Dominick Diminni v. Seaside Heights Planning Board

NOT FOR PUBLICATION WITHOUT THE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-2859-23

DOMINICK DIMINNI,

Plaintiff-Appellant,

v.

SEASIDE HEIGHTS PLANNING

BOARD and ONE OCEAN

TERRACE, LLC,

Defendants-Respondents.

_____________________________

Argued February 25, 2025 – Decided May 23, 2025

Before Judges Firko and Augostini.

On appeal from the Superior Court of New Jersey, Law

Division, Ocean County, Docket No. L-1062-23.

Edward F. Liston, Jr. (Edward F. Liston, Jr., LLC)

argued the cause for appellant.

Barry A. Stieber argued the cause for respondent

Seaside Heights Planning Board (Citta, Holzapfel &

Zabarsky, attorneys; Barry A. Stieber and Steven A.

Zabarsky, on the brief).

Matthew J. Heagen argued the cause for respondent

One Ocean Terrace, LLC (Grossman Heavey & Halpin,

PC, attorneys; Matthew J. Heagan, of counsel and on

the brief).

PER CURIAM

In this prerogative writs action, plaintiff Dominick DiMinni, an objector

at the hearing before the Borough of Seaside Heights Planning Board (Planning

Board), appeals from an April 11, 2024 order affirming the Planning Board's

grant of preliminary and final major site plan approval with (c)(2), (d)(5), and

(d)(6) variances to defendant One Ocean Terrace, LLC (One Ocean Terrace) to

construct new residential buildings on a parking lot near plaintiff's residence.

The judge concluded the Planning Board had jurisdiction to hear the matter and

did not abuse its discretion by granting the (c)(2), (d)(5), and (d)(6) variances,

and therefore, dismissed plaintiff's complaint with prejudice.

We agree and affirm essentially for the reasons set forth in Judge Francis

R. Hodgson, Jr.'s comprehensive decision. The notice of the Planning Board

hearing was compliant with the requirements under the Municipal Land Use Law

(MLUL), N.J.S.A. 40:55D-1 to -171, giving the Planning Board jurisdiction, and

there was ample evidence in the record supporting the Planning Board's approval

of the (c) and (d) variances.

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I.

The material facts are undisputed, and we discern them from the trial

record. In December 2022, One Ocean Terrace filed an application for

preliminary and final site plan approval for construction of seventeen

townhomes in three five-story multi-family buildings in Seaside Heights. The

Property is located at 9 and 11 Ocean Terrace and 24 Porter Avenue, also known

as Block 1, Lots 7, 10, and 19.02, in the Borough of Seaside Heights (Property).

The Property is located in a mixed residential and retail business zone. The

Property currently has a commercial parking lot on it. However, historically,

the Property's uses have varied; for instance, previously, the Property had

McKelvey's Bar and later Frankie's and Johnny's.

Approval of the application for the current development required four

variances: two variances for setbacks, referred to as flexible or bulk (c)

variances; and two variances for density and height, referred to as (d) variances.

The setback variances are for front yard setbacks of five feet on Ocean Terrace

and Porter Avenue, where ten feet is required; and for a driveway width of

twenty-four feet where sixteen feet is the maximum allowable. The (d)

variances include one for density, (d)(5), requesting that each unit have

approximately 1,092 square feet where 1,200 square feet is required; and for

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height of approximately 48.82 feet, (d)(6), where 41 feet is the maximum

allowable height.

One Ocean Terrace published a notice of the public hearing and variance

requests in the Asbury Park Press newspaper and provided a copy to property

owners situated within 200 feet of the Property pursuant to N.J.S.A. 40:55D-12.

The notice read as follows:

PLEASE TAKE NOTICE, that on February 27,

2023, at 6:00 p.m. in the Council Chambers in the

Municipal Building of the Borough of Seaside Heights

Municipal Offices, 901 Boulevard & Sherman Avenue,

Seaside Heights, New Jersey, the Seaside Heights

Planning Board will hold a hearing on the application

of the undersigned, at which time and place all

interested persons will be given an opportunity to be

heard.

