NEWSTEAD HOLMDEL HOA VS. HAZLET TOWNSHIP LAND USE BOARD (L-0163-18, MONMOUTH COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1330-18T3
NEWSTEAD HOLMDEL HOA,
Plaintiff-Appellant,
v.
HAZLET TOWNSHIP LAND
USE BOARD and GODE
HOTELS, LLC,
Defendants-Respondents.
_____________________________
Submitted November 18, 2019 – Decided January 6, 2020
Before Judges Messano and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-0163-18.
Law Offices of Lawrence W. Luttrell, attorneys for
appellant (David W. Trombadore, of counsel and on the
briefs).
Collins, Vella & Casello, LLC, attorneys for
respondent Hazlet Township Land Use Board (Gregory
Walter Vella, of counsel and on the brief).
Gale & Laughlin, LLP, attorneys for respondent Gode
Hotels, LLC (Jeffrey B. Gale, on the brief).
PER CURIAM
The Law Division dismissed the complaint in lieu of prerogative writs that
plaintiff, Newstead Holmdel HOA, brought to challenge the approval by
defendant the Hazlet Township Land Use Board (the Board) of an application
filed by defendant Gode Hotels, LLC (Gode) for a use variance, see N.J.S.A.
40:55D-70(d)(1), multiple bulk variances, and subdivision and preliminary site
plan approval. Gode owns four lots (the property) in Hazlet in close proximity
to the Hazlet-Holmdel municipal border.
At the time of the application, the property contained a two-story Holiday
Inn and adjoining parking lot but was otherwise vacant. Hotels were a permitted
use in the zone under Hazlet's zoning regulations when the Holiday Inn was
constructed, but by the time Gode filed its development application in 2017,
hotels were no longer permitted in the zone. Gode sought to consolidate the
four lots and subdivide them into two. One lot would contain the existing hotel,
with additional physical alterations, and adjacent parking; a new four-story
Holiday Inn Express with parking would be constructed on the other lot. The
plan included cross-access and cross-parking agreements between the two
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newly-created lots and the existing and new hotels, thereby reducing the already
existing deficiency in available parking at the Holiday Inn.
The Board conducted public hearings on Gode's application over four
evenings, during which it heard from a number of professionals and members of
the public who objected to the plan. The Board approved the application and
memorialized the approval in a January 18, 2018 resolution.
Plaintiff, a non-profit corporation of homeowners in nearby Holmdel,
filed suit. Its complaint contended the Board's action was arbitrary, capricious,
and unreasonable because Gode "failed to establish 'special reasons'" for a height
variance for the new hotel, see N.J.S.A. 40:55D-70(d)(6), the proposed
development would cause "substantial detriment to the public good[,]" and
would "substantially impair[ ] the intent and purpose[s] of the zone plan[.]" The
Board and Gode filed answers.
After hearing oral argument, Judge Joseph P. Quinn dismissed the
complaint. In a comprehensive written statement of reasons, Judge Quinn
reviewed the arguments, the testimony before the Board, and the Board's
resolution stating its reasons for approving Gode's application. In particular, the
judge considered plaintiff's challenges to the height and use variance sought for
the new hotel, and plaintiff's contention that Gode failed to meet both the
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positive and negative criteria of the Municipal Land Use Law (MLUL), N.J.S.A.
40:55D-1 to -163. See N.J.S.A. 40:55D-70(d) (providing a variance may be
granted "[i]n particular cases for special reasons," the so-called positive criteria,
if an applicant also demonstrates "that such 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[,]" the so-called
negative criteria); see also Price v. Himeji, LLC, 214 N.J. 263, 285–86 (2013)
(explaining the positive and negative criteria). Judge Quinn entered the order
under review.
