of the factual statement [which should be attached to the pretrial memorandum] for each attorney in the case. The memorandum may not be ?led by facsimile transmission. It must, at minimum, comply with the provisions of B. 4:69-4. However, in an effort to expedite the conference and facilitate the entry of an order, the court requests that the memorandum contains the information applicable to actions pr?etried pursuant to 3. and 51;. 4:25 Counsel for defendants should also bring any applications, exhibits marked in evidence in the proceedings below, resolutions, ordinances and other documents pertinent to the appeal. Plaintiff?s counsel shall bring a complete transcript of the proceedings below, if it is available at the time of the pretrial. If not, it will be required to be produced within a speci?c period after the pretrial. August 13, 2014 Page . If you are aware of any other attorney appearing in this action to Whom a copy of this letter has not been sent, kindly advise him or her as Well as the court as soon as possible. Very truly yours, VJG/bmm C. - C. Hiering, Dupignac, . $11530?me se StanZIone, Dunn Beck, P.C. F1, ?nk Dupignac, h, 6 ATTORNEYSAT LAW Richard D. Stanzione Certi?ed Civil Trial Attorney Lynne A. Dunn Also Admitted in FL PA Rule 1:40 Quail?ed Mediator Michael R. Beck Also Admitted in NY Paige E. Baran Also Admitted in NY Michael R. Stanzione Also Admitted in PA Via Hand Delivery Clerk, Civil Division Superior Court of New Jersey Ocean County 118 Washington Street CN 2191 Toms River, New Jersey 08754 Re: 0.8. Boulevard Properties, LLC v. Borough of Seaside Heights Planning Board, Saddy Family, LLC and 2-4-6-8 Boulevard, LLC Docket No. Dear Sir/Madam: Enclosed please ?nd an original and one (1) copy of the following documents filed on behalf of defendants Saddy Family, LLC and 2-4-6-8 Boulevard, LLC: 1. AnsWer; and 2. Civil Case Information Statement. Kindly file and return a stamped ?filed? copy in the envelope provided for your use. Please charge fee to Account No. 0044175. - If you have any questions with regard to the enclosed, please feel free to contact me. Very truly yours, HIERING, DUPIGNAC, RDS/hnd Enc. cc: Edward F. Liston, Jr., Esquire Guy P. Ryan, Esquire Family, LLC and 2-4-6-8 Boulevard, LLC et als adv. 0.8. Boulevard Properties, ?ling Answer 8: CIS.doc 64 Washington Street, Toms River, NJ 08753 T732.349.1212 0 F732.349.1217 - - Estate Appendix XII-B1. CIVIL. CASE INFORMATION STATEMENT I FOR USE BY OFFICE ONLY 8) PAYMENT TYPE: CK 3 CG CA Use for initiai Law Division CHGICK N0.: Civil Part pleadings (not motions) under Rule 425-1. AMOUNT: Pleading will be rejected for under Rule _1 if information above the black bar is not completed OVERPAYMENTE or attorney's signature is not affixed. BATCH NUMBER: ATTORNEYIPRO SE NAME TELEPHONE NUMBER COUNTY OF VENUE RICHARD D. STANZIONE 732 349-1212 OCEAN FIRM NAME (If applicable) DOCKET NUMBER (when available) HIERING, DUPIGNAC, STANZIONE, DUNN BECK, P.C. OCN-L-1890-14 P.W. m, ?n OFFICE ADDRESS DOCUMENT TYPE - I ANSWER TO COMPLAINT 64 WASHINGTON STREET TOMS RIVER, NEW JERSEY 03753 . JURY DEMAND YES NO NAME OF PARTY (9.9., John Doe. Defendants SADDY FAMILY, LLC and 2?4-6-8 BOULEVARD, LLC CAPTION C.S. BOULEVARD PROPERTIES, LLC V. BOROUGH OF SEASIDE HEIGHTS PLANNING BOARD, SADDY FAMILY, LLC and 2-4-6-8 BOULEVARD, LLC CASE TYPE NUMBER HURRICANE SANDY IS THIS A PROFESSIONAL MALPRACTICE YES [Xi NO 9 (see reverse Side for No IF YOU HAVE CHECKED SEE N.J.S.A. AND APPLICABLE CASE LAW 155 REGARDING YOUR OBLIGATION TO FILE AN AFFIDAVIT OF MERIT. RELATED CASES IF YES. LIST DOCKET NUMBERS YES NO DO YOU ANTICIPATE ADDING ANY PARTIES (arising out of same transaction or occurrence)? EYES THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE. CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION NAME OF PRIMARY INSURANCE COMPANY (if known) NONE UNKNOWN DO PARTIES HAVE CURRENT, PAST OR RECURRENT YES I: NO El FAMILIAL IF YES, IS THAT RELATIONSHIP EMPLOYER-EMPLOYEE OTHER (explain) BUSINESS DOES THE STATUTE GOVERNING THIS CASE PROVIDE FOR PAYMENT OF FEES BY THE LOSING YES El NO USE THIS SPACE TO ALERT THE COURT TO ANY SPECIAL CASE CHARACTERISTICS THAT MAY WARRANT INDIVIDUAL MANAGEMENT OR ACCELERATED DISPOSITION: RECEIVED FILED YOUR CLIENT NEED ANY DISABILITY ACCOMMODATIONS IF YES, PL OCEAN CO lj YES NO REQUEST BASES WILL AN INTERPRETER BE - IF YES, FOR WHAT LANGUAGE: - YES NO i certify that confidentiaI personal identi?ers have been redacted from documents now submitted to the court, and will be redacted from all documents submitted in the with ATTORNEY 30 - Civil Case Information Statement (OIS) Appendix CN 10517 Rev. 8/19/13 Effective 8f19g?13 Powered by Printed by ALL-STATE A Division of ALL-STATE International, Inc. wwmaslegatcom 800.222.0510 Page 1 t. . CIVIL CASE STATEMENT Use for initiai pieadings (not motions) under Rule 4:5-1 CASE TYPES (Choose one and enter number of case type in appropriate space on the reverse side.) Track - 150 days' discovery 151 NAME CHANGE 175 FORFEITURE 302 TENANCY 399 REAL PROPERTY (other than Tenancy, Contract, Condemnation, Complex Commercial or Construction) 502 BOOK ACCOUNT (debt collection matters only) 505 OTHER CLAIM (INCLUDING DECLARATORY JUDGMENT ACTIONS) 506 PIP COVERAGE 510 UM or UIM CLAIM (coverage issues only) 511 ACTION ON NEGOTIABLE INSTRUMENT 512 LEMON LAW 801 SUMMARY ACTION 802 OPEN PUBLIC RECORDS ACT (SUMMARY ACTION) 999 OTHER (brie?y describe nature of action) Track II 300 days' discovery 305 CONSTRUCTION 509 EMPLOYMENT (other than CEPA or LAD) 599 TRANSACTION 603M AUTO NEGLIGENCE - PERSONAL INJURY (non-verbal threshold) 603Y AUTO NEGLIGENCE - PERSONAL INJURY (verbal threshold) 605 PERSONAL INJURY 610 AUTO NEGLIGENCE - PROPERTY DAMAGE 621 UM or Ciaim (includes bodily injury) 699 TORT OTHER Track 450 days? discovery 005 CIVIL RIGHTS 301 CONDEMNATION 602 ASSAULT AND BATTERY 604 MEDICAL MALPRACTICE 606 PRODUCT 607 PROFESSIONAL MALPRACTICE 603 TOXIC TORT - 609 DEFAMATION 616 WHISTLEBLOWERICONSCIENTIOUS EMPLOYEE PROTECTION ACT (CEPA) CASES 617 INVERSE CONDEMNATION 618 LAW AGAINST DISCRIMINATION (LAD) CASES Track IV Active Case Management by Individuat Judgel450 days' discovery 156 ENVIRONMENTALIENVIRONMENTAL COVERAGE LITIGATION - 303 MT. LAUREL 508 COMPLEX COMMERCIAL 513 COMPLEX CONSTRUCTION 514 FRAUD 620 FALSE CLAIMS ACT 701 ACTIONS iN LIEU OF PREROGATIVE WRITS Multicounty Litigation (MCL) (Track N) 266 HORMONE REPLACEMENT THERAPY (HRT) 266 PRUDENTIAL TORT 271 ACCUTANEIESOTRETINOIN 289 REGLAN 274 RISPERDAUSEROQUELIZYPREXA 290 POMPTON LAKES ENVERONMENTAL LITIGATION 273 ZOMETNAREDIA 291 PELVIC 279 GADOLINEUM 292 PELVIC 281 BRISTOL-MYERS SQUIBB ENVIRONMENTAL 293 DEPUY ASR HIP LITIGATION 282 FOSAMAX 295 ALLODERM REGENERATIVE TISSUE MATRIX 284 NUVARING 296 REJUVENATEIABG II MODULAR HIP STEM COMPONENTS 285 TRIDENT HIP 29? MIRENA CONTRACEPTIVE DEVICE 286 LEVAQUIN 601 ASBESTOS 28? 623 PROPECIA If you believe this case requires a track other than that provided above, please indicate the reason on Side 1, in the space under "Case Characteristics." Please check off each applicable category: Putative Class Action . Title 59 30 - Civil Case Information Statement (CIS) by Printed by ALL-STATE Appendix ON 10517 A Division of ALL-STATE International, Inc. Rev. 8/19f13 Effective 8/19/13 mvwaslegaLcom 800.222.0510 PageZ FILING ATTORNEY: RICHARD D. STANZIONE, ESQUIRE N.J. ATTORNEY ID 0. 012951974 HIERING, DUPIGNAC, STANZIONE, DUNN RC. 64 Washington Street Toms River, New Jersey 08753 732-349-1212 Attorneys for Defendants, Saddy Family, LLC, and 2-4-6-8 Boulevard, LLC - - C.S. BOULEVARD PROPERTIES, LLC, a limited liability company of the State of New Jersey, Plaintiff, v. THE BOROUGH OF SEASIDE HEIGHTS PLANNING SADDY FAMILY, LLC, and 2-4-6?8 BOULEVARD, LLC, . Defendants. - OCEAN COUNTY RECEIVED FILED AUG I 3 2014 SUPERIOR CT., OCEAN CO. SUPERIOR COURT OF NEW JERSEY LAW DIVISION . DOCKET NO. CIVIL ACTION ANSWER TO PLAINTIFF COMPLAINT IN LIEU OF PREROGATIVE WRITS Defendants, SADDY FAMILY, LLC, a limited liability company, and 2?4-6?8 BOULEVARD, LLC, a limited liability company (hereinafter collectively, ?Answering Defendants?), by way of Answer to Plaintist complaint, say: FIRST COUNT 1. Answering Defendants neither admit nor deny and are without suf?cient information to form a belief as to the truth of the allegations contained in Paragraph 1 of the First Count of Plaintist Complaint and leave Plaintiff to?its proofs. Answering Defendants admit ownership of Block 4.01, Lots the Borough of Seaside Heights. I 3. Admitted. I 4. Answering Defendants admit applying to the Defendant, Borough of Seaside Heights Planning Board (?Defendant Planning Board?) for Preliminary and Final Site Plan approval in connection with Block 4.01, Lots the Borough of Seaside Heights. As to the remaining allegations of Paragraph 4 of the First Count of Plaintiff?s Complaint, Answering Defendants? application and the plans . submitted therewith speak for themselves. I 5. Admitted. 6. Answering Defendants admit that the Defendant Planning Board adepted' Resolution No. 14-10, attached to Plaintiff?s Complaint as Exhibit on May 28, 2014. Answering Defendants deny the remaining allegations of Paragraph 6 of the First Count of Plaintiffs Complaint as the resolution speaks for itself. I 7. Denied. I I WHEREFORE, Answering Defendants demand judgment dismissing Plaintiff?s Complaint and awarding counsel fees and costs of suit. SEPARATE DEFENSES FIRST SEPARATE DEFENSE The Court lacks jurisdiction over the subject matter of the action and Answering Defendants reserve the right to move for dismissal of the Plaintiff Complaint. I SECOND SEPARATE DEFENSE The Court lacks personal jurisdiction over Answering Defendants. THIRD SEPARATE DEFENSE The Plaintiff?s Complaint herein fails to state a claim upon which relief can be granted and Answering Defendants reserve the right to move at or befOre the time of trial to dismiss same. FOURTH SEPARATE DEFENSE The applicable law, rule, statute or regulation, including, but not limited to, the Statute of Limitations, controlling or requiring the institution of suit within a certain period of time following its accrual, was not complied with by the claimant and, accordingly, the claimant?s claim is barred as a matter of law. SEPARATE DEFENSE The Court lacks jurisdiction over the subject matter of this action and Answering Defendants reserve the right to move for dismissal of the Plaintiff?s Complaint. SIXTH SEPARATE DEFENSE The Plaintiff is estopped from proceeding with this alleged cause of action. - SEVENTH SEPARATE DEFENSE Plaintiff?s actions are barred by the Doctrine of Unclean Hands. EIGHTH SEPARATE DEFENSE - Plaintiff participated in the hearings before the Defendant Planning Board and has waived its right to complain about the approval as Plaintiff, through its owner/ agent, indicated its acceptance and rati?cation of modi?cations and accommodations made by Answering Defendants and the Defendant Planning Board for the purpOse of satisfying the concerns ?of the Plaintiff. NINTH SEPARATE DEFENSE The actions of the Defendant Planning Board were not arbitrary, capricious or unreasonable. I TRIAL ATTORNEY DESIGNATION Pursuant to. Rule 4:25-4, Richard D. Stanzione, Esquire, is hereby designated as trial counsel for Answering Defendants in the above-captioned matter. CERTIFICATION PURSUANT TO RULE 4:51 The undersigned hereby certi?es that this matter is not the subject of any other action or of a pending arbitration proceeding, and no other action or arbitration proceeding is contemplated. The undersigned hereby certi?es that he knoWs of no other parties who should be joined in the action at this time. CERTIFICATION PURSUANT TO RULE The undersigned hereby certi?es that con?dential personal identi?ers have been redacted from documents now submitted to the court and will be redacted from all documents submitted in the future in accordance with ?le CERTIFICATION OF FILING AND SERVICE I hereby certify that a copy of the within pleadings was served upon opposing counsel within the time prescribed by Rule 416-1. 4 HIERIN G, DUPIGNAC, STANZIONE, DUNN 8: BECK, P.C. Attorneys for Defendants, Saddy Family, LLC and 2-4?6?8 Boulevard, LLC - WW Dated: August 13, 2014 Family, LLC and 2-4-6-8 Boulevard, LLC at 315 adv. C.S. Bouievard Properties, LLC\P1eadings\Answer.docx EDWARD F. LISTON, JR., LLC A New jersey b?z?z?ed liabz'iz'gy 0722135173): 143017296 at Law .. P.0'Box1056 . . . 207 HooperAvenue Tom; River, Newjemy 087541056 I (732) 244-5900 - id- EL EDWARD F. LISTON, JR. - FAX (732) 505-8948 Rule 1:40 Quali?ed Mediator E?maii: . 4,3,3 Website.? wzuw.fzh'fazzlaw.rom 1 inks?, '1-?11 I al'V??If?I ?nu?n. a" oms River, NJ 08754-1056 u: an. a August 15, 2014 Honorable Vincent J. Grasso Superior Court of New Jersey Ocean County-Court House P. 0. Box 2191 Toms River, NJ 08754-2191 RE: 08. Boulevard vs Borough of Seaside Heights, et a1 Docket No. PW Dear Judge Grasso: I am in receipt of your letter of August 13th scheduling a pretrial conference in the above matter for September 18, 2014 at 9:00 am. I note that your letter is only addressed to the undersigned as attorney for the Plaintiff and Guy Ryan, Esq. as attorney for the Seaside Heights Planning Board. - Please note that Richard Stanzione, Esq. represents the other Defendants in this matter, Saddy Family, LLC and 2-4-6-?8 Boulevard, LLC. By copy of this letter directed to Mr. Stanzione, I am copying him on your, letter of August 13, 2014 - WARD F. LISTON, JR.: EFcham Cc: Richard D. Stanzione, Esq. Client N.J.A.C. . NEW JERSEY ADMINISTRATIVE CODE Copyright 2014 by the New Jersey Office of Administrative Law This file includes all Regulations adopted and pubiished through the New Jersey Register, Vol. 46 No. 15, August 4, 2014 TITLE 7. ENVIRONMENTAL PROTECTION CHAPTER 50. PINELANDS COMPREH ENSIVEMANAGEMENT PLAN . SUBCHAPTER 6. MANAGEMENT PROGRAMS AND MINIMUM STANDARD PART VI--RESOURCE EXTRACTION - N.J.A.C. 750-653 (2014) General limitations Except as expressly authorized in this Plan, the extraction or mining of mineral resources other than sand, gravel, clay and ilmenite is prohibited. Nothing in this Part shall be construed to authorize resource extraction activities .without receiving permits pursuant to this Plan or from complying with the standards of this subchapter. HISTORY: Amended by R.1994 d.590, effective December 5, 1994. See: 26 New Jersey Register 165(a), 26 New Jersey Register 4795(a). LAW REVIEW AND JOURNAL COMMENTARIES: Pinelands--Municipa Land Use. P.-R. C'henoweth, 137 N.J.L.J. No. 18, 53 (1994). CASE NOTES: Requiring owner of property to register preexisting nonconforming use for sand and grave! extraction did not violate due process. Uncle v. New Jersey Pinelands Com'n, 275 N.J.Super. 82, 645 A.2d 788 (A.D.1994). Pinelands Protection Act and regulations superceded Municipal Land Use Law. Uncle v. New Jersey Pinelands Com'n, 27S N.J.Super. 82, 645 A.2d 788 (A.D.1994). 710R COURT OF NEW OCEAN VICINAGE CHAMBERS OF .. OCEAN COUNTY COURT HOUSE JUDGE VINCENT I. GRASSO 3's ?as Po. Box 2191 ASSIGNMENT JUDGE 3353};- TOMS RIVER, NJ. 08754-2191 MEMORANDUM DATE: August 15, 2014 . 0mg .AUG 20 2014 TO: Craig L. Wellerson, P.J.C .P. CHAMBERS OF FROM: Vlncent J. Grasso, CRAIG L. RE: C.S. Boulevard Pr0pe1ties, LLC vs Borough of Seaside Heights, et als Docket No. 1890-14 PW The above matter is being reassigned to you, for: I Trial as to damages. Management Purposes and Trial The reason for the reassignment ofthis case is as follows: 1. Con?ict with Assignment Judge. 2. . Special assignment by case due to con?ict with Assignment Judge. 3. Reciprocal reassignment in response to forwardng of case due to con?ict or assignment by case type. 4. Special assignment by Assignment Judge; case involves Jury Demand. When answer for Saddy Family, LLC. 2-4?6-8 Boulevard, LLC was received, . con?ict was noted. Judge Troncone has handled several prerogative writ cases previously in which I had a con?ict. 26.6w Vinc J. Grasso, A.J.S.C. cc: Civil Case Management Of?ce ATTN: Maria Obry F. LISTON, JR., LLC 3 i A New jersey Limited Liability Company Attorneys at Law P. O. Box 1056 207 Hooper Avenue Toms River, New jersey 08754-1056 . (732) 244-5900 Please Reply to: EDWARD F. LISTON, JR. FAX {732) 505-8948 . P.O. Box 1056 Rule 1:40 Qualified Mediator Toms River, NJ 08754?1056 E?moil: edword. liston@verizon. net Website: more). Estonian). com ?September 8, 2014 ii if Honorable Craig L. Wellerson, Superior Court of New Jersey 9 Ocean County, Law Division PO. Box 2191 Toms River, NJ 08754-2191 MEWPJE RE: C.S. Properties, LLC vs Borough of Seaside Heights Planning Board Saddy Family, LLC and 2468 Boulevard, LLC Docket No. PW Dear Judge Wellerson: Please be advised that I represent the Plaintiff in the above referenced matter. It is my understanding that the above referenced case has been referred to your Honor by Judge Grasso and that the matter is scheduled for a Pro-trial Conference on September 18, 2014 at 9 am. . Enclosed please ?nd an original and one (1) copy of Plaintiff? Pro?trial Memorandum for your Honor?s review and consideration. - Enclosures Cc: Guy P. Ryan, Esquire Richard D. Stanzione, Esquire Client Via e-mail EDWARD F. LISTON, JR., LLC Edward F. Liston, Jr., Esquire ID No. 256911969 207 Hooper Avenue PO. Box 1056 Seaside Heights, NJ 08754 (732) 244~5900 Attorneys for Plaintiff C.S. BOULEVARD PROPERTIES, LLC SUPERIOR COURT OF NEW JERSEY a limited liability company of the State of LAW DIVISION: OCEAN COUNTY New Jersey Plaintiff, DOCKET NO. PW vs. - I Civil Action THE BOROUGH OF SEASIDE HEIGHTS PLANNING BOARD PLAINTIFF PRE-TRIAL MEMO - SADDY FAMILY, LLC and - 2-4-6-8 BOULEVARD, LLC Defendants 1. NATURE OF Action in lieu of Prerogative Writs seeking to, reverse the approval of the Preliminary and Final Site Plan Approval with Waivers sought by Defendants, Saddy Family, LLC and Boulevard, LLC, to permit the constiuction of a bar, restaurant and lounge addition to the existing building located at 302 Boulevard, Seaside Heights, New Jersey, declaring the Resolution of May 27, 2014 to be null and void and setting aside said Resolution and the Preliminary and Final Site Plan Approval which it purported to grant to Defendants, Saddy Family, LLC and 2?4?6?8 Boulevard, LLC. 2 ADMISSIONS AND STIPULATIONS: None. 3/4. FACTUAL AND LEGAL CONTENTIONS: Annexed hereto. 5. - DAMAGES AND INJURY CLAIMS: 10. 11. 12. 13. 14. - 15. 16. 17. 18. 19. AMENDMENTS: None ISSUE AND EVIDENCE PROBLEMS: Whether the approval granted to Defendants Saddy Family, LLC and 2-4-6u8 Boulevard, LLC by Defendant, Seaside Heights Flaming Board was arbitrary, capricious, unreasonable oppressive, unlawful and against the great weight of the evidence presented to Defendant, Seaside Heights Planning Board at the hearings held by it on said application. LEGAL ISSUED ABANDONED: None. EXHIBITS: All exhibits annexed to'the Complaint and marked into evidence at the Seaside Heights Planning Board hearings. EXPERT WITNESSES: BRIEFS: As directed by the Court. ORDER OF OPENING AND CLOSING: Usual order. OTHER MATTERS AGREED UPON: None. TRIAL COUNSEL: Edward F. Liston, Jr., Esquire. ESTIMATED LENGTH OF TRIAL: One day. OR TRIAL DATE: At the direction of the Court. ATTORNEYS FOR PARTIES CONFERRED ON: Matters agreed upon: None IT IS HEREBY CERTIFIED THAT ALL PRETRIAL DISCOVERY HAS BEEN COMPLETED. PARTIES WHO HAVE NOT BEEN SERVED: None. 3 a 4. FACTUAL AND LEGAL CONTENTIONS Defendants, Saddy?FaInily, LLC and 2468 Boulevard, LLC, are the owners of property located at the southeast corner of Hamilton Avenue and Boulevard in the Borough of Seaside Heights, County of Ocean and State of New Jersey, which premises are known as Block 4.01, Lots the Borough of Seaside Heights. Plaintiff is the owner of property located on the Boulevard in Seaside Heights, New Jersey within two hundred (200?) feet of the property owned by Defendants, Saddy Family, LLC and 2-4-6-8 Boulevard, LLC By written application Defendants, saddy Family, LLC and 2-4?6-8 Boulevard, LLC, applied to the Seaside Heights Planning Board for Preliminary and Final Maj or Site Plan Approval with Waivers pursuant to the applicable portions of the Land Use Development Regulations of the Borough of Seaside Heights to construction a bar, restaurant and lounge - consisting of an addition and expansion of the existing building with appurtenant facilities on the subject property described above. Defendant, Seaside Heights Planning Board, held public hearings on the application on April 23, 2014 and May 28, 2014. By Resolution adopted by Defendant Seaside Heights Planning Board on May 28, 2014, which was published in the Asbury Park Press on June 6, 20l4, Defendant, Seaside Heights Planning Board, granted to Defendants, Saddy Family, LLC and 2-4-6?8 Boulevard, LLC, the. Preliminary and Final Maj or Site Plan approval with Waivers requested by them to permit the construction of the bar, restaurant and lounge referred to aboVe on their property located at 302 Boulevard Seaside Heights, New Jersey. The actions of Defendant, Seaside Heights Board of Adjustment, in granting the - l' Preliminary and Final Maj or Site Plan Approval with Waivers Application of Defendants, Saddy Family, LLC and 2-4-6-8 Boulevard, LLC, referred to above, were arbitrary, capricious, unreasonable, oppressive, unlawful and against the great weight of the evidence presented to Defendant, Seaside Heights Planning Board at the hearings held by it on said application. EDWARD F. LISTON, JR., ESQ. DATED: September 8, 2014 EDWARD F. LISTON, JR., LLC Edward F. Liston, Jr., Esquire ID No. 256911969 207 Hooper Avenue PO. Box 1056. Seaside Heights, NJ 08754 (732) 244-5900 Attorneys for Plaintiff C.S. BOULEVARD PROPERTIES, LLC SUPERIOR COURT OF NEW JERSEY a limited liability company of the State of LAW DIVISION: OCEAN COUNTY New Jersey . Plaintiff, DOCKET NO. PW vs. Civiletion THE BOROUGH OF SEASIDE HEIGHTS PLANNING BOARD PLAINTIFF PRE-TRIAL IVIEMO SADDY FAMILY, LLC and 2-4-6-8 BOULEVARD, LLC Defendants 1. NATURE OF ACTION: Action in lieu of Prerogative Writs seeking to reversethe approval of the Preliminary and Final Site Plan Approval With Waivers sought by Defendants, Saddy Family, LLC and 2-4?6-8 Boulevard, LLC, to permit the construction of a bar, restaurant and lounge addition to the I existing building located at 302 Boulevard, Seaside Heights, New Jersey, declaring the I Resolution of May 27, 2014 to be null and void and setting aside said Resolution and the Preliminary and Final Site Plan Approval which it purported to grant to Defendants, Saddy Family, LLC and 2-4-6-8 Boulevard, LLC. 2 ADMISSIONS AND STIPULATIONS: None. I 3/4. FACTUAL LEGAL CONTENTIONS: Annexed hereto. 5. DAMAGES AND INJURY CLAIMS: - 10. 11. 12. 13. 14. 15. 16-. 17. 18. 19. LEGAL ISSUED ABANDONED: MATTERS AGREED UPON: AMENDMENTS: None - ISSUE AND EVIDENCE PROBLEMS: Whether the approval granted to Defendants Saddy Family, LLC and 2-4?