The application is for Block 1, Lots 7, 10 and

19.02 as shown on the Borough of Seaside Heights Tax

Map and is located at 9 and 11 Ocean Terrace and 24

Porter Avenue, Seaside Heights, Ocean County, New

Jersey.

The applicant is seeking Board approval of this

major preliminary and final site plan with variances.

The site plan includes three (3) structures which will

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house a total of seventeen (17) residential townhomes.

The applicant seeks the following variances:

• Front yard setback on Porter Avenue

• Front yard setback on Ocean Terrace

• Height

• Lot area/unit

The applicant seeks site plan and variance approval

along with any and all other variances or design waivers

deemed necessary for the purpose of developing this

property according to the submitted plans.

Copies of the application and plans are available for

review at the Borough of Seaside Heights Municipal

Offices, 901 Boulevard & Sherman Avenue, Seaside

Heights, New Jersey, during normal business hours.

The municipal offices were previously located at the address listed in the

notice but had since been moved to 100 Grant Avenue in Seaside Heights. A

notice on the door of the municipal building at the old address stated the

municipal offices' new address was 100 Grant Avenue.

On February 27, 2023, consistent with the notice, the Planning Board held

a public hearing on One Ocean Terrace's application. At the outset of the

hearing, plaintiff challenged the Planning Board's jurisdiction, claiming that

One Ocean Terrace's notice was deficient. After hearing arguments from both

parties, the Planning Board deemed the notice compliant and determined it had

jurisdiction to hear the application on its merits.

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At the Planning Board meeting, One Ocean Terrace presented the

testimony of Matthew Wilder, a professional engineer and planner, who

summarized the project and described the variances being requested. Wilder

testified to the character of the Property, focusing on the visibility and details of

the buildings. He explained that the three buildings would be five stories in

height with a ground level parking area and seventeen town homes. Access to

the Property would be provided via a new driveway onto Ocean Terrace. The

application created the net loss of one public metered parking space. Wilder

stated that, in his view, "the benefits of the deviation substantially outweigh the

detriment[s]," and he saw "no detriment associated with the[] setback

variances."

Wilder explained the need for a density variance, which "is subject to a

weighing analysis." As Wilder further explained, "the applicant must

demonstrate that the site can accommodate the problems typically associated

with a use with a greater density," such as traffic and parking. According to

Wilder, those issues were mitigated because One Ocean Terrace was providing

the necessary parking, and the public was only losing one street parking space.

Finally, Wilder explained the need for a height variance, concluding that

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property can accommodate the proposed deviation and there was no detriment

to the surrounding properties.

Wilder stated that the same goals of the MLUL aimed at promoting the

general welfare were advanced by all the variances sought. He concluded that

the variances sought could "be granted without detriment to the public good and

without substantially impairing the intent or purpose of the zone plan or zoning

ordinance."

Jason Hanrahan, the architect who prepared the project's plans, testified

to the design characteristics of the Property. Hanrahan described the Property

as "a gateway to Seaside Heights," located in a "prominent location," and the

design emphasized these characteristics.

Following the presentation of One Ocean Terrace's case, plaintiff's

counsel cross-examined the witnesses but presented none of his own. Plaintiff

argued that One Ocean Terrace had not proven the need for the variances and

failed to explain how the benefits discussed could not be achieved by

conforming to the code. As plaintiff's counsel explained:

The next question I have is, why does it have to

be [seventeen] units? Why can't it be reduced in height

and setback and a few less units, a little bit better

project? I suspect it's economic, but I don't think one

or two units is going to make a difference in the profit.

Frankly, it's not a bad looking project, but it's just, it's

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not great for the neighborhood and the guy who's

getting gored by that is my client.

At the close of the hearing, the Planning Board unanimously voted to grant

One Ocean Terrace's application. On March 27, 2023, the Planning Board

issued a resolution memorializing the approval. On May 9, 2023, plaintiff filed

a complaint in lieu of prerogative writs, challenging the Planning Board's

jurisdiction and asserting that One Ocean Terrace failed to meet its burden of

proof with respect to the variances.