Before us, plaintiff does not contend that Judge Quinn incorrectly assessed
the facts or incorrectly applied those facts to the law. Instead, plaintiff advances
arguments never made before the Board or Judge Quinn. It argues that Gode's
application actually sought a variance under N.J.S.A. 40:55D-70(d)(2) because
Gode contemplated the expansion of a nonconforming use, and therefore both
the use variance and subdivision approval must be vacated. Plaintiff further
contends that this infirmity infected Gode's public notice, which made no
mention of a d(2) variance or expansion of a nonconforming use. Lastly,
plaintiff argues that despite its failure to raise these arguments before filing this
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appeal, we should nevertheless consider them because the lack of proper notice
divested the Board of its jurisdiction.
As we have long held, "our appellate courts will
decline to consider questions or issues not properly
presented to the trial court when an opportunity for such
a presentation is available unless the questions so raised
on appeal go to the jurisdiction of the trial court or
concern matters of great public interest."
[Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580,
586 (2012) (quoting Nieder v. Royal Indem. Ins. Co.,
62 N.J. 229, 234 (1973)).]
Plaintiff argues that because Gode's notice failed to include a request for
an allegedly necessary d(2) variance, it deprived the Board of jurisdiction.
Given the obvious public interest in the application, plaintiff says we should
overlook its admitted failure to ever raise these issues before and remand the
matter to the Board to conduct hearings anew as to whether Gode satisfies the
requirements for a d(2) variance.
We recognize those cases that hold the "[f]ailure to provide adequate
notice, or proceeding upon defective notice, deprives a land use board of the
power to take any official action and renders null and void any decisions it has
made." Northgate Condo. Ass'n v. Borough of Hillsdale Planning Bd., 214 N.J.
120, 138 (2013) (citing Twp. of Stafford v. Stafford Twp. Zoning Bd. of
Adjustment, 154 N.J. 62, 79 (1998)). "Proper notice requires, among other
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things, that public notices of applications before a zoning board state 'the nature
of the matters to be considered.'" Shakoor Supermarkets, Inc. v. Old Bridge
Twp. Planning Bd., 420 N.J. Super. 193, 201 (App. Div. 2011) (quoting N.J.S.A.
40:55D-11). We described the purpose for this requirement in Perlmart of
Lacey, Inc. v. Lacey Twp. Planning Bd.:
It is . . . plain that the purpose for notifying the public
of the "nature of the matters to be considered" is to
ensure that members of the general public who may be
affected by the nature and character of the proposed
development are fairly apprised thereof so that they
may make an informed determination as to whether
they should participate in the hearing or, at the least,
look more closely at the plans and other documents on
file.
[295 N.J. Super. 234, 237–38 (App. Div. 1996)
(quoting N.J.S.A. 40:55D-11).]
One need only look at the comprehensive notice provided by Gode in advance
of the public hearings in this case to realize that it satisfied the statutory
requirements, even though it characterized the variance request as a use variance
under d(1), not a d(2) variance. The transcripts reveal the active participation
of the public speakers, who obviously had full knowledge of what the
development application contemplated if approved.
We of course recognize there is a difference in the standard to be applied
to a d(2) variance. See, e.g., Nuckel v. Borough of Little Ferry Planning Bd.,
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208 N.J. 95, 107 (2011) ("Nonconforming uses are not to be 'enlarged as of right
except where the change is so negligible or insubstantial that it does not warrant
judicial or administrative interference.'") (quoting Belleville v. Parillo's, Inc., 83
N.J. 309, 316 (1980)). But here, there are legitimate arguments as to whether
Gode's application sought the expansion of a nonconforming use, requiring a
d(2) variance, as opposed to a standard use variance under d(1). The argument
never having been raised before, we fail to see why either the public interest, or
a belated claim that the Board lacked jurisdiction, should sway us from well-
known principles of appellate jurisprudential restraint.
Finally, the last hearing in this matter before the Board took place more
than two years ago. Plaintiff filed its complaint nearly two years ago. The
parties were before Judge Quinn in October 2018. Yet, the arguments now
asserted were never raised before. Fairness dictates finality.
Affirmed.
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