-6-8 Boulevard, LLC by Defendant, Seaside Heights Flaming Board was arbitrary, capricious, unreasonable oppressive, unlaw?ll and against the great weight of the evidence presented to Defendant, Seaside Heights Planning Board at the hearings held by it on said application. I None. EXHIBITS: All exhibits annexed to the Complaint and marked into evidence at the Seaside Heights Planning Board hearings. EXPERT WITNESSES: NIA. BRIEFS: As directed by the Court. ORDER OF OPENINGAND CLOSING: Usual order. None. TRIAL COUNSEL: Edward F. Liston, Jr., Esquire. ESTIMATED LENGTH OF TRIAL: One day. WEEKLY CALL OR TRIAL DATE: At the direction of the Court. ATTORNEYS FOR PARTIES CONFERRED ON: Matters agreed upon: None IT IS HEREBY CERTIFIED THAT ALL PRETRIAL DISCOVERY HAS BEEN COMPLETED. PARTIES WHO HAVE NOT BEEN. SERVED: None. DATED: September 8, 2014 1. 3 a 4. FACTUAL LEGAL CONTENTIONS Defendants, Saddy Family, LLC and 2468 Boulevard, LLC, are the owners of prOperty located at the south-east corner of Hamilton Avenue and Boulevard in the Borough of Seaside Heights, County of ocean and State of New Jersey, which premises are known as Block 4.01, Lots the Borough of Seaside Heights. Plaintiff is the owner of prOperty located on the Boulevard in Seaside Heights, New Jersey within two hundred (200?) feet of the property owned by Defendants, Saddy Family, LLC 2-4-6-8 Boulevard, LLC By written application Defendants, Saddy Family, LLC and 2-4-6-8 Boulevard, LLC, applied to the Seaside Heights Planning Board for Preliminary-and Final Maj or Site Plan Approval with Waivers pursuant to the applicable portions of the Land Use Development Regulations of the Borough of Seaside Heights to construction a bar, restaurant and lounge consisting of an addition and expansion of the existing building with appurtenant facilities on the subject property described above. Defendant, Seaside Heights Planning Board, held public hearings on the application on April 23, 2014 and May 28, 2014. ByResolution adopted Defendant Seaside Heights Planning Board on May 28, 2014, I which was published in the Asbury Park Press on June 6, 2014, Defendant, Seaside Heights Planning Board, granted to Defendants, Saddy Family, LLC and 2?4?6-8 Boulevard, LLC, the Preliminary and inal Maj or Site Plan approval with Waivers requested by them to permit the construction of the bar, restaurant and lounge referred to above on their property located at 302 Boulevard Seaside Heights, New Jersey. The actions of Defendant, Seaside Heights Board of Adjustment, in granting the I . . Preliminary and Final Major Site Plan Approval with Waivers Application of Defendants, Saddy Family, LLC and 2-4?6-8 Boulevard, LLC, referred to above, were arbitrary, capricious, unreasbnable, oppressive, unlan and against the great weight of the evidence presented to Defendant, Seaside Heights Planning Board at the hearings held by it on said application. GPR: LAW OFFICES OF GUY P. RYAN COMPANY ATTORNEYS AT LAW GUY P. RYAN CERTIFIED BY THE SUPREME COURT OF NEWERSEY AS A CIVIL TRIAL ATTORNEY September 15, 2014 Honorable Craig L. Wellerson, P.J.CV. Superior Court of New Jersey Ocean County Courthouse 120 Hooper Avenue Toms River, NJ 08753 248-R WASHINGTON STREET TOMS RIVER, 03753 Phone: (732) 341~7300 Fax: (732) 341-7600 Email: an 11 anlaw.com Re: C.S. Boulevard Properties, LLC V. Borough of Seaside Heights Planning Board,- et. a1. Docket N0.: Dear Judge Wellerson: I I represent the defendant, Seaside Heights Planning Board in the above referenced'matterrif Enclosed please ?nd an original and one copy of pretrial memorandum of the Planning Board in anticipation of the pretrial conference scheduled before?Your Honor on September 18, 2014 at 9:00 am. Enclosure cc: Edward Liston, Esq. Richard Stanzione, Esq. Ann Stabile, Board Secretary SEP 15 2011 BERS 0F -- cma E?tiemneasou. are? GUY P. RYAN, ESQ., Attorney ID. 028711990 I LAW OFFICES OF GUY P. RYAN, LLC 1 5 248-R Washington Street Toms River, New Jersey 08753 CHAMBERS OF (732) 341-7300 GRAB WELLERSDN. Rim. Attorneys for Defendant, Borough of Seaside Heights Planning Board C.S. BOULEVARD PROPERTIES, LLC, SUPERIOR COURT OF NEW JERSEY A limited liability company of the State of LAW DIVISION: OCEAN COUNTY New Jersey . Plaintiff(s), DOCKET NO.: v. . THE BOROUGH OF SEASIDE HEIGHTS, PRETRIAL MEMORANDUM PLANNING SADDY FAMILY, LLC OF DEFENDANT, BOROUGH And 2-4-6?8 BOULEVARD, LLC OF SEASIDE HEIGHTS PLANNING BOARD Defendants. Defendant, Borough of Seaside Heights Planning Board hereby submits this pretrial memorandum pursuant to R. I I 1. Nature of Action: Action in lieu of prerogative Writs ?led by CS. Boulevard Properties, LLC seeking to reverse an approval granted by the Seaside Heights Planning board to defendants, Saddy Family, LLC and 2?4?6-8 Boulevard, LLC granting preliminary and ?nal site plan approval with waivers to permit the constructiOn of a bar and restaurant on an existing building located at 302 Boulevard, Seaside Heights, New Jersey, and seeking to declare the Resolution of May 27, 2014 null and void. 2. Admissions and Stipulations: None. 3/4. Factual and Legal Contentions: .Annexed hereto. 5. Damages and Iniurv Claims: Not applicable 1 6. Amendments to the Pleadings: None. 7 . Issues and Evidence Problems: Whether the action of the Seaside Heights Planning Board in granting preliminary and ?nal site plan approval with waivers to defendants, Saddy Family LLC and 2-4-6-8 Boulevard LLC, was arbitrary, capricious or unreasonable. 8. Legal Issues Abandoned: None. 9. Exhibits: All exhibits moved into evidence at the Seaside Heights Planning Board hearings and all exhibits referenced in the Resolution of approval, to be supplied to the court by plaintiff?s counsel. 10. Expert Witnesses: Not applicable. 11. m: As directed by the court. 12. Order of Opening and Closing: Usual. 13. Other Matters Agreed Upon bv Counsel: None. 14. Trial Counsel: Guy P. Ryan, Esq., for Seaside Heights Planning Board 15. Estimated Length of Trial: One half day I 16. Trial Date: At the direction of the court. 17. Attorneys for Parties conferred and Agreed Upon the Following Matters: None. 18. It Is Hereby Certified That All Pretrial Discovery Has Been Completed: No. Plaintiff has not yet served the transcripts of the hearings before the Seaside Heights Planning Board. 19. Parties Who Have Not Been Served: None. Parties Who Have Defaulted: None. 9 ,1 RYEN, ESQ. I Seas eights Planning Board Attorney Dated: Cl! \h I - 963 A.2d 1208 . Page 1 of 12 West Reporter Imaoe 405 N.J.Super. 189, 963 A.2d 1208 Judges. Attorneys and Exoerts . Superior Court of New Jersey, Appellate Division. Thomas WILSON, Plaintiff?Appellant, BRICK TOWNSHIP ZONING BOARD OF ADJUSTMENT, Defendant-Respondent. Argued Dec. 3, 2008. Decided Jan. 22, 2009. Background: Property owner filed complaint against-township Zoning Board of Adjustments, challenging denial of his application for bulk zoning variances. The Superior Court, Law Division, Ocean County, affirmed denial of applications, and property owner appealed. Holdings: The Superior Court, Appellate Division, Lyons, J.A.D., held that: owner was not entitled to variance with respect to back yard deck and pool under provision in Municipal Land Use Law governing applications for variance that would enhance purposes of Law; (21 owner was entitled to variance to 15~foot rear year setback with respect to deck .that property owner enlarged to cover entire back yard; and ?11 remand was required for property owner to demonstrate, and Board to make findings, as to whether strict application of zoning ordinances would result in peculiar and exceptional practical difficulties and that owner was unable to conform his specific and detailed plans to zoning requirements without peculiar and exceptionai practical difficulties. Affirmed in part; reversed in part;, remanded. West Headnotes KevCite Citino References for this Headnote $29414 Zoning and Planning Judicial Review or Relief ?ea-2414mm Scope of Review In General {3133414k1645 Matters of Discretion m414k1651 k. Variances and exceptions. Most Cited Cases (Formeriy 414k623) . In reviewing a decision to grant a variance, courts typically recognize that municipal bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in-the exercise of their delegated discretion. [21 KevCite Citino References for this Headnote Zoning and Planning WMX Judicial Review or Relief Scope of Review ihAl4X?C11 In General - ?5414k1627 Arbitrary, Capricious, or Unreasonable Action . 331-21414k1629 k. Regulations. Most Cited Cases 4. 07&scxt=WL&rlti=1 .. 9/2/2014 963 A.2d 1208 Page 2 of 12 f) . 3 (Formerly 414k609) {323$ Zoning and Planning KeyCite Citing References for this Headnote ce?3414X Judicial Review or Relief Scope of Review Presumptions and Burdens a?233414k1676 k. Validity of regulations in general. Most Cited Cases (Formerly 414k672) The judicial role in reviewing a zoning ordinance is circumscribed: there is a strong presumption in favor of its validity, and the court cannot invalidate it, or any provision thereof, unless this presumption is overcome by .a clear showing that it is arbitrary or unreasonable. L31 KeyCite Citino References for this Headnote - ram Zoning and Planning Judicial'Review or Relief m414xgci Scope of Review im414X(C)1 In General :ew414k1627 Arbitrary, Capricious, or Unreasonable Action m414k1628 k. In general. Most Cited Cases (Formerly 414k608.1) - A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. KeyCite Citing References for this Headnote mm Zoning and Planning Judicial Review or Relief Scope of Review In General m414k1637 Wisdom, Judgment, or Opinion mam-k. In general- mm (Formerly 414k614. 1) Zoning and Planning KeyCite Citing References for this Headnote =m414X Judicial Review or Relief m414XlC) Scope of Review In General m414k1645 Matters of Discretion c3414k1646 k. In general. Most Cited Cases (Formerly 414k619.1) Even when doubt is entertained as to the wisdom of a zoning determination, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved. [51 KeyCite Citing References for this Headnote Zoning and Planning Judicial Review or Relief Scope of Review @414xlcl4 Questions of Fact $21414k1695 k. Extent of review in general. Most Cited Cases .. I 9/2/20 14 963 A.2d 1208. I Page 3 of 12 (Formerly 414k701) On appeal from a zoning determination, the courts will give substantial deference to the board's findings of fact; however, it is essential that the board's actions be grounded in evidence in the record. KeyCite Citing References for this Headnote mung Zoning and Planning . Administration in General a23414k1335 Proceedings in General cm414k1339 Notice and Hearing - ?21414k1339l41 k. Evidence. Most Cited Cases (Formerly 414k359) While expert testimony is often presented to a zoning-board and is found helpful, the board is not bound to accept the testimony of any expert. [21 KevCite Citing References for this Headnote @3414 Zoning and Planning Variances and Exceptions In General c3414k1532 k. Water-related uses and regulations. Most Cited Cases (Formerly 414k503) . Property owner was not entitled to variance with respect to back yard deck and pool under provision in Municipal Land Use Law governing applications for variance that would enhance purposes of Law; variance did not advance any benefit to community but would have merely alleviated hardship to property owner which he himself created by building nonconforming deck and pool without obtaining permits. N.J.S.A. KeyCite Citing References for this Headnote Zoning and Planning @2414? Variances and Exceptions m414IxiA) In General atm414k1477 Hardship, Loss, or Injury m414k1482 k. Self-created hardship; prior knowledge. Most Cited Cases (Formerly 414K497) A variance sought under the provision of the Municipal Land Use Law that authorizes a variance if it would enhance the purposes of the Law is not necessarily unavailable because the applicant has created the condition which requires the variance. N.J.S.A. [g1 KevCite Citing References for this Headnote Zoning and Planning Variances and Exceptions res414lxlA) In General - $2414k1474 k. Public interest or welfare. Most Cited Cases (Formerly 414k490) @244; Zoning and Planning KevCite Citing References for this Headnote .. 9/2/20 1 4 965 A.2d 1208 Page 4 of 12 rtm414IX Variances and Except??nS In General _?:22414k1477 Hardship, Loss, or Injurv @414k1479 k. Necessity of showing. (Formerly 414k494) A variance sought under the provision of the Municipal Land Use Law (MLUL) that authorizes the grant of a variance if it would enhance the purposeof the Law is not based Upon hardship but requires a balancing of the benefits and detriments from the grant of the variance; the analysis focuses on advancing the purposes of the MLUL and the benefits to the community. N.J.S.A. KevCite Citinq References for this Headnote twig Zoning and Planning- Variances and Exceptions m4141XiB) Proceedings for Variances and Exceptions 6:5414k1538 k. Application. Most Cited Cases (Formerly 414k533) On an appiication for a variance under the provision of the Municipal Land Use Law (MLUL) that authorizes the grant of a variance if it would enhance the purpose of the Law, the variance applicant must set forth what purposes of the MLUL will be advanced by granting the requested variance. N.J.S.A. KevCite Citino References for this Headnote 42mm Zoning and Pianning - Variances and Exceptions c==4141XiAi In General ?13414k1489 Architectural and Structural Designs $29414k1492 k. Building or setback lines. Most Cited Cases (Formerly 414k504) Property owner was entitled to variance to 15-foot rear year setback with respect to deck that property owner enlarged to cover entire back yard; home was lawfully existing structure, strict application of zoning ordinance would result in aliowing only three foot deck, which presented peculiar and exceptional practical difficulties for owner, variance would not be substantial detriment to public good or substantially impair intent to zoning plan and ordinances. N.J.S.A. [12] KevCite Citing References for this Headnote mm Zoning and Planning 1 exam Judicial Review or Relief Determination #:23414k1722 Remand sm414k1724 k. Directing further action by local authority. Most Cited Cases (Formerly 414k728) Remand to Zoning Board of Adjustments was required on application for variance to side-and rear yard set back for purposes of enhancing property owner?s yard with deck and pool, in order for property owner to provide any evidence to show that strict application of zoning ordinances would result in pecuiiar and exceptional practical difficulties clue to size of rear yard and that he was unable to conform his specific and detailed plans to zoning requirements without peculiar and exceptional .. 9/2/2014 963 A.2d 1208 . Page 5 of 12 m) practical difficulties, and for Board to make specific findings regarding same. N.J.S.A. - ?1210 Robert J. Pansulla, Belleville, argued the cause for appellant (Gaccione, Pomaco Malanga, attorneys; Mr. Pansulla, on the brief). Kenneth B. Fitzsimmons. Point Pleasant Beach, argued the cauSe for respondent (Sinn, Fitzsimmons, Cantoli 8; west, P.A., attorneys; Mr. Fitzsimmons, of counsel and on the brief). Before Judges PAYNE and LYONS. Judge Stern did not participate in oral argument. However, with the consent of counsel, he has joined in this opinion. R. The opinion of the court was delivered by LYONS, J.A.D. . - . I . *192 Plaintiff, Thomas Wilson, appeals from an order dismissing his cOmplaint with prejudice and affirming the denial by defendant, Brick Township Zoning Board of Adjustment, of plaintiff's application for seven bulk zoning variances. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. *193 Plaintiff owns property located in Brick Township, which is in an R-5 zone, permitting single? . family residential structures. Plaintiff's house is a two-story frame dwelling set back forty-one feet from the street and eighteen feet from the rear property line. The rear of the pr0perty borders on Barnegat Bay and plaintiff has title to a riparian grant covering the land between the end of the property line and the bulkhead, which is constructed 2.48 feet beyond the property line. In 1999, at the time that plaintiff purchased the property, there was an existing deck on the premises that covered most, but not all, of the back yard, and that extended beyond the rear property line **1211 past the bulkhead. After purchasing the property, plaintiff expanded the deck so that it covered the entire back yard. The deck was also raised fifty-four inches in height, and a swimming pool was built into the deck. Plaintiff constructed the improvements without obtaining the necessary permits, which led to litigation and his eventual payment of fines. Plaintiff?s construction did not comply with the Township's bulk zoning requirements regarding the location of the improvements. In July 2006, plaintiff filed an application with defendant for variances seeking approval of the previously constructed deck and swimming pool. Specifically, the bulk - variances sought by plaintiff were: - - Item Required Provided rear yard setback (deck) 15 feet 0 feet . rear yard setback (pool) 5 feet 0 feet (within existing deck) side yard setback (dwelling) 5 feet (one side) 12 feet 5.1 feet (one side) I 11 feet (total) (total) side yard setback (deck) 5 feet (one side) 12 feet 0 feet (one side) 5.6 feet (tota (total) side yard setback (pool) 5 feet 3.4 feet (within existing deck) side yard setback (shed) 4.1 feet (1/2 height) 3.3 feet maximum lot coverage 35% 49.7% *194 The Township's zoning officer issued a report on the application, and the proper notice of I hearing was published as required by law. On November 1, 2006, a hearing was held on the application, where plaintiff produced the expert testimony of Charles an engineer and professional planner. Mr. testified that the dwelling was constructed in order to provide a large front yard (forty-one feet from the street) and a ://Web2 . 9/2/2014 963 A.2d 1208 Page 6 of 12 . much smaller back yard (eighteen feet from the property line). Plaintiff's proposal was to remove the portion of the deck that extended past the bulkhead, bringing it back to the end of the bulkhead. He further testified that there was a minor deficiency in the side yard setback requirement of the dwelling clue to its construction prior to a recent amendment to the ordinance. The current ordinance required a twelve foot combined side yard setback, whereas the dwelling had only an eleven foot combined side yard setbackf-??l2 The variance concerning the dwelling not meeting the twelve foot combined side yard setback does not appear to be at all connected with the application to extend the rear yard deck and install a pool. It seems this condition existed prior to plaintiff's purchase of the dwelling in 1999. Mr. concluded that fitting a pool within the deck as it existed in 1999 in conformity with the setback requirements would have been ?impossible.? Mr. also noted in his testimony that ?basically, the entire neighborhood is developed exactly as the Wilsons are developed with a raised deck and a pool." He further emphasized this point by testifying that removal of the deck and pool would render plaintiff's property ?out of character with the neighborhood." In referring to photographs admitted into evidence, Mr. testified that the deck and pool were consistent with the neighboring adjacent**1212 properties, and did not infringe upon light, air, and open space. While Mr. acknowledged that he did not survey every property in the neighborhood, he testified that he conducted his investigation by visual inspection of the neighboring properties from plaintiff?s *195 dock and by examining aerial photographs. He noted plaintiff's pool could not be seen from the street or the bay; the pool could only be seen from the vantage point of a neighboring deck that was similarly arranged. Mr. aiso testified that granting the variance would ?promote desirable visual environment.? He went on to state: I think if you look at the photos, you see that every house is harmonious in the sense that they have these living areas and it is a desirable visual environment. I think that actually, adequate light, air and open space is maintained because of the proximity to the Barnegat Bay and this is their living space on the lot. I don't think light, air and open space is infringed upon with this lot having this condition. All the lots have the same condition. Plaintiff acknowledged through counsel that any variances granted by the Board would have to be conditioned upon approval by the New Jersey Department of Environmental Protection (DEP), pursuant to the Coastal Area Facility Review Act (CAFRA). In its resolution denying the bulk variances, defendant stated: [t]he Board finds and determines that the existing pool was built after the property was acquired by the applicant without obtaining a permit. The deck was enlarged by the applicant without obtaining a permit. Although there was testimony about adjoining properties having simiiarly situated decks and pools, no proof was submitted as to whether the adjoining preperties obtained appropriate building permits. Mr. Mizer, the Township Sub?Code Official, testified that the properties adjoining the applicant's property are not a good indication of the development of the properties in the entire neighborhood. The Board further finds that there was no testimony given regarding the necessity of having the pool situated in its present location. There was no testimony that a pool could not be built without variances. There was no testimony as to the possibility of reducing the size of the deck or pool. There was no testimony. that the appiicant could not provide adequate setbacks for the deCk. The applicant has failed to provide any testimony to substantiate a hardship requiring the granting of the variances requested. The Board finds that any hardship was created by the applicant himself. The Board finds that the application is not in keeping with the Municipal Zoning Ordinance and Master Plan. - 9/2/2014 963 A.2d 1208 PageJanuary 2, 2007, plaintiff instituted suit by filing a complaint in lieu of prerogative writs. On or about February 5, 2007, defendant filed an answer. On January 18, 2008, a trial was held, and on January 31, 2008, the court issued a written opinion upholding the decision of the *196 Board. The trial court found that the reasons given by defendant for denial of plaintiff's seven variances were amply supported by competent and credible evidence in the record and defendant's denial of plaintiff's application was not arbitrary, capricious or unreasonable. A final order ofjudgment was entered on February 13, 2008, affirming the Board's resolution and dismissing plaintiff's complaint with prejudice. On March 27, 2008, plaintiff filed a_ Notice of Appeal. - #31213 On appeal, plaintiff presents the following arguments for our consideration: POINT I: ACTIONS WERE ARBITRARY, CAPRICIOUS OR UNREASONABLE IN DENYING VARIANCE RELIEF UNDER THE CIRCUMSTANCES. A. The minor bulk variances can be granted under a analysis. B. The minor buik variances can be-granted under a analysis. C. Reversal would be appropriate without remand. [11 ?21 In reviewing a decision to grant a variance, courts typically recognize that municipal bodies, ?because of their peculiar knowledge of local conditions, must be allowed wide latitude in the exercise of their delegated discretion.? Booth v. Bd. ofAdz'ustment of Rockaway 50 NJ. 302, 306, 234 A.2d 681 (1967}. [T]he judicial role in reviewing a zoning ordinance is circumscribed. There is a strong presumption in favor. of its validity, and the court cannot invalidate it, or any provision thereof, - unless this presumption is overcome by a clear showing that it is arbitrary or unreasonabie. HarVard Ent, Inc. v. Madison TQ. Bd. of Adjustment, 56 NJ. 362, 368, 266A.2d 588 (1970).] {31 [31 El Specifically, local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion'by the pubiic agencies involved. Kramer V. See Girl.? Bd. ofAdz?ustment, 45 NJ. 268, 296-97, 212 A.2d 153 [1965).] [51 On appeal, the courts ?will give substantial deference to findings of fact, [however,] it is essential that the board's actions be grounded in evidence in the record.? *197 Falione Properties. v. Bethlehem TD. Planning Bd.. 369 552. 