On September 22, 2023, the judge denied plaintiff's motion for summary

judgment. On April 5, 2024, Judge Hodgson conducted a trial on plaintiff's

complaint, reserving his decision. On April 11, 2024, the judge entered an order,

with an accompanying written opinion, dismissing the complaint with prejudice.

First, the judge determined that the notice was compliant with the MLUL,

establishing the Planning Board's jurisdiction. Second, the judge held that there

was sufficient credible evidence in the record supporting the Planning Board's

determination to grant the variances and found that the Planning Board's

determination that One Ocean Terrace "proposed a better zoning alternative and

satisfied the 'positive' and 'negative criteria'" was not an arbitrary and capricious

decision.

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Plaintiff appeals, reiterating the arguments it made to the judge, including

his challenge to the sufficiency of the notice and the evidence presented in

support of the variances.

II.

Our review of a Planning Board's decision is limited. Smart SMR v.

Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998). Deference

to a planning board is owed "because of [its] peculiar knowledge of local

conditions. . . ." Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965).

Therefore, we give "wide latitude in the exercise of its delegated discretion."

Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (quoting Kramer, 45 N.J. at

296). Because of its expertise and particular knowledge of the local landscape,

a planning board's decision "enjoy[s] a presumption of validity, and a court may

not substitute its judgment for that of the board unless there has been a clear

abuse of discretion." Ibid. (citing Cell S. of N.J., Inc. v. Zoning Bd. of

Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002)).

However, while "recogniz[ing] the board's knowledge of local

circumstances and accord[ing] deference to its interpretation[,]" Fallone Props.,

LLC v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004),

we review the Planning Board's legal conclusions de novo. Wyzykowski v.

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Rizas, 132 N.J. 509, 518 (1993). "In evaluating a challenge to the grant or denial

of a variance, the burden is on the challenging party to show that the zoning

board's decision was 'arbitrary, capricious, or unreasonable.'" Price, 214 N.J. at

284 (quoting Kramer, 45 N.J. at 296).

A. Notice.

Plaintiff contends the judge erred in finding the notice of the public

hearing sufficient and therefore, that the Planning Board had jurisdiction.

Plaintiff argues that the notice was defective because (1) the address of the

location of the project's plans was incorrect; and (2) the notice was

impermissibly vague. In rejecting these claims, the judge concluded that

"common sense dictates" that a member of the public could have easily found

the location of the plans, and the notice provided sufficient information "to

inform the layperson of the nature of . . . the proposed development and whether

it would affect them." We discern no error in the judge's conclusions.

"[P]roper public notice in accordance with the requirements of the MLUL

is a jurisdictional prerequisite for a zoning board's exercise of its authority."

Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397

N.J. Super. 335, 350 (App. Div. 2008) (citing Perlmart of Lacey, Inc. v. Lacey

Twp. Plan. Bd., 295 N.J. Super. 234, 237 (App. Div. 1996)). The "[f]ailure to

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provide proper notice deprives a municipal [P]lanning [B]oard of jurisdiction

. . . ." Shakoor Supermarkets, Inc. v. Old Bridge Twp. Plan. Bd., 420 N.J. Super.

193, 201 (App. Div. 2011) (citing Twp. of Stafford v. Stafford Twp. Zoning Bd.

of Adjustment, 154 N.J. 62, 79 (1998)).

The MLUL requires that the public notice for a variance application

include: (1) "the date, time and place of the hearing," (2) "the nature of the

matters to be considered," (3) "an identification of the property proposed for

development by street address," and (4) "the location and times at which" any

supporting documents for application are available. N.J.S.A. 40:55D-11.

Notice of the hearing "shall be given to the owners of all real property as shown

on the current tax duplicates, located . . . within 200 feet in all directions of the

property which is the subject of such hearing." N.J.S.A. 40:55D-12(b). "Public

notice shall be given by publication in the official newspaper of the

municipality, if there be one, or in a newspaper of general circulation in the

municipality." N.J.S.A. 40:55D-12(a).