562. 849 A.2d 1117 While a Board of Adjustment's exercise of its discretionary authority based on its factual determinations will not be overturned unless arbitrary, capricious or unreasonable, legal determinations are not entitled to a presumption of validity and are subject to de novo review. szvkowski' v. Rizas. 132 NJ. 509. 518-20. 626 A.2d 406 (1993). [61 Further, while expert testimony is often presented to a Board of Adjustment and is found helpful, a Board is not bound to accept the testimony of any expert. See El Sheer v. Manning Bd. of 9/2/2014 963 A.2d 1208 Page 8 of 12 '3 Lawrence, 249 N.J.Suner. 323. 330. 592 A.2d 565 {App.Div.1991). certif. denied, 127 NJ. 546 606 A.2d 360 (1992). Under the Municipal Land Use Law (MLUL), N.J.S.A. to *163, a municipality's Board of Adjustment is authorized to grant bulk zoning variances if the required criteria are met. N.J.S.A. Plaintiff argues that the variances applied for in this case should have been granted pursuant to N.J.S.A. as well as N.J.S.A. C2 Analysis [11g Plaintiff argues that he was entitled to the _bUlk variances sought pursUant to C2. C2 provides: wherein an application [for a variance] or [an] appeal relating to a specific piece of purposes of [the would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would if?421214 substantially outweigh any detriment, grant a variance to allow departure from The negative criteria of N.J.5.A. must also be met. That is, the variance can be granted ?without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. *198 [01 With respect to a C2 application, the Supreme Court has said: [be definition, then, no c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case, then, will be not on the characteristics of the land that, in light of current zoning requirements, create a ?hardship? on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community. Kaufmann v. Planning Bd. for Warren. 110 NJ. 551. 563. 542 A.2d 457 (1988) (emphasis omitted).] . However, variance is not necessarily unavailable because the applicant has created the condition which requires-the variance." Green Meadows at Montville. L.L.C. v. Planning Bd. 0 Montville, 329 N.J.Suner. 12. 22. 746 A.2d 1009 [913 A C2 variance then is not based upon ?hardship? but ?requires a balancing of the benefits and detriments from the grant of the variance.? Bressman v. Gash. 131 NJ. 517. 523. 621 A.2d 476 (1993), citing Kaufmann. sunra. 110 NJ. at 558?60. 542-A.2d 457. The analysis focuses on advancing the purposes of the MLUL and the benefits to the community. In sum, the application fer a variance under C2 requires: (1) [that it] relates to a specific piece of property; (2) that the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance requirement; (3) that the variance can be granted without substantial detriment to the public good; (4) that the benefits of the deviation would substantially outweigh any detriment and (5) that the variance wiil not substantially impair the intent and purpose of the 'zone plan and zoning ordinance. [William M.'Cox, New Jersey Zoning and Land Use Administration, 6~3.3.at 143 (Gann 2008), citing Ketcherick v. Bar. of Mountain Lakes, 256 N.J.Super. 647, 657, 607 A.2d 1039 (App.Div.1992); Green Meadows. sunra. 3-29 N.J.Suner. at 22. 746 A.2d 1009.] 9/2i2014 963 A.2d 1208 - Page variance applicant must set forth what purposes of the MLUL will be advanced by granting the requested variance. Plaintiff argues that its application advances the following three purposes of the MLUL: a. To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare; e. To promote the establishment of appropriate population densities and concentrations that contribute to the well?being of persons, neighborhoods, communities and regions and preservation of the environment; 9. To provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space, both public and private, according to M12.15 their respective environmental requirements in order to meet the needs of all New Jersey N.J.S.A. and - In Kaufmann the New Jersey Supreme Court ruled that there was sufficient public benefit to warrant a C2 variance, when it ?effectuate[d] the goals of the community as expressed through its zoning and planning ordinances.? Kaufmann. suora. 110 NJ. at 564. 542 A.2d 457. The decision was based in part upon the conformity. of a partitioned lot to other properties in the neighborhood, and to the municipality?s goal of ?discouraging large lot zoning in [that] area of town." Id. at 564. 542 A.2d 515i Moreover, the court said, c(2) variance stands if, after adequate proofs are presented, the board without arbitrariness concludes that the harms, if any, are substantially outweighed by the benefits." Id. at 565. 542 A.2d 457. Given our scope of review, we agree with defendant. and the trial court that the criteria for a C2 variance were not demonstrated in this case. Kaufmann is clear that the grant of approval must ?actually benefit the community in that it represents a better zoning alternative for the property." at 563. 542 A.2d 457. In this case, based on the proofs submitted, defendant concluded that rather than advancing any benefit to the community, the application would merely alleviate a hardship to the applicant which he himself created. Given the proofs and findings in this case, we find sufficient support in the record that the purposes of the MLUL set out in sub-Section(a) of N.J.S.A. 40:550-2, as well as sub-sections and would not be advanced by plaintiff's improvements. In this case, plaintiff?s expert testified that the pool and deck cannot be seen from the street or the bay. Consequently, there is *200 adequate support for the apparent conclusion by defendant that plaintiff?s improvement would not be a visual improvement to the community. There is then no apparent benefit to the community. Moreover, this plaintiff sought a variance after building the improvement without permits, after a stop order, and without any showing as to why some or all of the zoning ordinances could not have been complied with in the design and installation of a deck and pool. Such action cannot be said to advance the purpose of the MLUL, and may well be a detriment to the intent and purposes of the zoning ordinance. Cl Analysis The MLUL provides a Board of Adjustment may grant a C1 variance: [w]here: by reason of an extraordinary and exceptional situation uniquely affecting a specific .piece of property or the structures lawfully existing thereon, the strict application of any regulation would result in peculiar and exceptional practical difficulties to, or exceptional and undue'hardships upon, the developer of such ://Web2 .westlaw.oom/resu1t/ documenttext. O7&scxt=WL&r1ti=1 .. 9/2/2014 9'63 A.2d 1208 Page 10 of 12 These criteria are referred to as the ?positive criteria." See Bressman, supra, 131 NJ. at 522-23, 621 A.2d 476. In addition to requiring proof of the ?positive criteria,? the C1 variance also requires proof of what is referred to as the ?negative criteria," also found in N.J.S.A. which provides that an applicant must demonstrate ?that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zoning plan and zoning ordinance." N.J.S.A. There are then, given the facts in this case, five criteria that had to have been met before a C1 variance could have been granted to plaintiff by defendant. They are: (1) a lawfully existing structure on a specific piece of property; (2) an extraordinary**1216 and exceptional situation uniquely affecting that structure; (3) an extraordinary and exceptional situation resulting in peculiar and practical difficulties or exceptional and undue hardship if there were a strict application of the zoning code; (4) the grant of the *201 variance would have no substantial detriment to the public good; and (5) the grant of the variance would not substantially impair the intent and purpose of the . zoning plan and zoning ordinance. N.J.S.A. [1_11 After reviewing the record in this case, it is clear tous that the record supports granting a variance with respect to one of the seven variance requests made, specifically the rear yard setback with respect to the deck. None of the parties have contested that the home is a lawfully existing structure on the property. The home, as constructed, has a forty?one foot front yard set back and an eighteen foot rear yard setback. Because of the location of this lawfully existing structure on the property and the fifteen foot required rear yard setback for a deck, a strict application of the zoning ordinance would result in allowing only a three foot deck. The resulting situation would certainly present ?peculiar and exceptional practical difficulties" for the homeowner.? Further, the proofs indicate that a variance with respect to the rear yard deck setback would not be a substantial detriment to the public good or impair substantially the intent and purpose of the zoning plan and ordinance. Consequently, because the lawfully existing dwelling's placement on the lot creates an extraordinary and exceptional situation resulting in peculiar and exceptional practical difficulties to an owner who wishes to place a deck larger than three feet in his rear yard and because none of the negative criteria would be affected by this development, the variance with respect to the rear yard deck setback should have been granted. . m3, We find that while the situation as to setbacks may well constitute ?an exceptional and undue hardship? on the plaintiff, because plaintiff or his predecessor in title created the ?hardship,? the ?hardship? grounds for relief as opposed to the ?peculiar and exceptional practical difficulties" grounds is not available. Jock v. Zoning Bd. of Adiustment of TB. of Wall. 184 NJ. 562. 591. 878 A.2d 785 (2005): Dalton v. Ocean TD. Zoninq Bd. ofAdfustment, 245 453. 464. 586 A'.2d 262 certif. denied, 126 NJ. 324. 598 A.2d 884 (1991). *202 We note that N.J.S.A. states that a variance may be granted when strict application of any regulation ?would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardships upon, the developer of such (Emphasis added). The Legislature's use of the term ?or? is significant. N.J.S.A. 1:1-1 states that the construction of the law and statutes of this state, words and phrases shall be read and construed with their context, and shall, be given their generally accepted meaning, according to the approved usage of the language.? The Legislature's use of the term ?or? in N.J.S.A. between the phrases ?peculiar and exceptional practical difficulties? and ?exceptional and undue hardships? is disjunctive. See State v. Smith. 262 N.J.Suoer. 487. 506. 621 A.2d 493 certif. denied, 134 NJ. 476 634 A.2d 523 (1993) (holding ?[w]hen items in a list are joined by a comma or semicolon, with an ?or? preceding the last item, the items are disjunctive?). Therefore, a developer may seek a variance under either phrase, provided the other relevant criteria are met. To hold otherwise would render the phrase superfluous. Araqon v. Estate of Snyder. 314 N.J.Suner. 635. 640-41. 715 A.2d 1045 . . 9/2/20 14 . 963 A.2d 1208. I Page 11 of 12 (Ch.Div.19981 (holding a statute **1217 ?should be construed so that effect is given to all its provisions, such that no part will be inoperative or superfluous, 'void or [Lg] With respect to the other six variances sought by plaintiff in his application, we agree with defendant and the trial court that plaintiff failed to prove all of the C1 variance requirements were metw While plaintiff's expert testified that construction of the deck and pool within the zoning requirements was ?impossible,? there was no detail given to support this conclusion and defendant was not bound by such testimony, particularly when it had a *203 survey of the site in evidence it could peruse. El Sheer, same. 249 N.J.Suner. at 330, 592 A.2d 565. The survey raises a number of questions as to how and whether a conforming deck and pool could be placed in the eighteen foot rear yard. The combined twelve foot side yard setback variances for the dwelling does not directly relate to the construction of the deck and pool and there is not enough in the record to comment on how and why that variance could be granted or if it is required as there was some testimony the ordinance on this point may have been changed following the dwelling's construction. We are unable to discern from the record, in particular the surveys in evidence, whether a conforming deck and pool could be built in plaintiff's rear yard without a variance other than one for the rear yard deck setback, which we have already. discussed. There are no proofs regarding that other than plaintiff's expert's conclusionary opinion that it would be ?impossible.? The open question is whether the strict application of the municipality's zoning ordinance to plaintiff's desire to improve the rear yard of his property with a deck and pool results in peculiarand exceptional practical difficulties due to the size of the rear yard where the limited rear yard is the result of the apparently legal placement of the house on the lot. If plaintiff is able to demonstrate that to defendant, he must then demonstrate how he is unable to conform his specific and detailed plans to the zoning requirements without peculiar and exceptional practical difficulties. Neither plaintiff's appliCation nor defendant's denial addresses these points sufficiently. Therefore, given our interpretation of the criteria for a C1 variance as it pertains to plaintiff's application in this case and the failure of both plaintiff and defendant to address the criteria, we reverse the order affirming the denial of the rear yard setback variance for the deck and remand the matter to the trial court so that it in turn can remand the applicatiOn to defendant for further proceedings Consistent with our interpretation of the C1 requirements. We affirm the trial court's order with respect to the denial. of the C2 variance. On remand to defendant, plaintiff is to submit to defendant within sixty days of our decision a current survey showing the dimensions of the existing deck and pool, as well as the effect of the bulk zoning ordinances on the existing deck and pool. Plaintiff is also to submit within that same timeframe any modifications to the existing improvements he wishes to make in order to *204 attempt to conform his application for a deck and pool to the zoning ordinances. We do not imply in our remanding the matter as to how defendant should pass on the question of the variances. The purpose of our remand is so that both plaintiff and defendant can, in accordance with the appropriate criteria of C1, analyze plaintiff's application, as it currently stands and as it may be amended. From our review of the record, we see no need to assume-jurisdiction instead of remanding the matter. Defendant's questions as to the history of the matter do not M1.213 evidence an inability on defendant's part to fairly and appropriately weigh the evidence. Accordingly, we affirm in part, reverse in part, and remand the matter for further proceedings consistent with the within opinion. We do not retain jurisdiction. Wilson v. Brick Tp. Zoning Bd. of Adjustment 9/2/2014 963 A.2d 1208 405 N.J.Super. 189, 963 A.2d 1208 Page 12 of 12 Judges, Attorneys and Experts (Back to top) Judges Attorneys Exoerts Judges 0 Lyons, Hon. Thomas N. State of New Jersey Superior Court, Appellate Division Trenton, New Jersey 08625 Litigation Historv Report Judicial Reversal Report Profiler Payne, Hon. Edith K. State of New Jersey Superior Court, 5th Vicinage Newark, New Jersey 07102 Litigation History Report Judicial Reversal Report Judiciai?Expert Challenge Report Profiler Stern, Hon._ Edwin H. Litigation History Report Judicial Reversal Report 1 Profiler Attorneys Attorneys for Appellant Io Pansulla, Robert J. Believiile, New Jersey 07109 Liticlation History Report Profiler Attorneys for Respondent 0 Fitzsimmons, Kenneth B. Point Pleasant Beach, New Jersey 08742 Litigation Histopy Report Pro?ler Experts Charles checkstan?d design specialist WA 98046 Expert Evaluator Report Profiler END OF DOCUMENT West Reporter Imacie (PDF) -. XL Get . 1 Adobe__Reac_ie_r is required to view PDF images. 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 9/2/2014 #3-4 - Factual and Legal Contentions FACTUAL CONTENTIONS I The Applicants Saddy Family, LLC and 2-4-6?8 Boulevard, LLC (?Applicants?) applied for a renovation and expansion of the existing Merge bar/restaurant. The use is permitted in the Retail Business (RB) Zone but required a front-yard-setback variance on the Boulevard of 1/ 10th of a foot when 10 feet-is required and setback on the Franklin Avenue side of the property of 1/10?h of a foot when 10 feet is required. Applicants, the owners of the property located 302 Boulevard, Seaside Heights, New Jersey, also known?as Lots 66 and 51 in Block 4.01 as designated on the Official Tax Map of Seaside Heights, New Jersey (?the Site?), applied to the Borough of Seaside Heights Planning Board (?Board?) for Preliminary and Final Site Plan Approval and the above~referenced bulk variances (?Application?); I Public hearings were held on April 23, 2014 and May 28, 2014. During the hearings the Board entertained the testimony of John Saddy, the principal of - Saddy Family, LLC and the prospective general manager of Merge; Edward Angster, P.E., P.P, L.S., R.A., the Applicant?s engineer/planner; and Vincent Craparotta, a property owner within 200 feet of the Site, and the principal of Plaintiff, C.S. Boulevard Properties, Inc., and the sole objector to the Application (?Objector?). At the conclusion of the testimony, the Applicant represented that I they would be willing to amend the plans to address the Obj ector?s and the Board?s concerns, including, but not necessarily limited to, constructing the front-yard setback in accordance with the setback of a nearby restaurant, Hemingway?s (also owned by the Objector); moving the proposed HVAC unit and . constructing a knee wall around the HVAC unit; adding a permanent dining room; moving the proposed bar and expanding upon the current kitchen; adding a refuse container on the east side of the structure a minimum of '3 2? from Objelctor?s property line; using reduced-sized recycling containers; and complying with the suggestions of the Township Engineer as set forth in the Technical Revisions and/ or Corrections section of the Engineer?s April 21, 2014 memorandum and set forth in the Resolution of Approval attached hereto at Tab 1. At the conclusion of the hearings, the Board voted to grant the Application and granted a variance for the rear-yard setback, a variance for the front~yard setback and granted a design waiver for off?street parking and further required the Applicant to submit revised plans incorporating the agreed?upon modifications. #3-4 - Factual and Legal Contentions FACTUAL CONTENTIONS The Applicants Saddy Family, LLC and 2-4?6?8 Boulevard, LLC (?Applicants?) applied for a renovation and expansion of the existing Merge bar/restaurant. The use is permitted in the Retail Business (RB) Zone but required a front-yard setback variance on the Boulevard of 1/ 10th of a foot when 10 feet is required and setback on the Franklin Avenue side of the property of 1/10th of a foot when 10 feet is required. Applicants, the owners of the property located 302 Boulevard, Seaside Heights, New Jersey, also known as Lots 66 and 51 in Block 4.01 as designated on the Of?cial Tait Map of Seaside Heights, New Jersey (?the Site?), applied to the Borough of Seaside Heights Planning Board (?Board?) for Preliminary and Final Site Plan Approval and the above-referenced bulk variances (?Application?). Public hearings were held on April a3, 2014 and May 28, 2014. During the I hearings the Board entertained the testimony of John Saddy, the principal of Saddy Family, LLC and the prospective general manager of Merge; Edward Angster, RE, PP, L.S., R.A., the Applicant?s engineer/planner; and Vincent Craparotta, a property owner within 200 feet of the Site, and the principal of ?Plaintiff, C.S. Boulevard Properties, Inc., and the sole objector to the Application (?Obj ector?). At the conclusion of the testimony, the Applicant represented that they would be willing to amend the plans to address the Objector?s and the Board?s concerns, including, but not necessarily limited to, constructing the front-yard setback in accordance ?with the setback of a nearby restaurant, Hemingway?s (also owned by the Objector); moving the proposed HVAC unit and constructing a knee wall around the HVAC unit; adding a permanent dining room; moving the proposed bar and expanding upon the current kitchen; adding a refuse container on the east side of the structure a minimum of 32? from Objector?s property line; using reduced-sized recycling containers; and complying with the suggestions of the Township Engineer as set forth in the Technical Revisions and/ or Corrections section of the Engineer?s April 21, 2014 memorandum and set forth in the Resolution of Approval attached hereto at Tab 1. At the Conclusion of the hearings, the Board voted to grant the Application and granted a variance for the rear~yard setback, a variance for the front-yard setback and granted a design waiver for off?street parking and further required the Applicant to submit revised plans incorporating the agreed-upon modi?cations. #3-4 - Factual and Legal Contentions FACTUAL CONTENTIONS The Applicants Saddy Family, LLC and 2?4?6-8 Boulevard, LLC (?Applicants?) applied for a renovation and expansion of the existing Merge bar/ restaurant. The use is permitted in the Retail Business (RB) Zone but required a front?yard setback variance on the Boulevard of 1/1061 of a foot when 10 feet is required and setback on the Franklin Avenue side of the property of 1/ 10?Eh of a foot when 10 feet is required. Applicants, the owners of the property located 302 Boulevard, Seaside Heights, New Jersey, also known as Lots 66 and 51 in Block 4.01 as designated on the Of?cial Tax Map of Seaside Heights, New Jersey (?the Site?), applied to the Borough of Seaside Heights Planning Board (?Board?) for Preliminary and Final Site Plan Approval and the above?referenced bulk variances (?Application?). Public hearings were held on April 23, 2014 and May 28, 2014. During the hearings the Board entertained the testimony of ohn Saddy, the principal of Saddy Family, LLC and the prospective general manager of Merge; Edward Angster, P.E., P.P, L.S., R.A., the-Applicant?s engineer/ planner; and Vincent Craparotta, a property owner within 200 feet of the Site, andthe principal of Plaintiff, 08. Boulevard Properties, Inc, and the sole objector to the Application (?Obj ector?). At the conclusion ,of the testimony, the Applicant represented that they would be willing to amend the plans to address the Obj ector?s and the Board?s concerns, including, butnot necessarily limited to, constructing the front-yard setback in accordance with the setback of a nearby restaurant, Hemingway?s (also owned by the Objector); moving the proposed HVAC unit and constructing a knee wall around the HVAC unit; adding a permanent dining room; moving the proposed bar and expanding upon the current kitchen; adding a refuse container on the east side of the structure a minimum of 32? from Objector?s property line; using reduced-sized recycling containers; and complying with the suggestions of the Township Engineer as set forth in the Technical Revisions and/ or Corrections section of the Engineer?s April 21, 2014 memorandum and set forth in the Resolution of Approval attached hereto at Tab 1. At the conclusion of the hearings, the Board voted to grant the Application and granted a variance for the rear?yard setback, a variance for the front?yard setback and granted a design waiver for off-street parking and further required- the Applicant to submit revised plans incorporating the agreed-upon modi?cations. #3-4 - Factual and Legal Contentions FACTUAL CONTENTIONS The Applicants Saddy Family, LLC and 2-4-6-8 Boulevard-LLC (?Applicants?) applied for a renovation and'expansion of the existing Merge bar/ restaurant. . The use is permitted in the Retail Business (RB) Zone but required a front?yard setback variance on the Boulevard of 1/ 10th of a foot when 10 feet is required and setback on the Franklin Avenue side of the property of 1/ 10?[11 of a foot when 10 feet is required. Applicants, the owners of the property located 302 Boulevard, Seaside Heights, New Jersey, also known as Lots 66 and 51 in Block 4.01 as designated on the Official Tax Map of Seaside Heights, New Jersey (?the Site?), applied to the Borough of Seaside Heights Planning Board (?Board?) for Preliminary and Final Site Plan Approval and the above?referenced ?bulk variances (?Application?). Public hearings were held on April 23, 2014 and May 28, 2014. During the hearings the Board entertained the testimony of John Saddy, the principal of Saddy Family, LLC and the prospective general manager of Merge; Edward Angster, P.E., P.P, L.S., R.A., the Applicant?s engineer/planner; and Vincent Craparotta, a preperty owner within 200 feet of the Site, and the principal of Plaintiff, C.S. Boulevard PrOperties, Inc., and the sole objector to the Application (?Objector?). At the conclusion of the testimony, the Applicant represented that they would be willing to amend the plans to address the Objector?s and the Board?s concerns, including, but not necessarily limited to, constructing the front-yard setback in accordance with the setback of a nearby restaurant, Hemingway?s (also owned by the Obj ector); moving the proposed HVAC unit and constructing a knee wall around the HVAC unit; adding a permanent dining room; moving the proposed bar and expanding upon the current kitchen; adding a refuse container on the east side of the structure a minimum of 32? from Objector?s property line; using reduced-sized recycling containers; and complying with the suggestions of the Township Engineer as set forth in the Technical Revisions and/ or Corrections section of the Engineer?s April 21, 2014 memorandum and set forth in the Resolution of Approval attached hereto at Tab 1. At the conclusion of the hearings, the Board voted to grant the Application and granted a variance for the rear-yard setback, a variance for the front?yard setback and granted a design waiver for off?street parking and further required the Applicant to submit revised plans incorporating the agreed?upon modi?cations. Factual and Legal Contentions of Seaside Heights Planning Board. Defendants/Applicants, Saddy Family, LLC and 2?4?6?8 Boulevard, LLC ?led an application with the Seaside Heights Planning Board for preliminary and ?nal site plan approval with variances I and/or waivers effecting premises known as Lots 66 and 51 in Block 4.01 as designated on the of?cial tax map of Seaside Heights, Commonly known as 302 Boulevard, Seaside Heights, New Jersey. The property in question is located on the east side of the Boulevard between Franklin and Hamilton Avenues and has an area of approximately 20,000 sq. ft. The site contains an existing and closed former bar known as ?Merge? on the south side (Franklin Avenue side) and a gravel parking lot on the north side (Hamilton Avenue side) of the property. Plaintiff, C.S. Boulevard Properties, Inc., is a property owner within 200 ft. of the propertyin question and therefore quali?es as an interested party under the Municipal Land Use Law. The property in question is located in the Retail Business (RB) Zone. Bars and taverns are permitted uses in the RB Zone provided the same are incidental to a restaurant use. The applicant af?rmatively established that he will operate the site as a restaurant and agreed, at the suggestion of the Board, to add a permanent dining area which will contain tables and chairs con?gured in a way that typically represents a dining room, and which tables and chairs will not be removed for the purposes of dancing or entertainment. The applicant required certain bulk variances for rear yard and front and side yard setbacks. The public hearing was held on April 23', 2014' and the applicant and the objector were heard personally and through counsel. The Board engaged in an interactive dialogue with the applicant and objector in order to address a variety of concerns raised during the hearing. As a result, the applicants agreed to revise the hunt yard setbacks and building facade to hem accordance with other comparable establishments along the Boulevard in Seaside Heights, to construct a knee wall to screen existing HVACkompreSsor units on the roof from the plaintiff?s property to east, to move new HVAC units to an alternate location to reduce noise and to further screen the same. At the conclusion of the public hearing, the Board voted to approve the application. On May 28, 2014, the Board met again in a public hearing to memorialize the application. Plaintiff and defendants/ applicants also appeared at that time and Were both heard on the form of the Resolution. The Board thereafter memorialized the Resolution. The actions of the Board were reasonable, appropriate, and grounded upon substantial credible evidence in the record. In addition, the approval granted by the Board was the result of a dialog between plaintiff and defendants/ applicants which resulted in a land use approval designed to accommodate the interest of the parties, the public and in keeping with the character of the historic land uses along the Boulevard in the Borough of Seaside Heights. I William T. Hiering (1946?2005) Frank I. Dupignac, Jr. Richard D. Stanzione Certi?ed Civil Trial Attorney Hiering, Dupignac, Stanzione, Dunn Beck, P.C. ATTORNEYS AT LAW Lynne A. Dunn Also Admitted in FL PA Rule 1:40 Quali?ed Mediator Michael R. Beck Also Admitted in NY Paige E. Baran Also Admitted in NY Michael R. Stanzione Also Admitted in PA September 8, 2014 Hon. Vincent J. Grasso, A.J.S.C. Superior Court of New Jersey Courtroom 211d Floor Ocean County Court House PO Box 2191 Toms River, New Jersey 08754 ?Re: C.S. Boulevard Properties, LLC v. The Borough of Seaside Heights Planning Board; Saddy Family, LLC and 2-4-6-8 Bouelvard, LLC Docket Number PW Dear Judge Grasso: . Enclosed please ?nd original and one copy of Pretrial Memo on behalf of defendants Saddy Family, LLC and 2?4-6-8 Boulevard, LLC, together with original and two cepies of defendants? Factual Statement, with respect to the above matter. By way of-a copy of this letter I are providing each my adversaries with a copy of the defendants? pretrial memo. Thanking you, I remain, ReSpectfully yours, a IGNAC, DUNN BECK, P.C. - RICHARD D. STAN ZIO {Hide RDS/lmd Enos. cc: Guy Ryan, Esquire (w/enc. Edward F. Liston, Esquire (W/enc.) pretrial memo'dc?c 64 Washington Street, Toms River, NJ 08753 732.349.1212 -- 732.349.1217 - - 732.349.1240 Real Estate FILING ATTORNEY: RICHARD D. STANZIONE, ESQUIRE N.J. ATTORNEY ID NO. 012951974 HIERING, DUPIGNAC, - STANZIONE, DUNN BECK, P.C. 64 Washington Street Toms River, New Jersey 08753 732-349-1212 Attorneys for Defendants, Saddy Family, LLC and 2-4-6-8 Boulevard, LLC C.S. BOULEVARD PROPERTIES, I LLC, a limited liability company of the State of New Jersey, Plaintiff, - V. THE BOROUGH OF SEASIDE HEIGHTS PLANNING SADDY FAMILY, LLC, and 2-4?6-8 BOULEVARD, Defendants. 1. NATURE OF ACTION: Action in Lieu of Prerogative Writs. SUPERIOR COURT OF NEW. JERSEY LAW - OCEAN COUNTY DOCKET NO. CIVIL ACTION PRETRIAL MEMORANDUM OF DEFENDANTS SADDY FAMILY, LLC AND 2-4?6-8 BOULEVARD, LLC 10ADMISSIONS AND STIPULATIONS: None. FACTUAL AND LEGAL CONTENTIONS: Annexed hereto. DAMAGES AND INJURY CLAIMS: None. AMENDMENTS: None. ISSUES AND EVIDENCE PROBLEMS: See attached ?Issues and Evidence Problems.? LEGAL ISSUES ABANDONED: None. EXHIBITS: . marked below. EXPERT WITNESSES: None. Trial is based on transcripts of hearings held on April 23, 2014 and May 28, 2014. BRIEFS: As ordered. ORDER OF OPENING AND CLOSING: Usual. ANY OTHER MATTERS AGREED UPON: I None. 14. 15. 16. 17. 18. 19. TRIAL COUNSEL: Richard D. Stanzione, Esquire ESTIMATED LENGTH OF TRIAL: One-half day. WEEKLY CALL FOR TRIAL CALL: As scheduled. ATTORNEYS FOR PARTIES CONFERRED 0N MATTERS THEN AGREED UPON: Attorneys for parties have not conferred. IT IS HEREBY CERTIFIED THAT ALL PRETRIAL DISCOVERY HAS BEEN COMPLETED, EXCEPT: None. PARTIES WHO HAVE NOT BEEN SERVED AND PARTIES WHO HAVE DEFAULTED: 1 None.- HIERING, DUPIGNAC, BECK, P.C. Dated: September 8, 2014. #3-4 - Factual and Legal Contentions FACTUAL CONTENTIONS The Applicants Saddy Family, LLC and 2-4-6-8 Boulevard, LLC (?Applicants?) applied for a renovation and expansion of the existing Merge bar/ restaurant. The use is permitted in the Retail Business (RB) Zone but required a front-yard setback variance on the Boulevard of 1/ 10?u of a foot when 10 feet is required and setback on the Franklin Avenue side of the property of 1/101?11 of a foot when 10 feet is required. Applicants, the owners of the property located 30-2 Boulevard, Seaside Heights, New Jersey, also known as Lots 66 and 51 in Block 4.01 as designated on the Of?cial Tax Map of Seaside Heights, New Jersey (?the Site?), applied to the Borough of Seaside Heights Planning Board (?Board?) for Preliminary and Final Site Plan Approval and the above-referenced bulk variances (?Application?). Public hearings were held on April 23, 2014 and May 28, 2014. During the hearings the Board entertained the testimony of John Saddy, the principal of Saddy Family, LLC and the prospective general manager of Merge; Edward Angster, P.E., P.P, L.S., R.A., the Applicant?s engineer/ planner; and Vincent Craparotta, a property owner within 200 feet of the Site, and the principal of Plaintiff, C.S. Boulevard Properties, Inc., and the sole objector to the Application (?Objector?). At the conclusion of the testimony, the Applicant represented that they would be-willing to amend the plans to address the Obj ector?s and the Board?s concerns, including, but not necessarily limited to, constructing the front-yard setback in accordance with the setback of a nearby restaurant, Hemingway?s (also owned by the Obj ector); moving the proposed HVAC unit and constructing a knee wall around the HVAC unit; adding a permanent dining room; moving the proposed bar and expanding upon the current kitchen; adding a refuse container on the east side of the structure a minimum of 32? from Objector?s preperty line; using reduced-sized recycling containers; and complying with the suggestions-of the Township Engineer as set forth in the Technical Revisions and/ or Corrections section of the Engineer?s April 21, 2014 memorandum and set forth in the Res'olution of Approval attached hereto at Tab 1. At the conclusion of the hearings, the Board voted to grant the Application and granted a variance for the rear-yard setback, a variance for the front-yard setback and granted a design waiver for off-street parking and further required the Applicant to submit revised plans incorporating the agreeduupon modi?cations. LEGAL CONTENTION I. THE APPROVAL OF THE VARIANCES REQUESTED WAS NOT ARBITRARY, CAPRICIOUS AND UNREASONABLE. Applicant satis?ed the relevant standards applicable to set back variance applications pursuant to N.J.S.A. and 70c(2) and as set forth in Wilson V. Brick Township Zoning Board of Adjustment, 405 NJ. Super. 189 (App. Div. 2009), affd, 2011 WL 2410049 Super.A.D. May 06, 2011) (attached hereto at Tab 2 pursuant to the court rules). Defendant Board applied the applicable standards and issued an approval that is not arbitrary and capricious, as evidenced in the hearing transcripts and con?rmed in the Resolution of Approval. #7 Issues and Evidence Problems 1. Was the approval of the Application arbitrary, capricious and unreasonable? . 2. Was the approval of the Application supported by substantial credible evidence in the record below? - 3. Did the Board apply the proper variance standards to the Application? #0 Evidence List 1. Evidence submitted in connection with Saddy and 2-4-6-8?s Application: A. Application; B. April 8, 2014 Site Plan prepared by Edward F. Angster, P.E., P.P, L.S., R.A. entitled, ?Site Plan, Lot 66 and Westerly 100 Lot'51, Block 4.01, Seaside Heights, Ocean County, New Jersey?; I C. December 10, 2013 Survey prepared by Edward F. Angster, RE, PP, L.S., R.A. entitled, ?Survey of Property, Lot 66, Block 4.01, Seaside Heights, Ocean County, New Jersey; D. April 24, 2012 Survey prepared by Edward F. Angster, P.E., P.P, L.S., R.A. entitled, ?Survey of PrOperty, Lot 51, Block 4.01, Seaside Heights, Ocean County, New Jersey? E. April 8, 2014 plans prepared by Edward F. Angster, P.E., P.P, L.S., R.A. entitled, ?Proposed Plans for Temptations, Block 4.01 and Lots 66 and 51, 302 Boulevard, Seaside Heights, Ocean County, New Jersey; Copy of application to Ocean County Planning Board. 2. Transcripts from the April 23, 2014 and May 28, 2014 hearings; 3. Resolution No. 14-10 of the Seaside Heights Land Use Board adopted on May 28, 2014. Family, LLC and 2-4-6-8 Boulevard, LLC et als adv. C.S. Boulevard Properties, LLC\Pleadings\Pretrial Memo.doc EXHIBIT 1 Bl. 4.01 Lot 66 308 Boulevard - Saddy Fam?ilyTrust,LLC 4/23/2014 RESOLUTION NO. 14? 10 SEASJDE HEIGHTS LAND USE BOARD WHEREAS, SADDY FAMILY, LLC and 2-4-6-8 BOULEVARD, LLC, whose mailing address is 709 Woodchuck Lane, Toms River, New Jersey, 0875 8, have applied for Preliminary and Final Site Plan with variances affecting premises located on Lots 66 and 51 in Block 4.01, as designated on the Official Tax Map of Seaside Heights, commonly known as 302 Boulevard, Seaside Heights, New Jersey; and WHEREAS, such proof of service as may be required by New Jersey Statutory and Municipal Ordinance requirements upon appropriate property owners and governmental bodies has been furnished; and I WHEREAS, a public hearing was held on the said application on April 23, 2014 in the Municipal Building of Seaside Heights and testimony and exhibits were presented on behalf of the applicant and all interested parties having been heard; and WHEREAS, the said Board, having considered said application, testimony, exhibits submitted, and ?om its inspection of the site, itmakes the following determinations: 1. The applicant was represented by Richard Stanaione, Esq. 2. John Saddy and the applicant?s engineer/planner testi?ed in support of the application. The area of development has an area of approximately 20,000 square feet. 3. The area of development is in the Retail Business (RB) Zone. - 4. The applicant seeks Preliminary and Final Maj or Site Plan Approval associated with additions to and expansion of the existing Merge bar/restaurant building including new outdoor seating areas. w/ I 5. CS. Boulevard Properties, Inc, a property owner within 200 feet appeared in opposition to the application. Edward F. Liston, Jr., Esq, appeared on behalf of the objector. The applicant?s principal, John Saddy, testi?ed as follows, to wit: A. He will be the general manager of the operation. B. The land is owned by the col-applicant, Robert Bennett of 2-4-6-8 Boulevard, LLC and SaddyFamily, LLC. The liquor license is owned by Temptations, I LLC. C. He has an agreement to have the restaurant within the existing operated by the operators of the former Diamond?s Restaurant, ivhich was located at the Surf Club in Ortley Beach, before it was destroyed by Hurricane Sandy. D. The three bars along the Boulevard in the existing building will be combined into one front bar. Along the patio, the applicant proposes to have an outdoor bar. He intends to have separate bathroom facilities for private parties. E. The applicant intends to also have comedy club events and mystery theatre events, in addition to dining. F. The applicant wishes to expand the existing kitchen by three to four times the size, but due to time constraints will utilize the existing kitchen for'2014. G. The applicant proposes backlighted signs and neon signs similar to existing establishments in the area. H. The applicant will utilize a recycling company and reduced size dumpsters to recycle all recyclable materials. The applicant will have suf?cient space for these dumpsters. I. The applicant will utilize the Borough?s trash collection. .T. The applicant anticipates two liquor deliveries per week, but will have daily bread deliveries during the summer. K. Mr. Saddy testi?ed about his intention to construct future phases of the project. L. The applicant is prepared to add benches and shade trees consistent the streetscape along the Boulevard. - M. The applicant will maintain the existing gravel parking lot, likely to be. utilized via self and valet parking. I N. Mr. Saddy testi?ed that the facility will function principally as a restaurant during the hours of operation. - 0. Upon cross-examination, Mr. Saddy testi?ed that phase one will constitute an expansion of the existing building by approximately 30 feet to the north. P. Mr. Saddy testi?ed that he will have Diamond?s Restaurant offer a limited menu for restaurant purposes. He classi?ed it as a bar and restaurant, not as a The tables are designed to slide underneath a stage, so the dining area can be converted into a dance ?oor. The trash area is located adjaCent to a residence to the east, the swim as has been existing for 30 years and as was purchased by the current owner next to a Q. Edward F. Angster, P.E., P.P-., L.S., R.A., testi?ed in support of the application. He testi?ed regarding the cantilever roof (overhang) and the sliding patio roof. R. The applicant proposes a front yard setback on the Boulevard of 1/ 1 0"?1 of a foot, where 10 feet is required. The applicant also proposes a 1/ 10th of a foot setback on the Franklin Avenue side, with a 42? glass wall or railing, With pull down canvas sides, and the rolling patio roof. I S. The Applicant agreed to a condition that approval will be subject to a grant of an additional sewer lateral from the borough, as required. An additional transformer will be required for the building expansion, and the applicant agrees to comply with approvals from the borough electrical department with regard to the transformer location, which shall be re?ected as a note on the plans. The kitchen will be ekpanded into the current gravel parking area. T. New HVAC units are proposed to be located on the ?at roof, and will be restricted to NJDEP standards of SO Db standards and, if necessary, the applicant will construct a knee wall for sound deadening purposes as well as aesthetics. U. The applicant proposes two trench drains of approximately 100 feet long each, 18 inches wide and 2 feet deep. The existing site is almost 100% impervious, so the applicant will be improving storm water management and prevent adverse effects on adjacent properties. V. The applicant agreed to comply with the Technical Revisions and/or Corrections section in the review letter of the board engineer, dated April 21, 2014. W. Upon cross-examination, Mr. Angster testi?ed that the building is currently set back 10 feet from the property line along the Boulevard, presently complying with the Borough?s set back requirements. The applicant is proposing to have essentially a zero setback from the property line, leaving eight feet of area for sidewalk to the curb. X. The board?s engineer clari?ed the phasing of the project: Phase 1 will 4 include the existing second ?oor on the existing building. The glass wall along the Boulevard will also be installed as part of Phase 1. The curb cut will be eliminated on . the Boulevard and access to the gravel lot will be accessed from the curb cut on Hamilton Ave. The phasing plans should be addressed on the architectural plans and the applicant agreed. I Y. VinCent Craparotta, Jr., a property owner within 200 feet, testi?ed in opposition to the application. He also owns the property where Hemingway?s is located. The liquor license for. HemmingWay?s is owned by his wife. The area in front of Hemingway?s is 17 feet to the curb, with a 5 foot fenced in area, leaving 12 feet from the fencing to the curb. z. The Objector introduced Exhibit 01. MI. Craparotta testi?ed that the proposed sidewalk size in front of proposed site will be reduced to 7 feet, and that part of that area