The notice need not be "exhaustive." Pond Run, 397 N.J. Super. at 355.

Rather, the MLUL requires only "a common sense description of the nature of

the application, such that the ordinary layperson could understand its potential

impact upon him or her . . . ." Perlmart, 295 N.J. Super. at 239 (holding that

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notice was deficient where notice only alluded to three commercial lots being

created when the proposed use was a shopping center with a K-Mart department

store). The notice should apprise the public and neighboring property owners

of the "nature and character of the proposed development . . . 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." Id. at 237-38. Moreover, a notice should place emphasis on "accurately

identifying the type of use or activity proposed by the applicant" and not on the

"technical zoning term" for the use proposed. Id. at 239 (quoting In re Appeal

of Booz, 533 A.2d 1096, 1098-99 (Pa. Commw. Ct. 1987)).

Here, the notice stated that "[c]opies of the application and plans" were

available for review at the Borough's municipal offices, located at 901

Boulevard & Sherman Avenue, Seaside Heights. However, the municipal

offices had moved to a new location at 100 Grant Avenue—approximately one

block from the location noted in the notice. Moreover, as the trial judge noted,

the new address was prominently posted on the door of the old location and

"direct[ed] people to the new municipal offices located at 100 Grant Avenue."

Furthermore, 901 Boulevard & Sherman Avenue houses the Borough's

police department, and a member of the public seeking the location of the

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application could have easily inquired within as to the new location of the

municipal buildings. There was no evidence demonstrating that a member of

the public, including plaintiff's own counsel, had difficulty locating the plans or

was unable to ascertain the correct location of the plans.

The judge also rejected plaintiff's claim that the notice was insufficiently

vague because it failed to provide a detailed description of the specific size of

the deviations sought in the variances and because it omitted the term "density"

from its description. The judge found the description of the deviations "at issue

passed muster" and the notice provided sufficient detail about the project and

what was being proposed.

The judge concluded that the notice identified with specificity the

variances sought and the nature of proposed project. The judge stated the notice

"clearly informs the public that there are going to be three structures housing

[seventeen] townhouses and that the application will require variances relief

from front yard setback requirements on Ocean and Porter Avenues; height

limitations; and the lot per unit limitation." The record amply supports the

judge's determination that this notice adequately "enable[s] members of the

public to make 'an informed determination' about whether to attend and

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participate in the applicant's land use hearing." See Perlmart, 295 N.J. Super. at

237.

B. Sufficiency of Evidence Supporting Planning Board's Decision.

"Provisions in a zoning ordinance that control the size and shape of a lot

and the size and location of buildings or other structures on a parcel of property

are known as bulk or dimensional requirements." Ten Stary Dom P'ship v.

Mauro, 216 N.J. 16, 28 (2013). "A [planning] board may grant a variance where

the purposes of the [MLUL] 'would be advanced by a deviation from the zoning

ordinance requirements and the benefits of the deviation would substantially

outweigh any detriment,' N.J.S.A. 40:55D-70[(c)](2), provided the applicant can

satisfy the negative criteria." Morris Cnty. Fair Hous. Council v. Boonton Twp.,

230 N.J. Super. 345, 355 (App. Div. 1989).

Under N.J.S.A. 40:55D-70, "[s]ubsection (c)(1) authorizes the grant of

bulk variances justified only upon the finding of hardship arising out of

exceptional" characteristics of the property; whereas subsection (c)(2) "allows

the grant of a variance where the purposes of the [MLUL] would be advanced

by a deviation from the zoning ordinance requirements and the benefits would

outweigh any detriment to the public good." Cox et al., New Jersey Zoning &

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Land Use Administration, § 29-1, at 425 (2025). Unlike subsection (c)(1),

hardship is not a required finding under subsection (c)(2). Id. at 437.