is occupied by benches and trees, making the area insufficient for pedestrian I access, in Mr. Craparottais opinion. AA. The Obj ector also introduced Exhibit 0-2 containing photos of the front yard setbacks in ?cnt of various including Merge, the Pool Club, Savor/Karina and the Bamboo Bar. Mr. Craparotta testi?ed that the applicant plans to build out into the front yard setback with approximately 10 feet of pavers which-were installed by the Borough. Mr. Craparotta testi?ed that the reason the Borough had increased, the size of the sidewalks during the prior Boulevard renovations was for pedestrian safety. He testi?ed that by allowing encroachment into this area, pedestrian safety would be reduced. I BB. The Obj ector introduced Exhibit 0-3 which were various photographs of side yard setbacks at various bars. including the Bamboo Bar, Hemingway?s, Savor, The Pool Club and the subject property. CC. The Obj ector introduced Exhibit 0-4 which contained photographs of the roofs of various liquor license establishments showing HVAC units and other utilities on such clubs as the Bamboo Bar, Merge, I-lemmingway?s, Savor and others. DD. Mr. Craparotta testi?ed that the Bamboo Bar and Savor have 40 feet of parking lots as buffers between their HVAC units on the roof and the neighboring properties. In contrast, the applicant has existing HVAC units on a ?at roof within 4 feet of a residential property, which is owned by the objector. BE. The Obj ector introduced Exhibit 0-5 which was a marked up site plan of the applicant?s property. Mr. Craparotta testi?ed that he believed the applicant is actually expanding the into a residential area. He also testi?ed that the architectural plans submitted by the applicant are vague and he would expect the applicant to have more detail if the applicant actually planned to Open the establishment this summer. I I RF. Upon cross examination, Mr. Craparotta admitted that he would still be objecting to the project even if the railings along the Boulevard were moved back 12 feet from the curb line. I GG. Upon further cross examination, Mr. Craparotta agreed that he Would'be I satis?edlif the applicant would move the hew HVAC systems to the center of the project, with a redesigned ?at roof in the center, with a barrel roof in the front and rear. The applicant thereafter agreed to modify the plans. EH. Mr. Craparotta testi?ed that he believes the side yard setbacks need to be 6 feet in order to have adequate ?re exists especially with a 30? or 36? doors. II. The Board engaged in an interactive dialogue with the applicant and suggested the applicant make revisions to the plans- As a result thereof, the applicant agreed to construct a front yard setback to the railings and building facade in accordance with the setback at Hemingway?s from the curb to the railing and building facades of the private establishment area. The applicant also agreed to construct a knee wall to screen the existing HVAWcompressor units on the ?at roof of the existing building for screening from the Obj ector?s preperty to the east. The applicant further agreed to move the new HVAC units for the existing building to the center on a ?at roof, between a front and rear barrel roof on the existing building. The applicant also agree to locate the new HVAC system units and compressor units, for the building expansion 32? to the north, on the ?at roof over the expanded kitchenfbathroom area adjacent to the applicants property to the east and install a knee wall to screen the new units on the building expansion to the north. H. In addition, to address concerns about whether or not the applicant would construct a facility that. complied with the provisions of the RB Zone, and was not a the applicant agreed to add a permanent dining room of approximately 32 feet in length to the north of the existing building, and to amend the site plan application accordingly. In addition, the applicant agreed to move the pr0posed bar that was intended to be part of the ?outside enclosure? to the north as part of Phase 2. I The ?outside enclosure? will now be enclosed into a permanent dining area and the current kitchen will be expanded. I K. The Board directed that the Board Engineer verify the front and side yard setbacks for railings and building facade and that any-approval provided that the setbacks for front and side yards must be the same as other businesses along the Boulevard, in particular Hemmingway?s. The applicant further agreed to comply with all Health - Department conditions. LL. Robert J. Bennett, Jr., principal of 2-4-6-8 Boulevard, LLC, testi?ed that he thought that the Objector bought the residential property to the east of the application Speci?cally to object the project just like he has purchased other properties near the applicant?s businesses in order to object. MM. The applicant agreed to add a refuse enclosure on the east side of the property a minimum of 32? distant from the Objector?s' property line and the applicant will return to the Board, if necessary, for site plan amendment but the applicant wishes to still maintain the south refuse area for loading and unloading. NN. The applicant had previously constructed a billboard on telephone pole size pilings facing to the north. The Board agreed to allow the applicant 120 days to either seek Board approval for the continued use of the pilings as part of another permitted use or to remove them. 00. The applicant agreed to provide revised plans to comply with all of the foregoing set forth above. 7. The following person(s) appeared to question the applicant and make statements with regard to the proposal: None, other than as detailedabove. 8. The Board reviewed the following evidence, to wit: A. The application. B. ?Site Plan, Lot 66 and Westerly 100 FT Lot 51, Block 4.01, Seaside Heights, Ocean County, New Jersey?. The drawings, consisting of two (2) sheets, have been prepared by Edward F. Angster, NJPE #13450. The drawings are dated April 8, 2014 with no revision dates indicated. I C. f?Survey of Property, Lot 66, Block 401, Seaside Heights, Ocean County, New Jersey?. The drawing, consisting of one (1) sheet has been prepared by Edward F. Angster, #13450. The drawing is dated December 10, 2013 with no revision dates indicated. I D. ?Survey of Property, Lot 51, Block 4.01, Seaside Heights, Ocean County, New Jersey?. The drawing, consisting of one (1) sheet has been prepared by Edward F. Angster, #13450. The drawing is dated April 24, 2012 with no revision dates indicated. B. ?Proposed Plans for Temptations, Block. 4.01 and Lots 66 and 51., 302 I Boulevard, Borough of Seaside Heights, Ocean County, New Jersey?. The drawings, consisting of three (3) sheets, has been prepared by Edward F. Angster, NJRA #06316. The drawings are dated April it, 2014 with no revision dates indicated. F. Copy of application to Ocean County Flaming Board. - 9. The Board makes the following ?ndings, to wit: A. This application does not require a use variance pursuant to 40:5 5D?70d as bars and taverns are permitted uses in the RB Zone provided the same are incidental. to a restaurant use and the applicant af?rmatively testi?ed that he will Operate the site as a restaurant and agreed, at the suggestion of the Board, to add a permanent dining area, which will contain tables and chairs configured in a way to typically represent a dining room, and which tables and chairs will not be removed for the purpose of dancing or type entertainment. B. The application requires the following bulk variance. for a rear yard setback where 3 feet is required and 2.0 feet are existing-and pr0posed. Borough Code Section C. The application requires a bulk variance from the front yard setback requirements Were 10 feet is required, where 9.6 feet is existing from the Boulevard and less than 10 feet is preposed along Hamilton Avenue, Franklin Avenue and along the Boulevard. Borough Code Section D. - This "application requires a design waiver for off-street parking, Borough Code Section where retail business uses shall supply parking at one parking space for 500 square feet of gross ?oor area, and where the applicant proposes no formal paved and striped off-street parking. E. The purposes of the Municipal Land Use Law would be advanced by the deviation from the. zoning ordinance requirements for the approval of the variance. The variance can be granted without substantial detriment to the public good, the bene?ts of the deviation will substantially outweigh any detriment and the variance will not substantially impair the intent and purposes of the zoning plan and zoning ordinance of the Borough of Seaside Heights. i. . The Board finds that the applicant has compromised with applicant?s neighbors by agreeing to construct a knee wall to screen the existing HVAV/compressor units on the ?at roof of the existing building for screening from the Objector?s property to the east. The applicant further agreed to move the new HVAC units for the existing 10 building to the center on a ?at roof, between a front and rear barrel roof on the existing building. The applicant also agree to locate the new HVAC system units and compressor units, for the building expansion 32? to the north, on the ?at roof over the expanded kitchen/bathroom area adjacent to the applicants property to the east and install a knee wall to screen the new units on the building expansion to the north. - The applicant also agreed to use reduced sized recycling refuge containers, by complying with Health Department conditions, by adding a refuge enclosure .on the east side a "minimum of 32? distant from the Objector?s property line, by maintaining but limiting the south refuge area for loading and unloading of products and supplies, by adding a permanent dining room and by adjusting the setbacks from its original plans. G. The Board ?nds that the relief requested is not of such a magnitude as to be _a detriment to the public good nor an impairment of the intent and purpose of the zone plan. H. - The bulk variances referred to above can be granted without subatantial detriment to the public good becauSe the same are consistent, as amended, with existing setbacks along the Boulevard for _similar businesses in the surrounding area. i I. The design waiver for parking can be granted because the Board ?nds that the current metered spaces on public streets in the area as well'as the availability of off- street private parking lots adequately supports the need for public parking. I The site previously operated as a without off?street parking and several surrounding I restaurants/bars inthe RB Zone likewise successfully operate and accommodate patrons without off-street parking. I. With regard to the previously-constructed billboard on telephone pole size 11 pilings facing to the north, the applicant shall have 120 days from the date of adOption of this resolution to either seek Board approval for the continued use of the pilings as part of another permitted use or to remove them. NOW, THEREFORE, BE IT RESOLVED, by this Board, based on the ?ndings herein above stated, it docs hereby grant the application subject to the following conditions: A. Applicant should obtain any other approvals with respect to the submission from any other Federal, County, State or Municipal Agency having jurisdiction over same, including approvals, if any, for the glass wall as may be required by virtue of its location adjacent to a state highway and county roadway. B. Applicant. should re-subrnit this entire proposal should there be any deviation from this Resolution or the submitted documents, which are hereby made a part hereof and shall be binding on the applicant. C. Applicant shall construct at applicant?s sole cost and expense all improvements re?ected on the submitted documents. D. The relief granted hereunder shall be rendered null and void should the applicant fail to commence construction within 1 year of the date of this Resolution. E. The applicant shall comply with all representations and agreements made by the applicant or the applicant?s representative during the consideration of this application. F. The applicant shall comply with all of the Engineer?s conditions as set forth in the Engineer?s memo dated April 21, 2014 in the ?Technical Revisions andfor Corrections? Section. G. The applicant shall redesign the project in accordance with the agreements reached with the Board at the public hearing, including but not limited to, redesigned front and side yard setbacks, construct a knee wall to screen the existing HVAVfcompressor units on the 12 ?at roof of the existing building for screening from the Objector?s property to the east. The applicant shall further move the new HVAC units for the existing building to the center on a ?at roof, between a front and rear barrel roof on the existing building. The applicant shall locate the new HVAC system units and compressor units, for the building eXpansion 32? to the north, on - the ?at roof over the expanded kitchen/bathroom area adjacent to the applicants property to the east and install a knee wall to screen the new units on the building expansion to the north. to prevent noise from in?ltrating away ?om the site, construction of an area dedicated as a permanent dining room, modi?cation of- refuge' containers a minimum of 32? distant from the Objector?s property line and modi?cation of the loading zones as agreed to by the ?aming Board. A material and non-waivable condition of this approval is that the application shall submit revised plans, subject to review and approval by the Board Engineer, con?rming the revisions and modi?cations agreed to during the public hearing. H. The applicant shall add a permanent dining room of approximately 32 feet in length to the north of the existing building, and subinit revised plans clearly depicting this dining room. I. I The ?South Refuse Area? shall no longer be used for storage of refuse but maybe used for loading and unloading of products and supplies needed to operate the facility. The applicant shall submit revised plans accordingly. 13 Resolution 14-10 - B1. 401 Lot 66 308 Boulevard - Saddy Family Trust, LLC Moved by: John Camera Seconded by: Harry Smith ROLL CALL VOTE Those in Favor: John Camera; Bob Brewer; Harry Smith; Art Ascoli; Mayor Bill Akers. Those Opposed: John Martinez. Those Absent: Frank C. German; Frank German; Lou DiGuilio. Those Not Voting: Steve Sanzone (con?ict of interest); Peter Jarkezian (arrived too late to vote). I hereby certify that this is a true and accurate copy of the aforesaid Resolution memorialized by the Seaside Heights Planning Board on May. 28, 2014. Dated: 94 - %A?r ANN STABILE, Seeretary EXHIBIT 2 Factual and Legal Contentions of Seaside Heights Planning Board. Defendants/Applicants, Saddy Family, LLC and 2?4?6?8 Boulevard, LLC ?led an application with the Seaside Heights Planning Board for preliminary and ?nal site plan approval with variances I and/or waivers effecting premises known as Lots 66 and 51 in Block 4.01 as designated on the of?cial tax map of Seaside Heights, Commonly known as 302 Boulevard, Seaside Heights, New Jersey. The property in question is located on the east side of the Boulevard between Franklin and Hamilton Avenues and has an area of approximately 20,000 sq. ft. The site contains an existing and closed former bar known as ?Merge? on the south side (Franklin Avenue side) and a gravel parking lot on the north side (Hamilton Avenue side) of the property. Plaintiff, C.S. Boulevard Properties, Inc., is a property owner within 200 ft. of the propertyin question and therefore quali?es as an interested party under the Municipal Land Use Law. The property in question is located in the Retail Business (RB) Zone. Bars and taverns are permitted uses in the RB Zone provided the same are incidental to a restaurant use. The applicant af?rmatively established that he will operate the site as a restaurant and agreed, at the suggestion of the Board, to add a permanent dining area which will contain tables and chairs con?gured in a way that typically represents a dining room, and which tables and chairs will not be removed for the purposes of dancing or entertainment. The applicant required certain bulk variances for rear yard and front and side yard setbacks. The public hearing was held on April 23', 2014' and the applicant and the objector were heard personally and through counsel. The Board engaged in an interactive dialogue with the applicant and objector in order to address a variety of concerns raised during the hearing. As a result, the applicants agreed to revise the hunt yard setbacks and building facade to hem accordance with other comparable establishments along the Boulevard in Seaside Heights, to construct a knee wall to screen existing HVACkompreSsor units on the roof from the plaintiff?s property to east, to move new HVAC units to an alternate location to reduce noise and to further screen the same. At the conclusion of the public hearing, the Board voted to approve the application. On May 28, 2014, the Board met again in a public hearing to memorialize the application. Plaintiff and defendants/ applicants also appeared at that time and Were both heard on the form of the Resolution. The Board thereafter memorialized the Resolution. The actions of the Board were reasonable, appropriate, and grounded upon substantial credible evidence in the record. In addition, the approval granted by the Board was the result of a dialog between plaintiff and defendants/ applicants which resulted in a land use approval designed to accommodate the interest of the parties, the public and in keeping with the character of the historic land uses along the Boulevard in the Borough of Seaside Heights. I William T. Hiering (1946?2005) Frank I. Dupignac, Jr. Richard D. Stanzione Certi?ed Civil Trial Attorney Hiering, Dupignac, Stanzione, Dunn Beck, P.C. ATTORNEYS AT LAW Lynne A. Dunn Also Admitted in FL PA Rule 1:40 Quali?ed Mediator Michael R. Beck Also Admitted in NY Paige E. Baran Also Admitted in NY Michael R. Stanzione Also Admitted in PA September 8, 2014 Hon. Vincent J. Grasso, A.J.S.C. Superior Court of New Jersey Courtroom 211d Floor Ocean County Court House PO Box 2191 Toms River, New Jersey 08754 ?Re: C.S. Boulevard Properties, LLC v. The Borough of Seaside Heights Planning Board; Saddy Family, LLC and 2-4-6-8 Bouelvard, LLC Docket Number PW Dear Judge Grasso: . Enclosed please ?nd original and one copy of Pretrial Memo on behalf of defendants Saddy Family, LLC and 2?4-6-8 Boulevard, LLC, together with original and two cepies of defendants? Factual Statement, with respect to the above matter. By way of-a copy of this letter I are providing each my adversaries with a copy of the defendants? pretrial memo. Thanking you, I remain, ReSpectfully yours, a IGNAC, DUNN BECK, P.C. - RICHARD D. STAN ZIO {Hide RDS/lmd Enos. cc: Guy Ryan, Esquire (w/enc. Edward F. Liston, Esquire (W/enc.) pretrial memo'dc?c 64 Washington Street, Toms River, NJ 08753 732.349.1212 -- 732.349.1217 - - 732.349.1240 Real Estate FILING ATTORNEY: RICHARD D. STANZIONE, ESQUIRE N.J. ATTORNEY ID NO. 012951974 HIERING, DUPIGNAC, - STANZIONE, DUNN BECK, P.C. 64 Washington Street Toms River, New Jersey 08753 732-349-1212 Attorneys for Defendants, Saddy Family, LLC and 2-4-6-8 Boulevard, LLC C.S. BOULEVARD PROPERTIES, I LLC, a limited liability company of the State of New Jersey, Plaintiff, - V. THE BOROUGH OF SEASIDE HEIGHTS PLANNING SADDY FAMILY, LLC, and 2-4?6-8 BOULEVARD, Defendants. 1. NATURE OF ACTION: Action in Lieu of Prerogative Writs. SUPERIOR COURT OF NEW. JERSEY LAW - OCEAN COUNTY DOCKET NO. CIVIL ACTION PRETRIAL MEMORANDUM OF DEFENDANTS SADDY FAMILY, LLC AND 2-4?6-8 BOULEVARD, LLC 10ADMISSIONS AND STIPULATIONS: None. FACTUAL AND LEGAL CONTENTIONS: Annexed hereto. DAMAGES AND INJURY CLAIMS: None. AMENDMENTS: None. ISSUES AND EVIDENCE PROBLEMS: See attached ?Issues and Evidence Problems.? LEGAL ISSUES ABANDONED: None. EXHIBITS: . marked below. EXPERT WITNESSES: None. Trial is based on transcripts of hearings held on April 23, 2014 and May 28, 2014. BRIEFS: As ordered. ORDER OF OPENING AND CLOSING: Usual. ANY OTHER MATTERS AGREED UPON: I None. 14. 15. 16. 17. 18. 19. TRIAL COUNSEL: Richard D. Stanzione, Esquire ESTIMATED LENGTH OF TRIAL: One-half day. WEEKLY CALL FOR TRIAL CALL: As scheduled. ATTORNEYS FOR PARTIES CONFERRED 0N MATTERS THEN AGREED UPON: Attorneys for parties have not conferred. IT IS HEREBY CERTIFIED THAT ALL PRETRIAL DISCOVERY HAS BEEN COMPLETED, EXCEPT: None. PARTIES WHO HAVE NOT BEEN SERVED AND PARTIES WHO HAVE DEFAULTED: 1 None.- HIERING, DUPIGNAC, BECK, P.C. Dated: September 8, 2014. #3-4 - Factual and Legal Contentions FACTUAL CONTENTIONS The Applicants Saddy Family, LLC and 2-4-6-8 Boulevard, LLC (?Applicants?) applied for a renovation and expansion of the existing Merge bar/ restaurant. The use is permitted in the Retail Business (RB) Zone but required a front-yard setback variance on the Boulevard of 1/ 10?u of a foot when 10 feet is required and setback on the Franklin Avenue side of the property of 1/101?11 of a foot when 10 feet is required. Applicants, the owners of the property located 30-2 Boulevard, Seaside Heights, New Jersey, also known as Lots 66 and 51 in Block 4.01 as designated on the Of?cial Tax Map of Seaside Heights, New Jersey (?the Site?), applied to the Borough of Seaside Heights Planning Board (?Board?) for Preliminary and Final Site Plan Approval and the above-referenced bulk variances (?Application?). Public hearings were held on April 23, 2014 and May 28, 2014. During the hearings the Board entertained the testimony of John Saddy, the principal of Saddy Family, LLC and the prospective general manager of Merge; Edward Angster, P.E., P.P, L.S., R.A., the Applicant?s engineer/ planner; and Vincent Craparotta, a property owner within 200 feet of the Site, and the principal of Plaintiff, C.S. Boulevard Properties, Inc., and the sole objector to the Application (?Objector?). At the conclusion of the testimony, the Applicant represented that they would be-willing to amend the plans to address the Obj ector?s and the Board?s concerns, including, but not necessarily limited to, constructing the front-yard setback in accordance with the setback of a nearby restaurant, Hemingway?s (also owned by the Obj ector); moving the proposed HVAC unit and constructing a knee wall around the HVAC unit; adding a permanent dining room; moving the proposed bar and expanding upon the current kitchen; adding a refuse container on the east side of the structure a minimum of 32? from Objector?s preperty line; using reduced-sized recycling containers; and complying with the suggestions-of the Township Engineer as set forth in the Technical Revisions and/ or Corrections section of the Engineer?s April 21, 2014 memorandum and set forth in the Res'olution of Approval attached hereto at Tab 1. At the conclusion of the hearings, the Board voted to grant the Application and granted a variance for the rear-yard setback, a variance for the front-yard setback and granted a design waiver for off-street parking and further required the Applicant to submit revised plans incorporating the agreeduupon modi?cations. LEGAL CONTENTION I. THE APPROVAL OF THE VARIANCES REQUESTED WAS NOT ARBITRARY, CAPRICIOUS AND UNREASONABLE. Applicant satis?ed the relevant standards applicable to set back variance applications pursuant to N.J.S.A. and 70c(2) and as set forth in Wilson V. Brick Township Zoning Board of Adjustment, 405 NJ. Super. 