Under subsection (d) of N.J.S.A. 40:55D-70, the grant of a variance "[i]n

particular cases for special reasons," is permitted "to allow departure from

regulations . . . to permit:

(1) a use or principal structure in a district restricted

against such use or principal structure, (2) an expansion

of a nonconforming use, (3) deviation from a

specification or standard pursuant to section 54 of

P.L.1975, c.291 (C.40:55D-67) pertaining solely to a

conditional use, (4) an increase in the permitted floor

area ratio as defined in section 3.1 of P.L.1975, c.291

(C.40:55D-4), (5) an increase in the permitted density

as defined in section 3.1 of P.L.1975, c.291 (C.40:55D-

4), except as applied to the required lot area for a lot or

lots for detached one or two dwelling unit buildings,

which lot or lots are either an isolated undersized lot or

lots resulting from a minor subdivision or (6) a height

of a principal structure which exceeds by 10 feet or 10%

the maximum height permitted in the district for a

principal structure. A variance under this subsection

shall be granted only by affirmative vote of at least five

members, in the case of a municipal board, or two-

thirds of the full authorized membership, in the case of

a regional board, pursuant to article 10 . . . of this act.

The MLUL authorizes a planning board "to grant use variances on the

affirmative vote of five members." Medici v. BPR, 107 N.J. 1, 19 (1987) (citing

N.J.S.A. 40:55D-70(d)). Use variances must be evaluated in the context of the

municipality's masterplan and zoning ordinances to ensure that an application

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for a variance and the planning board's findings do "not substantially impair the

intent and purpose of the zone plan and zoning ordinance." Id. at 4.

Plaintiff contends the Planning Board's decision to grant the (c)(2) setback

variances, the (d)(5), and (d)(6) variances for height and density deviations, and

to approve One Ocean Terrace's site plan application, was arbitrary and

capricious. Further, plaintiff avers the judge erred in his application of the

standards applicable to (c) and (d) variances and in affirming the Planning

Board's decision.

In challenging the Planning Board's decision, plaintiff bears the burden of

proof to "show that the [Planning] Board engaged in 'willful and unreasoning

action, without consideration and in disregard of the circumstances.'" Northgate

Condo Ass'n v. Borough of Hillsdale Plan. Bd., 214 N.J. 120, 145 (2013)

(quoting Worthington v. Fauver, 88 N.J. 183, 204-05 (1982)) (internal quotation

marks omitted). Here, plaintiff did not meet his burden. Plaintiff failed to

demonstrate that the Planning Board disregarded certain circumstances or

ignored evidence that the project would be a "substantial detriment to the public

good" or would negatively impact the surrounding neighborhood." Plaintiff also

failed to show that the project would "substantially impair the intent and purpose

of the zone plan and zoning ordinance." We are satisfied that the Planning

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Board's decision to approve One Ocean Terrace's application with these

variances was not arbitrary, capricious or unreasonable and is amply supported

by the record.

1. The (c) Variances.

N.J.S.A. 40:55D-70(c)(2) "contemplates that even absent proof of

'hardship' pursuant to subsection (c)(1), a bulk or dimensional variance that

advances the purposes of the MLUL can be granted if the benefits of the

deviation outweigh any detriment." Lang v. Zoning Bd. of Adjustment, 160 N.J.

41, 57 (1999). Under subsection (c)(2), an applicant "must satisfy the familiar

negative criteria," namely, 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." Ibid. (citing

N.J.S.A. 40:55D-70(d)). Plaintiff contends neither the positive criteria were

supported by competent evidence and the negative criteria were not established.

Again, we disagree.

One Ocean Terrace sought two variances from setback requirements,

which implicated "concerns such as preservation of light, air, and open space

. . . ." Ten Stary Dom P'ship, 216 N.J. at 32. The Planning Board considered

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the unrebutted testimony of the "sole experts" who testified at the hearing:

Wilder, an engineer and planner, and Hanrahan, an architect.