189 (App. Div. 2009), affd, 2011 WL 2410049 Super.A.D. May 06, 2011) (attached hereto at Tab 2 pursuant to the court rules). Defendant Board applied the applicable standards and issued an approval that is not arbitrary and capricious, as evidenced in the hearing transcripts and con?rmed in the Resolution of Approval. #7 Issues and Evidence Problems 1. Was the approval of the Application arbitrary, capricious and unreasonable? . 2. Was the approval of the Application supported by substantial credible evidence in the record below? - 3. Did the Board apply the proper variance standards to the Application? #0 Evidence List 1. Evidence submitted in connection with Saddy and 2-4-6-8?s Application: A. Application; B. April 8, 2014 Site Plan prepared by Edward F. Angster, P.E., P.P, L.S., R.A. entitled, ?Site Plan, Lot 66 and Westerly 100 Lot'51, Block 4.01, Seaside Heights, Ocean County, New Jersey?; I C. December 10, 2013 Survey prepared by Edward F. Angster, RE, PP, L.S., R.A. entitled, ?Survey of Property, Lot 66, Block 4.01, Seaside Heights, Ocean County, New Jersey; D. April 24, 2012 Survey prepared by Edward F. Angster, P.E., P.P, L.S., R.A. entitled, ?Survey of PrOperty, Lot 51, Block 4.01, Seaside Heights, Ocean County, New Jersey? E. April 8, 2014 plans prepared by Edward F. Angster, P.E., P.P, L.S., R.A. entitled, ?Proposed Plans for Temptations, Block 4.01 and Lots 66 and 51, 302 Boulevard, Seaside Heights, Ocean County, New Jersey; Copy of application to Ocean County Planning Board. 2. Transcripts from the April 23, 2014 and May 28, 2014 hearings; 3. Resolution No. 14-10 of the Seaside Heights Land Use Board adopted on May 28, 2014. Family, LLC and 2-4-6-8 Boulevard, LLC et als adv. C.S. Boulevard Properties, LLC\Pleadings\Pretrial Memo.doc EXHIBIT 1 Bl. 4.01 Lot 66 308 Boulevard - Saddy Fam?ilyTrust,LLC 4/23/2014 RESOLUTION NO. 14? 10 SEASJDE HEIGHTS LAND USE BOARD WHEREAS, SADDY FAMILY, LLC and 2-4-6-8 BOULEVARD, LLC, whose mailing address is 709 Woodchuck Lane, Toms River, New Jersey, 0875 8, have applied for Preliminary and Final Site Plan with variances affecting premises located on Lots 66 and 51 in Block 4.01, as designated on the Official Tax Map of Seaside Heights, commonly known as 302 Boulevard, Seaside Heights, New Jersey; and WHEREAS, such proof of service as may be required by New Jersey Statutory and Municipal Ordinance requirements upon appropriate property owners and governmental bodies has been furnished; and I WHEREAS, a public hearing was held on the said application on April 23, 2014 in the Municipal Building of Seaside Heights and testimony and exhibits were presented on behalf of the applicant and all interested parties having been heard; and WHEREAS, the said Board, having considered said application, testimony, exhibits submitted, and ?om its inspection of the site, itmakes the following determinations: 1. The applicant was represented by Richard Stanaione, Esq. 2. John Saddy and the applicant?s engineer/planner testi?ed in support of the application. The area of development has an area of approximately 20,000 square feet. 3. The area of development is in the Retail Business (RB) Zone. - 4. The applicant seeks Preliminary and Final Maj or Site Plan Approval associated with additions to and expansion of the existing Merge bar/restaurant building including new outdoor seating areas. w/ I 5. CS. Boulevard Properties, Inc, a property owner within 200 feet appeared in opposition to the application. Edward F. Liston, Jr., Esq, appeared on behalf of the objector. The applicant?s principal, John Saddy, testi?ed as follows, to wit: A. He will be the general manager of the operation. B. The land is owned by the col-applicant, Robert Bennett of 2-4-6-8 Boulevard, LLC and SaddyFamily, LLC. The liquor license is owned by Temptations, I LLC. C. He has an agreement to have the restaurant within the existing operated by the operators of the former Diamond?s Restaurant, ivhich was located at the Surf Club in Ortley Beach, before it was destroyed by Hurricane Sandy. D. The three bars along the Boulevard in the existing building will be combined into one front bar. Along the patio, the applicant proposes to have an outdoor bar. He intends to have separate bathroom facilities for private parties. E. The applicant intends to also have comedy club events and mystery theatre events, in addition to dining. F. The applicant wishes to expand the existing kitchen by three to four times the size, but due to time constraints will utilize the existing kitchen for'2014. G. The applicant proposes backlighted signs and neon signs similar to existing establishments in the area. H. The applicant will utilize a recycling company and reduced size dumpsters to recycle all recyclable materials. The applicant will have suf?cient space for these dumpsters. I. The applicant will utilize the Borough?s trash collection. .T. The applicant anticipates two liquor deliveries per week, but will have daily bread deliveries during the summer. K. Mr. Saddy testi?ed about his intention to construct future phases of the project. L. The applicant is prepared to add benches and shade trees consistent the streetscape along the Boulevard. - M. The applicant will maintain the existing gravel parking lot, likely to be. utilized via self and valet parking. I N. Mr. Saddy testi?ed that the facility will function principally as a restaurant during the hours of operation. - 0. Upon cross-examination, Mr. Saddy testi?ed that phase one will constitute an expansion of the existing building by approximately 30 feet to the north. P. Mr. Saddy testi?ed that he will have Diamond?s Restaurant offer a limited menu for restaurant purposes. He classi?ed it as a bar and restaurant, not as a The tables are designed to slide underneath a stage, so the dining area can be converted into a dance ?oor. The trash area is located adjaCent to a residence to the east, the swim as has been existing for 30 years and as was purchased by the current owner next to a Q. Edward F. Angster, P.E., P.P-., L.S., R.A., testi?ed in support of the application. He testi?ed regarding the cantilever roof (overhang) and the sliding patio roof. R. The applicant proposes a front yard setback on the Boulevard of 1/ 1 0"?1 of a foot, where 10 feet is required. The applicant also proposes a 1/ 10th of a foot setback on the Franklin Avenue side, with a 42? glass wall or railing, With pull down canvas sides, and the rolling patio roof. I S. The Applicant agreed to a condition that approval will be subject to a grant of an additional sewer lateral from the borough, as required. An additional transformer will be required for the building expansion, and the applicant agrees to comply with approvals from the borough electrical department with regard to the transformer location, which shall be re?ected as a note on the plans. The kitchen will be ekpanded into the current gravel parking area. T. New HVAC units are proposed to be located on the ?at roof, and will be restricted to NJDEP standards of SO Db standards and, if necessary, the applicant will construct a knee wall for sound deadening purposes as well as aesthetics. U. The applicant proposes two trench drains of approximately 100 feet long each, 18 inches wide and 2 feet deep. The existing site is almost 100% impervious, so the applicant will be improving storm water management and prevent adverse effects on adjacent properties. V. The applicant agreed to comply with the Technical Revisions and/or Corrections section in the review letter of the board engineer, dated April 21, 2014. W. Upon cross-examination, Mr. Angster testi?ed that the building is currently set back 10 feet from the property line along the Boulevard, presently complying with the Borough?s set back requirements. The applicant is proposing to have essentially a zero setback from the property line, leaving eight feet of area for sidewalk to the curb. X. The board?s engineer clari?ed the phasing of the project: Phase 1 will 4 include the existing second ?oor on the existing building. The glass wall along the Boulevard will also be installed as part of Phase 1. The curb cut will be eliminated on . the Boulevard and access to the gravel lot will be accessed from the curb cut on Hamilton Ave. The phasing plans should be addressed on the architectural plans and the applicant agreed. I Y. VinCent Craparotta, Jr., a property owner within 200 feet, testi?ed in opposition to the application. He also owns the property where Hemingway?s is located. The liquor license for. HemmingWay?s is owned by his wife. The area in front of Hemingway?s is 17 feet to the curb, with a 5 foot fenced in area, leaving 12 feet from the fencing to the curb. z. The Objector introduced Exhibit 01. MI. Craparotta testi?ed that the proposed sidewalk size in front of proposed site will be reduced to 7 feet, and that part of that area is occupied by benches and trees, making the area insufficient for pedestrian I access, in Mr. Craparottais opinion. AA. The Obj ector also introduced Exhibit 0-2 containing photos of the front yard setbacks in ?cnt of various including Merge, the Pool Club, Savor/Karina and the Bamboo Bar. Mr. Craparotta testi?ed that the applicant plans to build out into the front yard setback with approximately 10 feet of pavers which-were installed by the Borough. Mr. Craparotta testi?ed that the reason the Borough had increased, the size of the sidewalks during the prior Boulevard renovations was for pedestrian safety. He testi?ed that by allowing encroachment into this area, pedestrian safety would be reduced. I BB. The Obj ector introduced Exhibit 0-3 which were various photographs of side yard setbacks at various bars. including the Bamboo Bar, Hemingway?s, Savor, The Pool Club and the subject property. CC. The Obj ector introduced Exhibit 0-4 which contained photographs of the roofs of various liquor license establishments showing HVAC units and other utilities on such clubs as the Bamboo Bar, Merge, I-lemmingway?s, Savor and others. DD. Mr. Craparotta testi?ed that the Bamboo Bar and Savor have 40 feet of parking lots as buffers between their HVAC units on the roof and the neighboring properties. In contrast, the applicant has existing HVAC units on a ?at roof within 4 feet of a residential property, which is owned by the objector. BE. The Obj ector introduced Exhibit 0-5 which was a marked up site plan of the applicant?s property. Mr. Craparotta testi?ed that he believed the applicant is actually expanding the into a residential area. He also testi?ed that the architectural plans submitted by the applicant are vague and he would expect the applicant to have more detail if the applicant actually planned to Open the establishment this summer. I I RF. Upon cross examination, Mr. Craparotta admitted that he would still be objecting to the project even if the railings along the Boulevard were moved back 12 feet from the curb line. I GG. Upon further cross examination, Mr. Craparotta agreed that he Would'be I satis?edlif the applicant would move the hew HVAC systems to the center of the project, with a redesigned ?at roof in the center, with a barrel roof in the front and rear. The applicant thereafter agreed to modify the plans. EH. Mr. Craparotta testi?ed that he believes the side yard setbacks need to be 6 feet in order to have adequate ?re exists especially with a 30? or 36? doors. II. The Board engaged in an interactive dialogue with the applicant and suggested the applicant make revisions to the plans- As a result thereof, the applicant agreed to construct a front yard setback to the railings and building facade in accordance with the setback at Hemingway?s from the curb to the railing and building facades of the private establishment area. The applicant also agreed to construct a knee wall to screen the existing HVAWcompressor units on the ?at roof of the existing building for screening from the Obj ector?s preperty to the east. The applicant further agreed to move the new HVAC units for the existing building to the center on a ?at roof, between a front and rear barrel roof on the existing building. The applicant also agree to locate the new HVAC system units and compressor units, for the building expansion 32? to the north, on the ?at roof over the expanded kitchenfbathroom area adjacent to the applicants property to the east and install a knee wall to screen the new units on the building expansion to the north. H. In addition, to address concerns about whether or not the applicant would construct a facility that. complied with the provisions of the RB Zone, and was not a the applicant agreed to add a permanent dining room of approximately 32 feet in length to the north of the existing building, and to amend the site plan application accordingly. In addition, the applicant agreed to move the pr0posed bar that was intended to be part of the ?outside enclosure? to the north as part of Phase 2. I The ?outside enclosure? will now be enclosed into a permanent dining area and the current kitchen will be expanded. I K. The Board directed that the Board Engineer verify the front and side yard setbacks for railings and building facade and that any-approval provided that the setbacks for front and side yards must be the same as other businesses along the Boulevard, in particular Hemmingway?s. The applicant further agreed to comply with all Health - Department conditions. LL. Robert J. Bennett, Jr., principal of 2-4-6-8 Boulevard, LLC, testi?ed that he thought that the Objector bought the residential property to the east of the application Speci?cally to object the project just like he has purchased other properties near the applicant?s businesses in order to object. MM. The applicant agreed to add a refuse enclosure on the east side of the property a minimum of 32? distant from the Objector?s' property line and the applicant will return to the Board, if necessary, for site plan amendment but the applicant wishes to still maintain the south refuse area for loading and unloading. NN. The applicant had previously constructed a billboard on telephone pole size pilings facing to the north. The Board agreed to allow the applicant 120 days to either seek Board approval for the continued use of the pilings as part of another permitted use or to remove them. 00. The applicant agreed to provide revised plans to comply with all of the foregoing set forth above. 7. The following person(s) appeared to question the applicant and make statements with regard to the proposal: None, other than as detailedabove. 8. The Board reviewed the following evidence, to wit: A. The application. B. ?Site Plan, Lot 66 and Westerly 100 FT Lot 51, Block 4.01, Seaside Heights, Ocean County, New Jersey?. The drawings, consisting of two (2) sheets, have been prepared by Edward F. Angster, NJPE #13450. The drawings are dated April 8, 2014 with no revision dates indicated. I C. f?Survey of Property, Lot 66, Block 401, Seaside Heights, Ocean County, New Jersey?. The drawing, consisting of one (1) sheet has been prepared by Edward F. Angster, #13450. The drawing is dated December 10, 2013 with no revision dates indicated. I D. ?Survey of Property, Lot 51, Block 4.01, Seaside Heights, Ocean County, New Jersey?. The drawing, consisting of one (1) sheet has been prepared by Edward F. Angster, #13450. The drawing is dated April 24, 2012 with no revision dates indicated. B. ?Proposed Plans for Temptations, Block. 4.01 and Lots 66 and 51., 302 I Boulevard, Borough of Seaside Heights, Ocean County, New Jersey?. The drawings, consisting of three (3) sheets, has been prepared by Edward F. Angster, NJRA #06316. The drawings are dated April it, 2014 with no revision dates indicated. F. Copy of application to Ocean County Flaming Board. - 9. The Board makes the following ?ndings, to wit: A. This application does not require a use variance pursuant to 40:5 5D?70d as bars and taverns are permitted uses in the RB Zone provided the same are incidental. to a restaurant use and the applicant af?rmatively testi?ed that he will Operate the site as a restaurant and agreed, at the suggestion of the Board, to add a permanent dining area, which will contain tables and chairs configured in a way to typically represent a dining room, and which tables and chairs will not be removed for the purpose of dancing or type entertainment. B. The application requires the following bulk variance. for a rear yard setback where 3 feet is required and 2.0 feet are existing-and pr0posed. Borough Code Section C. The application requires a bulk variance from the front yard setback requirements Were 10 feet is required, where 9.6 feet is existing from the Boulevard and less than 10 feet is preposed along Hamilton Avenue, Franklin Avenue and along the Boulevard. Borough Code Section D. - This "application requires a design waiver for off-street parking, Borough Code Section where retail business uses shall supply parking at one parking space for 500 square feet of gross ?oor area, and where the applicant proposes no formal paved and striped off-street parking. E. The purposes of the Municipal Land Use Law would be advanced by the deviation from the. zoning ordinance requirements for the approval of the variance. The variance can be granted without substantial detriment to the public good, the bene?ts of the deviation will substantially outweigh any detriment and the variance will not substantially impair the intent and purposes of the zoning plan and zoning ordinance of the Borough of Seaside Heights. i. . The Board finds that the applicant has compromised with applicant?s neighbors by agreeing to construct a knee wall to screen the existing HVAV/compressor units on the ?at roof of the existing building for screening from the Objector?s property to the east. The applicant further agreed to move the new HVAC units for the existing 10 building to the center on a ?at roof, between a front and rear barrel roof on the existing building. The applicant also agree to locate the new HVAC system units and compressor units, for the building expansion 32? to the north, on the ?at roof over the expanded kitchen/bathroom area adjacent to the applicants property to the east and install a knee wall to screen the new units on the building expansion to the north. - The applicant also agreed to use reduced sized recycling refuge containers, by complying with Health Department conditions, by adding a refuge enclosure .on the east side a "minimum of 32? distant from the Objector?s property line, by maintaining but limiting the south refuge area for loading and unloading of products and supplies, by adding a permanent dining room and by adjusting the setbacks from its original plans. G. The Board ?nds that the relief requested is not of such a magnitude as to be _a detriment to the public good nor an impairment of the intent and purpose of the zone plan. H. - The bulk variances referred to above can be granted without subatantial detriment to the public good becauSe the same are consistent, as amended, with existing setbacks along the Boulevard for _similar businesses in the surrounding area. i I. The design waiver for parking can be granted because the Board ?nds that the current metered spaces on public streets in the area as well'as the availability of off- street private parking lots adequately supports the need for public parking. I The site previously operated as a without off?street parking and several surrounding I restaurants/bars inthe RB Zone likewise successfully operate and accommodate patrons without off-street parking. I. With regard to the previously-constructed billboard on telephone pole size 11 pilings facing to the north, the applicant shall have 120 days from the date of adOption of this resolution to either seek Board approval for the continued use of the pilings as part of another permitted use or to remove them. NOW, THEREFORE, BE IT RESOLVED, by this Board, based on the ?ndings herein above stated, it docs hereby grant the application subject to the following conditions: A. Applicant should obtain any other approvals with respect to the submission from any other Federal, County, State or Municipal Agency having jurisdiction over same, including approvals, if any, for the glass wall as may be required by virtue of its location adjacent to a state highway and county roadway. B. Applicant. should re-subrnit this entire proposal should there be any deviation from this Resolution or the submitted documents, which are hereby made a part hereof and shall be binding on the applicant. C. Applicant shall construct at applicant?s sole cost and expense all improvements re?ected on the submitted documents. D. The relief granted hereunder shall be rendered null and void should the applicant fail to commence construction within 1 year of the date of this Resolution. E. The applicant shall comply with all representations and agreements made by the applicant or the applicant?s representative during the consideration of this application. F. The applicant shall comply with all of the Engineer?s conditions as set forth in the Engineer?s memo dated April 21, 2014 in the ?Technical Revisions andfor Corrections? Section. G. The applicant shall redesign the project in accordance with the agreements reached with the Board at the public hearing, including but not limited to, redesigned front and side yard setbacks, construct a knee wall to screen the existing HVAVfcompressor units on the 12 ?at roof of the existing building for screening from the Objector?s property to the east. The applicant shall further move the new HVAC units for the existing building to the center on a ?at roof, between a front and rear barrel roof on the existing building. The applicant shall locate the new HVAC system units and compressor units, for the building eXpansion 32? to the north, on - the ?at roof over the expanded kitchen/bathroom area adjacent to the applicants property to the east and install a knee wall to screen the new units on the building expansion to the north. to prevent noise from in?ltrating away ?om the site, construction of an area dedicated as a permanent dining room, modi?cation of- refuge' containers a minimum of 32? distant from the Objector?s property line and modi?cation of the loading zones as agreed to by the ?aming Board. A material and non-waivable condition of this approval is that the application shall submit revised plans, subject to review and approval by the Board Engineer, con?rming the revisions and modi?cations agreed to during the public hearing. H. The applicant shall add a permanent dining room of approximately 32 feet in length to the north of the existing building, and subinit revised plans clearly depicting this dining room. I. I The ?South Refuse Area? shall no longer be used for storage of refuse but maybe used for loading and unloading of products and supplies needed to operate the facility. The applicant shall submit revised plans accordingly. 13 Resolution 14-10 - B1. 401 Lot 66 308 Boulevard - Saddy Family Trust, LLC Moved by: John Camera Seconded by: Harry Smith ROLL CALL VOTE Those in Favor: John Camera; Bob Brewer; Harry Smith; Art Ascoli; Mayor Bill Akers. Those Opposed: John Martinez. Those Absent: Frank C. German; Frank German; Lou DiGuilio. Those Not Voting: Steve Sanzone (con?ict of interest); Peter Jarkezian (arrived too late to vote). I hereby certify that this is a true and accurate copy of the aforesaid Resolution memorialized by the Seaside Heights Planning Board on May. 28, 2014. Dated: 94 - %A?r ANN STABILE, Seeretary EXHIBIT 2 963 A.2d 1208 . Page 1 of 12 West Reporter Imaoe 405 N.J.Super. 189, 963 A.2d 1208 Judges. Attorneys and Exoerts . Superior Court of New Jersey, Appellate Division. Thomas WILSON, Plaintiff?Appellant, BRICK TOWNSHIP ZONING BOARD OF ADJUSTMENT, Defendant-Respondent. Argued Dec. 3, 2008. Decided Jan. 22, 2009. Background: Property owner filed complaint against-township Zoning Board of Adjustments, challenging denial of his application for bulk zoning variances. The Superior Court, Law Division, Ocean County, affirmed denial of applications, and property owner appealed. Holdings: The Superior Court, Appellate Division, Lyons, J.A.D., held that: owner was not entitled to variance with respect to back yard deck and pool under provision in Municipal Land Use Law governing applications for variance that would enhance purposes of Law; (21 owner was entitled to variance to 15~foot rear year setback with respect to deck .that property owner enlarged to cover entire back yard; and ?11 remand was required for property owner to demonstrate, and Board to make findings, as to whether strict application of zoning ordinances would result in peculiar and exceptional practical difficulties and that owner was unable to conform his specific and detailed plans to zoning requirements without peculiar and exceptionai practical difficulties. Affirmed in part; reversed in part;, remanded. West Headnotes KevCite Citino References for this Headnote $29414 Zoning and Planning Judicial Review or Relief ?ea-2414mm Scope of Review In General {3133414k1645 Matters of Discretion m414k1651 k. Variances and exceptions. Most Cited Cases (Formeriy 414k623) . In reviewing a decision to grant a variance, courts typically recognize that municipal bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in-the exercise of their delegated discretion. [21 KevCite Citino References for this Headnote Zoning and Planning WMX Judicial Review or Relief Scope of Review ihAl4X?C11 In General - ?5414k1627 Arbitrary, Capricious, or Unreasonable Action . 331-21414k1629 k. Regulations. Most Cited Cases 4. 07&scxt=WL&rlti=1 .. 9/2/2014 963 A.2d 1208 Page 2 of 12 f) . 3 (Formerly 414k609) {323$ Zoning and Planning KeyCite Citing References for this Headnote ce?3414X Judicial Review or Relief Scope of Review Presumptions and Burdens a?233414k1676 k. Validity of regulations in general. Most Cited Cases (Formerly 414k672) The judicial role in reviewing a zoning ordinance is circumscribed: there is a strong presumption in favor of its validity, and the court cannot invalidate it, or any provision thereof, unless this presumption is overcome by .a clear showing that it is arbitrary or unreasonable. L31 KeyCite Citino References for this Headnote - ram Zoning and Planning Judicial'Review or Relief m414xgci Scope of Review im414X(C)1 In General :ew414k1627 Arbitrary, Capricious, or Unreasonable Action m414k1628 k. In general. Most Cited Cases (Formerly 414k608.1) - A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. KeyCite Citing References for this Headnote mm Zoning and Planning Judicial Review or Relief Scope of Review In General m414k1637 Wisdom, Judgment, or Opinion mam-k. In general- mm (Formerly 414k614. 1) Zoning and Planning KeyCite Citing References for this Headnote =m414X Judicial Review or Relief m414XlC) Scope of Review In General m414k1645 Matters of Discretion c3414k1646 k. In general. Most Cited Cases (Formerly 414k619.1) Even when doubt is entertained as to the wisdom of a zoning determination, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved. [51 KeyCite Citing References for this Headnote Zoning and Planning Judicial Review or Relief Scope of Review @414xlcl4 Questions of Fact $21414k1695 k. Extent of review in general. Most Cited Cases .. I 9/2/20 14 963 A.2d 1208. I Page 3 of 12 (Formerly 414k701) On appeal from a zoning determination, the courts will give substantial deference to the board's findings of fact; however, it is essential that the board's actions be grounded in evidence in the record. KeyCite Citing References for this Headnote mung Zoning and Planning . Administration in General a23414k1335 Proceedings in General cm414k1339 Notice and Hearing - ?21414k1339l41 k. Evidence. Most Cited Cases (Formerly 414k359) While expert testimony is often presented to a zoning-board and is found helpful, the board is not bound to accept the testimony of any expert. [21 KevCite Citing References for this Headnote @3414 Zoning and Planning Variances and Exceptions In General c3414k1532 k. Water-related uses and regulations. Most Cited Cases (Formerly 414k503) . Property owner was not entitled to variance with respect to back yard deck and pool under provision in Municipal Land Use Law governing applications for variance that would enhance purposes of Law; variance did not advance any benefit to community but would have merely alleviated hardship to property owner which he himself created by building nonconforming deck and pool without obtaining permits. N.J.S.A. KeyCite Citing References for this Headnote Zoning and Planning @2414? Variances and Exceptions m414IxiA) In General atm414k1477 Hardship, Loss, or Injury m414k1482 k. Self-created hardship; prior knowledge. Most Cited Cases (Formerly 414K497) A variance sought under the provision of the Municipal Land Use Law that authorizes a variance if it would enhance the purposes of the Law is not necessarily unavailable because the applicant has created the condition which requires the variance. N.J.S.A. [g1 KevCite Citing References for this Headnote Zoning and Planning Variances and Exceptions res414lxlA) In General - $2414k1474 k. Public interest or welfare. Most Cited Cases (Formerly 414k490) @244; Zoning and Planning KevCite Citing References for this Headnote .. 9/2/20 1 4 965 A.2d 1208 Page 4 of 12 rtm414IX Variances and Except??nS In General _?:22414k1477 Hardship, Loss, or Injurv @414k1479 k. Necessity of showing. (Formerly 414k494) A variance sought under the provision of the Municipal Land Use Law (MLUL) that authorizes the grant of a variance if it would enhance the purposeof the Law is not based Upon hardship but requires a balancing of the benefits and detriments from the grant of the variance; the analysis focuses on advancing the purposes of the MLUL and the benefits to the community. N.J.S.A. KevCite Citinq References for this Headnote twig Zoning and Planning- Variances and Exceptions m4141XiB) Proceedings for Variances and Exceptions 6:5414k1538 k. Application. Most Cited Cases (Formerly 414k533) On an appiication for a variance under the provision of the Municipal Land Use Law (MLUL) that authorizes the grant of a variance if it would enhance the purpose of the Law, the variance applicant must set forth what purposes of the MLUL will be advanced by granting the requested variance. N.J.S.A. KevCite Citino References for this Headnote 42mm Zoning and Pianning - Variances and Exceptions c==4141XiAi In General ?13414k1489 Architectural and Structural Designs $29414k1492 k. Building or setback lines. Most Cited Cases (Formerly 414k504) Property owner was entitled to variance to 15-foot rear year setback with respect to deck that property owner enlarged to cover entire back yard; home was lawfully existing structure, strict application of zoning ordinance would result in aliowing only three foot deck, which presented peculiar and exceptional practical difficulties for owner, variance would not be substantial detriment to public good or substantially impair intent to zoning plan and ordinances. N.J.S.A. [12] KevCite Citing References for this Headnote mm Zoning and Planning 1 exam Judicial Review or Relief Determination #:23414k1722 Remand sm414k1724 k. Directing further action by local authority. Most Cited Cases (Formerly 414k728) Remand to Zoning Board of Adjustments was required on application for variance to side-and rear yard set back for purposes of enhancing property owner?s yard with deck and pool, in order for property owner to provide any evidence to show that strict application of zoning ordinances would result in pecuiiar and exceptional practical difficulties clue to size of rear yard and that he was unable to conform his specific and detailed plans to zoning requirements without peculiar and exceptional .. 9/2/2014 963 A.2d 1208 . Page 5 of 12 m) practical difficulties, and for Board to make specific findings regarding same. N.J.S.A. - ?1210 Robert J. Pansulla, Belleville, argued the cause for appellant (Gaccione, Pomaco Malanga, attorneys; Mr. Pansulla, on the brief). Kenneth B. Fitzsimmons. Point Pleasant Beach, argued the cauSe for respondent (Sinn, Fitzsimmons, Cantoli 8; west, P.A., attorneys; Mr. Fitzsimmons, of counsel and on the brief). Before Judges PAYNE and LYONS. Judge Stern did not participate in oral argument. However, with the consent of counsel, he has joined in this opinion. R. The opinion of the court was delivered by LYONS, J.A.D. . - . I . *192 Plaintiff, Thomas Wilson, appeals from an order dismissing his cOmplaint with prejudice and affirming the denial by defendant, Brick Township Zoning Board of Adjustment, of plaintiff's application for seven bulk zoning variances. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. *193 Plaintiff owns property located in Brick Township, which is in an R-5 zone, permitting single? . family residential structures. Plaintiff's house is a two-story frame dwelling set back forty-one feet from the street and eighteen feet from the rear property line. The rear of the pr0perty borders on Barnegat Bay and plaintiff has title to a riparian grant covering the land between the end of the property line and the bulkhead, which is constructed 2.48 feet beyond the property line. In 1999, at the time that plaintiff purchased the property, there was an existing deck on the premises that covered most, but not all, of the back yard, and that extended beyond the rear property line **1211 past the bulkhead. After purchasing the property, plaintiff expanded the deck so that it covered the entire back yard. The deck was also raised fifty-four inches in height, and a swimming pool was built into the deck. Plaintiff constructed the improvements without obtaining the necessary permits, which led to litigation and his eventual payment of fines. Plaintiff?s construction did not comply with the Township's bulk zoning requirements regarding the location of the improvements. In July 2006, plaintiff filed an application with defendant for variances seeking approval of the previously constructed deck and swimming pool. Specifically, the bulk - variances sought by plaintiff were: - - Item Required Provided rear yard setback (deck) 15 feet 0 feet . rear yard setback (pool) 5 feet 0 feet (within existing deck) side yard setback (dwelling) 5 feet (one side) 12 feet 5.1 feet (one side) I 11 feet (total) (total) side yard setback (deck) 5 feet (one side) 12 feet 0 feet (one side) 5.6 feet (tota (total) side yard setback (pool) 5 feet 3.4 feet (within existing deck) side yard setback (shed) 4.1 feet (1/2 height) 3.3 feet maximum lot coverage 35% 49.7% *194 The Township's zoning officer issued a report on the application, and the proper notice of I hearing was published as required by law. On November 1, 2006, a hearing was held on the application, where plaintiff produced the expert testimony of Charles an engineer and professional planner. Mr. testified that the dwelling was constructed in order to provide a large front yard (forty-one feet from the street) and a ://Web2 . 9/2/2014 963 A.2d 1208 Page 6 of 12 . much smaller back yard (eighteen feet from the property line). Plaintiff's proposal was to remove the portion of the deck that extended past the bulkhead, bringing it back to the end of the bulkhead. He further testified that there was a minor deficiency in the side yard setback requirement of the dwelling clue to its construction prior to a recent amendment to the ordinance. The current ordinance required a twelve foot combined side yard setback, whereas the dwelling had only an eleven foot combined side yard setbackf-??l2 The variance concerning the dwelling not meeting the twelve foot combined side yard setback does not appear to be at all connected with the application to extend the rear yard deck and install a pool. It seems this condition existed prior to plaintiff's purchase of the dwelling in 1999. Mr. concluded that fitting a pool within the deck as it existed in 1999 in conformity with the setback requirements would have been ?impossible.? Mr. also noted in his testimony that ?basically, the entire neighborhood is developed exactly as the Wilsons are developed with a raised deck and a pool." He further emphasized this point by testifying that removal of the deck and pool would render plaintiff's property ?out of character with the neighborhood." In referring to photographs admitted into evidence, Mr. testified that the deck and pool were consistent with the neighboring adjacent**1212 properties, and did not infringe upon light, air, and open space. While Mr. acknowledged that he did not survey every property in the neighborhood, he testified that he conducted his investigation by visual inspection of the neighboring properties from plaintiff?s *195 dock and by examining aerial photographs. He noted plaintiff's pool could not be seen from the street or the bay; the pool could only be seen from the vantage point of a neighboring deck that was similarly arranged. Mr. aiso testified that granting the variance would ?promote desirable visual environment.? He went on to state: I think if you look at the photos, you see that every house is harmonious in the sense that they have these living areas and it is a desirable visual environment. I think that actually, adequate light, air and open space is maintained because of the proximity to the Barnegat Bay and this is their living space on the lot. I don't think light, air and open space is infringed upon with this lot having this condition. All the lots have the same condition. Plaintiff acknowledged through counsel that any variances granted by the Board would have to be conditioned upon approval by the New Jersey Department of Environmental Protection (DEP), pursuant to the Coastal Area Facility Review Act (CAFRA). In its resolution denying the bulk variances, defendant stated: [t]he Board finds and determines that the existing pool was built after the property was acquired by the applicant without obtaining a permit. The deck was enlarged by the applicant without obtaining a permit. Although there was testimony about adjoining properties having simiiarly situated decks and pools, no proof was submitted as to whether the adjoining preperties obtained appropriate building permits. Mr. Mizer, the Township Sub?Code Official, testified that the properties adjoining the applicant's property are not a good indication of the development of the properties in the entire neighborhood. The Board further finds that there was no testimony given regarding the necessity of having the pool situated in its present location. There was no testimony that a pool could not be built without variances. There was no testimony as to the possibility of reducing the size of the deck or pool. There was no testimony. that the appiicant could not provide adequate setbacks for the deCk. The applicant has failed to provide any testimony to substantiate a hardship requiring the granting of the variances requested. The Board finds that any hardship was created by the applicant himself. The Board finds that the application is not in keeping with the Municipal Zoning Ordinance and Master Plan. - 9/2/2014 963 A.2d 1208 PageJanuary 2, 2007, plaintiff instituted suit by filing a complaint in lieu of prerogative writs. On or about February 5, 2007, defendant filed an answer. On January 18, 2008, a trial was held, and on January 31, 2008, the court issued a written opinion upholding the decision of the *196 Board. The trial court found that the reasons given by defendant for denial of plaintiff's seven variances were amply supported by competent and credible evidence in the record and defendant's denial of plaintiff's application was not arbitrary, capricious or unreasonable. A final order ofjudgment was entered on February 13, 2008, affirming the Board's resolution and dismissing plaintiff's complaint with prejudice. On March 27, 2008, plaintiff filed a_ Notice of Appeal. - #31213 On appeal, plaintiff presents the following arguments for our consideration: POINT I: ACTIONS WERE ARBITRARY, CAPRICIOUS OR UNREASONABLE IN DENYING VARIANCE RELIEF UNDER THE CIRCUMSTANCES. A. The minor bulk variances can be granted under a analysis. B. The minor buik variances can be-granted under a analysis. C. Reversal would be appropriate without remand. [11 ?21 In reviewing a decision to grant a variance, courts typically recognize that municipal bodies, ?because of their peculiar knowledge of local conditions, must be allowed wide latitude in the exercise of their delegated discretion.? Booth v. Bd. ofAdz'ustment of Rockaway 50 NJ. 302, 306, 234 A.2d 681 (1967}. [T]he judicial role in reviewing a zoning ordinance is circumscribed. There is a strong presumption in favor. of its validity, and the court cannot invalidate it, or any provision thereof, - unless this presumption is overcome by a clear showing that it is arbitrary or unreasonabie. HarVard Ent, Inc. v. Madison TQ. Bd. of Adjustment, 56 NJ. 362, 368, 266A.2d 588 (1970).] {31 [31 El Specifically, local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion'by the pubiic agencies involved. Kramer V. See Girl.? Bd. ofAdz?ustment, 45 NJ. 268, 296-97, 212 A.2d 153 [1965).] [51 On appeal, the courts ?will give substantial deference to findings of fact, [however,] it is essential that the board's actions be grounded in evidence in the record.? *197 Falione Properties. v. Bethlehem TD. Planning Bd.. 369 552. 562. 849 A.2d 1117 While a Board of Adjustment's exercise of its discretionary authority based on its factual determinations will not be overturned unless arbitrary, capricious or unreasonable, legal determinations are not entitled to a presumption of validity and are subject to de novo review. szvkowski' v. Rizas. 132 NJ. 509. 518-20. 626 A.2d 406 (1993). [61 Further, while expert testimony is often presented to a Board of Adjustment and is found helpful, a Board is not bound to accept the testimony of any expert. See El Sheer v. Manning Bd. of 9/2/2014 963 A.2d 1208 Page 8 of 12 '3 Lawrence, 249 N.J.Suner. 323. 330. 592 A.2d 565 {App.Div.1991). certif. denied, 127 NJ. 546 606 A.2d 360 (1992). Under the Municipal Land Use Law (MLUL), N.J.S.A. to *163, a municipality's Board of Adjustment is authorized to grant bulk zoning variances if the required criteria are met. N.J.S.A. Plaintiff argues that the variances applied for in this case should have been granted pursuant to N.J.S.A. as well as N.J.S.A. C2 Analysis [11g Plaintiff argues that he was entitled to the _bUlk variances sought pursUant to C2. C2 provides: wherein an application [for a variance] or [an] appeal relating to a specific piece of purposes of [the would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would if?421214 substantially outweigh any detriment, grant a variance to allow departure from The negative criteria of N.J.5.A. must also be met. That is, the variance can be granted ?without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. *198 [01 With respect to a C2 application, the Supreme Court has said: [be definition, then, no c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case, then, will be not on the characteristics of the land that, in light of current zoning requirements, create a ?hardship? on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community. Kaufmann v. Planning Bd. for Warren. 110 NJ. 551. 563. 542 A.2d 457 (1988) (emphasis omitted).] . However, variance is not necessarily unavailable because the applicant has created the condition which requires-the variance." Green Meadows at Montville. L.L.C. v. Planning Bd. 0 Montville, 329 N.J.Suner. 12. 22. 746 A.2d 1009 [913 A C2 variance then is not based upon ?hardship? but ?requires a balancing of the benefits and detriments from the grant of the variance.? Bressman v. Gash. 131 NJ. 517. 523. 621 A.2d 476 (1993), citing Kaufmann. sunra. 110 NJ. at 558?60. 542-A.2d 457. The analysis focuses on advancing the purposes of the MLUL and the benefits to the community. In sum, the application fer a variance under C2 requires: (1) [that it] relates to a specific piece of property; (2) that the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance requirement; (3) that the variance can be granted without substantial detriment to the public good; (4) that the benefits of the deviation would substantially outweigh any detriment and (5) that the variance wiil not substantially impair the intent and purpose of the 'zone plan and zoning ordinance. [William M.'Cox, New Jersey Zoning and Land Use Administration, 6~3.3.at 143 (Gann 2008), citing Ketcherick v. Bar. of Mountain Lakes, 256 N.J.Super. 647, 657, 607 A.2d 1039 (App.Div.1992); Green Meadows. sunra. 3-29 N.J.Suner. at 22. 746 A.2d 1009.] 