Wilder explained how several of the Borough's planning goals are

advanced by the granting of these variances: (1) Goal G, "to provide sufficient

space in appropriate locations for a variety of uses, including residential"; and

(2) Goal I, "to promote a desirable, visual environment through good civic

design and arrangement." While noting that parking lots "serve a purpose,"

Wilder testified "[t]hey leave a lot to be desired from an architectural or aesthetic

standpoint." In reviewing the Planning Board's determination, the judge found

adequate basis in the record for the Planning Board's decision to grant these

variances under subsection (c)(2).

Plaintiff further argues that One Ocean Terrace failed to show how the

decreased "[five]-foot setbacks promote public health, safety and welfare in a

way that [ten]-foot setbacks do not." Plaintiff, and not One Ocean Terrace,

however, has the burden of proof to establish the Planning Board's decision as

arbitrary, capricious, and unreasonable. Plaintiff's unsupported claims fail to

satisfy this standard. See Bressman v. Gash, 131 N.J. 517, 530 (1993) (holding

that the record does not have to compel the grant of a variance for the Planning

Board to grant a variation within their discretion).

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As the judge noted, "both Wilder and Hanrahan testified that neighboring

properties would not be affected" by the project. Instead, they "would benefit

from improved aesthetics with the removal of the parking lot, as well as space

for air and light and added landscaping." The project incorporated goals of both

the MLUL and the Borough's Vision Plan, "including branding and aesthetic

concerns given the location at the entrance to the town." Specifically, the

unrebutted expert testimony demonstrated that One Ocean Terrace's

development project advances the Borough's statutory zoning purposes and

benefits the community by "revitaliz[ing]" underutilized properties and

rebranding the Borough, in accord with the Borough's 2009 Vision Plan.

Wilder testified he saw "no detriment associated with these setback

variances." He explained that the setback would be in line with other properties

on the street, and One Ocean Terrace has incorporated landscaping to soften the

aesthetic of the Property. As the judge noted, the neighboring properties would

not be negatively affected; rather, "in actuality, [they] would benefit from

improved aesthetics with the removal of the parking lot, as well as space for air

and light and added landscaping."

Thus, we are satisfied that the substantial and uncontroverted evidence in

the record supports the trial judge's conclusion that (c) variances for the

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proposed project could be granted without substantial detriment to the public

good and without impairing the intent and purpose of the zone plan and zoning

ordinance.

2. The (d) Variances for Density and Height.

One Ocean Terrace's application sought two use variances for deviations

for density and height. Plaintiff contends the record fails to support the density

variance and the record is void of "hardship evidence" to support the height

evidence. These arguments are unpersuasive.

The MLUL defines density as "the permitted number of dwelling units per

gross area of land that is the subject of an application for development, including

noncontiguous land, if authorized by municipal ordinance or by a planned

development." N.J.S.A. 40:55D-4; Grubbs v. Slothower, 389 N.J. Super. 377,

384 (App. Div. 2007). "Density restrictions . . . serve to limit the intensity of

the use of the land to be developed." Id. at 389.

An applicant seeking relief under subsection (d)(5) must demonstrate

"special reasons" justifying the relief sought. N.J.S.A. 40:55D-70(d).

"Generally, there are sufficient 'special reasons' for the grant of a [(d)] variance

under two broad circumstances:

(1) when the refusal to allow the project would impose

on the applicant an undue hardship[] and/or

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(2) when a proposed project carries out a purpose of

zoning as defined in N.J.S.A. 40:55D-2."

[Cox et al., § 32-1, at 469.]

In other words, the "special reasons" derive from the general purposes of

the zoning laws and can be established under three circumstances: (1) the

proposed use inherently serves the public good; (2) the property owner would

suffer an undue hardship if required to use the property in conformance with the

permitted uses; and (3) the proposed use would serve the general welfare

because the property at issue is particularly suited for the proposed use.

Kinderkamack Rd. Assoc., LLC v. Mayor & Council of Oradell, 421 N.J. Super.