9/2i2014 963 A.2d 1208 - Page variance applicant must set forth what purposes of the MLUL will be advanced by granting the requested variance. Plaintiff argues that its application advances the following three purposes of the MLUL: a. To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare; e. To promote the establishment of appropriate population densities and concentrations that contribute to the well?being of persons, neighborhoods, communities and regions and preservation of the environment; 9. To provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space, both public and private, according to M12.15 their respective environmental requirements in order to meet the needs of all New Jersey N.J.S.A. and - In Kaufmann the New Jersey Supreme Court ruled that there was sufficient public benefit to warrant a C2 variance, when it ?effectuate[d] the goals of the community as expressed through its zoning and planning ordinances.? Kaufmann. suora. 110 NJ. at 564. 542 A.2d 457. The decision was based in part upon the conformity. of a partitioned lot to other properties in the neighborhood, and to the municipality?s goal of ?discouraging large lot zoning in [that] area of town." Id. at 564. 542 A.2d 515i Moreover, the court said, c(2) variance stands if, after adequate proofs are presented, the board without arbitrariness concludes that the harms, if any, are substantially outweighed by the benefits." Id. at 565. 542 A.2d 457. Given our scope of review, we agree with defendant. and the trial court that the criteria for a C2 variance were not demonstrated in this case. Kaufmann is clear that the grant of approval must ?actually benefit the community in that it represents a better zoning alternative for the property." at 563. 542 A.2d 457. In this case, based on the proofs submitted, defendant concluded that rather than advancing any benefit to the community, the application would merely alleviate a hardship to the applicant which he himself created. Given the proofs and findings in this case, we find sufficient support in the record that the purposes of the MLUL set out in sub-Section(a) of N.J.S.A. 40:550-2, as well as sub-sections and would not be advanced by plaintiff's improvements. In this case, plaintiff?s expert testified that the pool and deck cannot be seen from the street or the bay. Consequently, there is *200 adequate support for the apparent conclusion by defendant that plaintiff?s improvement would not be a visual improvement to the community. There is then no apparent benefit to the community. Moreover, this plaintiff sought a variance after building the improvement without permits, after a stop order, and without any showing as to why some or all of the zoning ordinances could not have been complied with in the design and installation of a deck and pool. Such action cannot be said to advance the purpose of the MLUL, and may well be a detriment to the intent and purposes of the zoning ordinance. Cl Analysis The MLUL provides a Board of Adjustment may grant a C1 variance: [w]here: by reason of an extraordinary and exceptional situation uniquely affecting a specific .piece of property or the structures lawfully existing thereon, the strict application of any regulation would result in peculiar and exceptional practical difficulties to, or exceptional and undue'hardships upon, the developer of such ://Web2 .westlaw.oom/resu1t/ documenttext. O7&scxt=WL&r1ti=1 .. 9/2/2014 9'63 A.2d 1208 Page 10 of 12 These criteria are referred to as the ?positive criteria." See Bressman, supra, 131 NJ. at 522-23, 621 A.2d 476. In addition to requiring proof of the ?positive criteria,? the C1 variance also requires proof of what is referred to as the ?negative criteria," also found in N.J.S.A. which provides that an applicant must demonstrate ?that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zoning plan and zoning ordinance." N.J.S.A. There are then, given the facts in this case, five criteria that had to have been met before a C1 variance could have been granted to plaintiff by defendant. They are: (1) a lawfully existing structure on a specific piece of property; (2) an extraordinary**1216 and exceptional situation uniquely affecting that structure; (3) an extraordinary and exceptional situation resulting in peculiar and practical difficulties or exceptional and undue hardship if there were a strict application of the zoning code; (4) the grant of the *201 variance would have no substantial detriment to the public good; and (5) the grant of the variance would not substantially impair the intent and purpose of the . zoning plan and zoning ordinance. N.J.S.A. [1_11 After reviewing the record in this case, it is clear tous that the record supports granting a variance with respect to one of the seven variance requests made, specifically the rear yard setback with respect to the deck. None of the parties have contested that the home is a lawfully existing structure on the property. The home, as constructed, has a forty?one foot front yard set back and an eighteen foot rear yard setback. Because of the location of this lawfully existing structure on the property and the fifteen foot required rear yard setback for a deck, a strict application of the zoning ordinance would result in allowing only a three foot deck. The resulting situation would certainly present ?peculiar and exceptional practical difficulties" for the homeowner.? Further, the proofs indicate that a variance with respect to the rear yard deck setback would not be a substantial detriment to the public good or impair substantially the intent and purpose of the zoning plan and ordinance. Consequently, because the lawfully existing dwelling's placement on the lot creates an extraordinary and exceptional situation resulting in peculiar and exceptional practical difficulties to an owner who wishes to place a deck larger than three feet in his rear yard and because none of the negative criteria would be affected by this development, the variance with respect to the rear yard deck setback should have been granted. . m3, We find that while the situation as to setbacks may well constitute ?an exceptional and undue hardship? on the plaintiff, because plaintiff or his predecessor in title created the ?hardship,? the ?hardship? grounds for relief as opposed to the ?peculiar and exceptional practical difficulties" grounds is not available. Jock v. Zoning Bd. of Adiustment of TB. of Wall. 184 NJ. 562. 591. 878 A.2d 785 (2005): Dalton v. Ocean TD. Zoninq Bd. ofAdfustment, 245 453. 464. 586 A'.2d 262 certif. denied, 126 NJ. 324. 598 A.2d 884 (1991). *202 We note that N.J.S.A. states that a variance may be granted when strict application of any regulation ?would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardships upon, the developer of such (Emphasis added). The Legislature's use of the term ?or? is significant. N.J.S.A. 1:1-1 states that the construction of the law and statutes of this state, words and phrases shall be read and construed with their context, and shall, be given their generally accepted meaning, according to the approved usage of the language.? The Legislature's use of the term ?or? in N.J.S.A. between the phrases ?peculiar and exceptional practical difficulties? and ?exceptional and undue hardships? is disjunctive. See State v. Smith. 262 N.J.Suoer. 487. 506. 621 A.2d 493 certif. denied, 134 NJ. 476 634 A.2d 523 (1993) (holding ?[w]hen items in a list are joined by a comma or semicolon, with an ?or? preceding the last item, the items are disjunctive?). Therefore, a developer may seek a variance under either phrase, provided the other relevant criteria are met. To hold otherwise would render the phrase superfluous. Araqon v. Estate of Snyder. 314 N.J.Suner. 635. 640-41. 715 A.2d 1045 . . 9/2/20 14 . 963 A.2d 1208. I Page 11 of 12 (Ch.Div.19981 (holding a statute **1217 ?should be construed so that effect is given to all its provisions, such that no part will be inoperative or superfluous, 'void or [Lg] With respect to the other six variances sought by plaintiff in his application, we agree with defendant and the trial court that plaintiff failed to prove all of the C1 variance requirements were metw While plaintiff's expert testified that construction of the deck and pool within the zoning requirements was ?impossible,? there was no detail given to support this conclusion and defendant was not bound by such testimony, particularly when it had a *203 survey of the site in evidence it could peruse. El Sheer, same. 249 N.J.Suner. at 330, 592 A.2d 565. The survey raises a number of questions as to how and whether a conforming deck and pool could be placed in the eighteen foot rear yard. The combined twelve foot side yard setback variances for the dwelling does not directly relate to the construction of the deck and pool and there is not enough in the record to comment on how and why that variance could be granted or if it is required as there was some testimony the ordinance on this point may have been changed following the dwelling's construction. We are unable to discern from the record, in particular the surveys in evidence, whether a conforming deck and pool could be built in plaintiff's rear yard without a variance other than one for the rear yard deck setback, which we have already. discussed. There are no proofs regarding that other than plaintiff's expert's conclusionary opinion that it would be ?impossible.? The open question is whether the strict application of the municipality's zoning ordinance to plaintiff's desire to improve the rear yard of his property with a deck and pool results in peculiarand exceptional practical difficulties due to the size of the rear yard where the limited rear yard is the result of the apparently legal placement of the house on the lot. If plaintiff is able to demonstrate that to defendant, he must then demonstrate how he is unable to conform his specific and detailed plans to the zoning requirements without peculiar and exceptional practical difficulties. Neither plaintiff's appliCation nor defendant's denial addresses these points sufficiently. Therefore, given our interpretation of the criteria for a C1 variance as it pertains to plaintiff's application in this case and the failure of both plaintiff and defendant to address the criteria, we reverse the order affirming the denial of the rear yard setback variance for the deck and remand the matter to the trial court so that it in turn can remand the applicatiOn to defendant for further proceedings Consistent with our interpretation of the C1 requirements. We affirm the trial court's order with respect to the denial. of the C2 variance. On remand to defendant, plaintiff is to submit to defendant within sixty days of our decision a current survey showing the dimensions of the existing deck and pool, as well as the effect of the bulk zoning ordinances on the existing deck and pool. Plaintiff is also to submit within that same timeframe any modifications to the existing improvements he wishes to make in order to *204 attempt to conform his application for a deck and pool to the zoning ordinances. We do not imply in our remanding the matter as to how defendant should pass on the question of the variances. The purpose of our remand is so that both plaintiff and defendant can, in accordance with the appropriate criteria of C1, analyze plaintiff's application, as it currently stands and as it may be amended. From our review of the record, we see no need to assume-jurisdiction instead of remanding the matter. Defendant's questions as to the history of the matter do not M1.213 evidence an inability on defendant's part to fairly and appropriately weigh the evidence. Accordingly, we affirm in part, reverse in part, and remand the matter for further proceedings consistent with the within opinion. We do not retain jurisdiction. Wilson v. Brick Tp. Zoning Bd. of Adjustment 9/2/2014 963 A.2d 1208 405 N.J.Super. 189, 963 A.2d 1208 Page 12 of 12 Judges, Attorneys and Experts (Back to top) Judges Attorneys Exoerts Judges 0 Lyons, Hon. Thomas N. State of New Jersey Superior Court, Appellate Division Trenton, New Jersey 08625 Litigation Historv Report Judicial Reversal Report Profiler Payne, Hon. Edith K. State of New Jersey Superior Court, 5th Vicinage Newark, New Jersey 07102 Litigation History Report Judicial Reversal Report Judiciai?Expert Challenge Report Profiler Stern, Hon._ Edwin H. Litigation History Report Judicial Reversal Report 1 Profiler Attorneys Attorneys for Appellant Io Pansulla, Robert J. Believiile, New Jersey 07109 Liticlation History Report Profiler Attorneys for Respondent 0 Fitzsimmons, Kenneth B. Point Pleasant Beach, New Jersey 08742 Litigation Histopy Report Pro?ler Experts Charles checkstan?d design specialist WA 98046 Expert Evaluator Report Profiler END OF DOCUMENT West Reporter Imacie (PDF) -. XL Get . 1 Adobe__Reac_ie_r is required to view PDF images. 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 9/2/2014 #3-4 - Factual and Legal Contentions FACTUAL CONTENTIONS I The Applicants Saddy Family, LLC and 2-4-6?8 Boulevard, LLC (?Applicants?) applied for a renovation and expansion of the existing Merge bar/restaurant. The use is permitted in the Retail Business (RB) Zone but required a front-yard-setback variance on the Boulevard of 1/ 10th of a foot when 10 feet-is required and setback on the Franklin Avenue side of the property of 1/10?h of a foot when 10 feet is required. Applicants, the owners of the property located 302 Boulevard, Seaside Heights, New Jersey, also known?as Lots 66 and 51 in Block 4.01 as designated on the Official Tax Map of Seaside Heights, New Jersey (?the Site?), applied to the Borough of Seaside Heights Planning Board (?Board?) for Preliminary and Final Site Plan Approval and the above~referenced bulk variances (?Application?); I Public hearings were held on April 23, 2014 and May 28, 2014. During the hearings the Board entertained the testimony of John Saddy, the principal of - Saddy Family, LLC and the prospective general manager of Merge; Edward Angster, P.E., P.P, L.S., R.A., the Applicant?s engineer/planner; and Vincent Craparotta, a property owner within 200 feet of the Site, and the principal of Plaintiff, C.S. Boulevard Properties, Inc., and the sole objector to the Application (?Objector?). At the conclusion of the testimony, the Applicant represented that I they would be willing to amend the plans to address the Obj ector?s and the Board?s concerns, including, but not necessarily limited to, constructing the front-yard setback in accordance with the setback of a nearby restaurant, Hemingway?s (also owned by the Objector); moving the proposed HVAC unit and . constructing a knee wall around the HVAC unit; adding a permanent dining room; moving the proposed bar and expanding upon the current kitchen; adding a refuse container on the east side of the structure a minimum of '3 2? from Objelctor?s property line; using reduced-sized recycling containers; and complying with the suggestions of the Township Engineer as set forth in the Technical Revisions and/ or Corrections section of the Engineer?s April 21, 2014 memorandum and set forth in the Resolution of Approval attached hereto at Tab 1. At the conclusion of the hearings, the Board voted to grant the Application and granted a variance for the rear-yard setback, a variance for the front~yard setback and granted a design waiver for off?street parking and further required the Applicant to submit revised plans incorporating the agreed?upon modifications. #3-4 - Factual and Legal Contentions FACTUAL CONTENTIONS The Applicants Saddy Family, LLC and 2-4?6?8 Boulevard, LLC (?Applicants?) applied for a renovation and expansion of the existing Merge bar/restaurant. The use is permitted in the Retail Business (RB) Zone but required a front-yard setback variance on the Boulevard of 1/ 10th of a foot when 10 feet is required and setback on the Franklin Avenue side of the property of 1/10th of a foot when 10 feet is required. Applicants, the owners of the property located 302 Boulevard, Seaside Heights, New Jersey, also known as Lots 66 and 51 in Block 4.01 as designated on the Of?cial Tait Map of Seaside Heights, New Jersey (?the Site?), applied to the Borough of Seaside Heights Planning Board (?Board?) for Preliminary and Final Site Plan Approval and the above-referenced bulk variances (?Application?). Public hearings were held on April a3, 2014 and May 28, 2014. During the I hearings the Board entertained the testimony of John Saddy, the principal of Saddy Family, LLC and the prospective general manager of Merge; Edward Angster, RE, PP, L.S., R.A., the Applicant?s engineer/planner; and Vincent Craparotta, a property owner within 200 feet of the Site, and the principal of ?Plaintiff, C.S. Boulevard Properties, Inc., and the sole objector to the Application (?Obj ector?). At the conclusion of the testimony, the Applicant represented that they would be willing to amend the plans to address the Objector?s and the Board?s concerns, including, but not necessarily limited to, constructing the front-yard setback in accordance ?with the setback of a nearby restaurant, Hemingway?s (also owned by the Objector); moving the proposed HVAC unit and constructing a knee wall around the HVAC unit; adding a permanent dining room; moving the proposed bar and expanding upon the current kitchen; adding a refuse container on the east side of the structure a minimum of 32? from Objector?s property line; using reduced-sized recycling containers; and complying with the suggestions of the Township Engineer as set forth in the Technical Revisions and/ or Corrections section of the Engineer?s April 21, 2014 memorandum and set forth in the Resolution of Approval attached hereto at Tab 1. At the Conclusion of the hearings, the Board voted to grant the Application and granted a variance for the rear~yard setback, a variance for the front-yard setback and granted a design waiver for off?street parking and further required the Applicant to submit revised plans incorporating the agreed-upon modi?cations. #3-4 - Factual and Legal Contentions FACTUAL CONTENTIONS The Applicants Saddy Family, LLC and 2?4?6-8 Boulevard, LLC (?Applicants?) applied for a renovation and expansion of the existing Merge bar/ restaurant. The use is permitted in the Retail Business (RB) Zone but required a front?yard setback variance on the Boulevard of 1/1061 of a foot when 10 feet is required and setback on the Franklin Avenue side of the property of 1/ 10?Eh of a foot when 10 feet is required. Applicants, the owners of the property located 302 Boulevard, Seaside Heights, New Jersey, also known as Lots 66 and 51 in Block 4.01 as designated on the Of?cial Tax Map of Seaside Heights, New Jersey (?the Site?), applied to the Borough of Seaside Heights Planning Board (?Board?) for Preliminary and Final Site Plan Approval and the above?referenced bulk variances (?Application?). Public hearings were held on April 23, 2014 and May 28, 2014. During the hearings the Board entertained the testimony of ohn Saddy, the principal of Saddy Family, LLC and the prospective general manager of Merge; Edward Angster, P.E., P.P, L.S., R.A., the-Applicant?s engineer/ planner; and Vincent Craparotta, a property owner within 200 feet of the Site, andthe principal of Plaintiff, 08. Boulevard Properties, Inc, and the sole objector to the Application (?Obj ector?). At the conclusion ,of the testimony, the Applicant represented that they would be willing to amend the plans to address the Obj ector?s and the Board?s concerns, including, butnot necessarily limited to, constructing the front-yard setback in accordance with the setback of a nearby restaurant, Hemingway?s (also owned by the Objector); moving the proposed HVAC unit and constructing a knee wall around the HVAC unit; adding a permanent dining room; moving the proposed bar and expanding upon the current kitchen; adding a refuse container on the east side of the structure a minimum of 32? from Objector?s property line; using reduced-sized recycling containers; and complying with the suggestions of the Township Engineer as set forth in the Technical Revisions and/ or Corrections section of the Engineer?s April 21, 2014 memorandum and set forth in the Resolution of Approval attached hereto at Tab 1. At the conclusion of the hearings, the Board voted to grant the Application and granted a variance for the rear?yard setback, a variance for the front?yard setback and granted a design waiver for off-street parking and further required- the Applicant to submit revised plans incorporating the agreed-upon modi?cations. #3-4 - Factual and Legal Contentions FACTUAL CONTENTIONS The Applicants Saddy Family, LLC and 2-4-6-8 Boulevard-LLC (?Applicants?) applied for a renovation and'expansion of the existing Merge bar/ restaurant. . The use is permitted in the Retail Business (RB) Zone but required a front?yard setback variance on the Boulevard of 1/ 10th of a foot when 10 feet is required and setback on the Franklin Avenue side of the property of 1/ 10?[11 of a foot when 10 feet is required. Applicants, the owners of the property located 302 Boulevard, Seaside Heights, New Jersey, also known as Lots 66 and 51 in Block 4.01 as designated on the Official Tax Map of Seaside Heights, New Jersey (?the Site?), applied to the Borough of Seaside Heights Planning Board (?Board?) for Preliminary and Final Site Plan Approval and the above?referenced ?bulk variances (?Application?). Public hearings were held on April 23, 2014 and May 28, 2014. During the hearings the Board entertained the testimony of John Saddy, the principal of Saddy Family, LLC and the prospective general manager of Merge; Edward Angster, P.E., P.P, L.S., R.A., the Applicant?s engineer/planner; and Vincent Craparotta, a preperty owner within 200 feet of the Site, and the principal of Plaintiff, C.S. Boulevard PrOperties, Inc., and the sole objector to the Application (?Objector?). At the conclusion of the testimony, the Applicant represented that they would be willing to amend the plans to address the Objector?s and the Board?s concerns, including, but not necessarily limited to, constructing the front-yard setback in accordance with the setback of a nearby restaurant, Hemingway?s (also owned by the Obj ector); moving the proposed HVAC unit and constructing a knee wall around the HVAC unit; adding a permanent dining room; moving the proposed bar and expanding upon the current kitchen; adding a refuse container on the east side of the structure a minimum of 32? from Objector?s property line; using reduced-sized recycling containers; and complying with the suggestions of the Township Engineer as set forth in the Technical Revisions and/ or Corrections section of the Engineer?s April 21, 2014 memorandum and set forth in the Resolution of Approval attached hereto at Tab 1. At the conclusion of the hearings, the Board voted to grant the Application and granted a variance for the rear-yard setback, a variance for the front?yard setback and granted a design waiver for off?street parking and further required the Applicant to submit revised plans incorporating the agreed?upon modi?cations.