8, 13 (App. Div. 2011). N.J.S.A. 40:55D-70 requires an examination of the

negative criteria, which includes a showing "that the increase in density would

not have a more detrimental [e]ffect on the neighborhood than construction of

the project in a manner consistent with the zone's restrictions." Grubbs, 389 N.J.

Super. at 390.

Thus, density variances "are subject generally to the same weighing

analysis that applies to other (d) variances." Price, 214 N.J. at 389. "[I]n

considering such applications, zoning boards of adjustment should focus their

attention on whether the applicant's proofs demonstrate 'that the site will

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accommodate the problems associated with a proposed use with [a greater

density] than permitted by the ordinance."' Grubbs, 389 N.J. Super. at 389

(alteration in original) (quoting Randolph Town Ctr. Assocs., L.P. v. Twp. of

Randolph, 324 N.J. Super. 412, 417 (App. Div. 1999)).

A successful applicant for a density variance therefore

must show that despite the proposed increase in density

above the zone's restrictions, and, thus, the increased

intensity in the use of the site, the project nonetheless

served one or more of the purposes of zoning and was

consistent with the overall goals of the MLUL.

[Ibid.]

Plaintiff argues that the Planning Board made no findings as to the

negative criteria and failed to address the problem relating to traffic. Plaintiff

did not raise any arguments before the Planning Board that an increase in density

would negatively impact parking or traffic. Nonetheless, the record clearly

demonstrates that the experts testified to the minimal impact on traffic and

parking from the increased density. Wilder testified to the minimal impact on

parking, as the plan accounted for only a one space net loss to public parking.

In terms of the impact on traffic, Wilder testified that gates would not be

implemented on the Property because "[t]he last thing we want to do is stop

traffic [on Ocean Terrace]." The judge correctly found that "[t]here was also

sufficient evidence before the [Planning] Board for it to conclude the area could

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accommodate the increased density" because it would have a minimal impact on

parking and traffic.

In terms of a height variance, the MLUL provides, in pertinent part, that

a Planning Board may:

[i]n particular cases for special reasons, grant a

variance to allow departure from regulations pursuant

to article [eight] of this act to permit ... a height of a

principal structure which exceeds by [ten] feet or [ten

percent] the maximum height permitted in the district

for a principal structure.

[N.J.S.A. 40:55D-70(d)(6).]

An applicant seeking a height variance must establish that: (1) the applicant can

show special reasons for the increased height, and (2) the increased height will

not cause "substantial detriment to the public good and will not substantially

impair the intent and the purpose of the zone plan and zoning ordinance."

Grasso v. Borough of Spring Lake Heights, 375 N.J. Super. 41, 48-49 (App. Div.

2004). A planning board should "consider the effect of the proposed height

variance on the surrounding municipalities affected by the decision." Jacoby v.

Zoning Bd. of Adjustment of Englewood Cliffs, 442 N.J. Super. 450, 466

(2015).

Plaintiff argues that the height variance should be vacated because One

Ocean Terrace provided no hardship evidence. Plaintiff argues further that the

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expert "presented no opinion evidence regarding the alleviation of traffic

congestion," and the height variance is being sought solely to serve the "selfish

interest in having superior views . . . ."

Here, One Ocean Terrace wanted to build in excess of the permissible

height. Specifically, forty-one feet is the permitted height, and One Ocean

Terrace sought a variance to extend the height of the building to 48.83 feet—an

increase of 7.83 feet. The trial judge found the "area unique in that it is near the

boardwalk which is elevated and where adjacent structures to the boardwalk are

elevated." Thus, the judge noted "all things are relative," and the increased

height "was part of the design calcul[]us ensuring corridors with enough open

space to allow for views, light and air through the corridors crossing the property

and benefiting the western properties." The Planning Board, as the judge

concluded, found the request more in harmony with the aesthetics of this area

and not a detriment to the surrounding properties. We discern no error in the

judge's analysis.

Plaintiff argues that One Ocean Terrace could build a fully conforming

project, equally beneficial to the community, without the need for any of the

proposed deviations. However, such an argument does not preclude the

Planning Board from approving a project consistent with the Borough's Vision

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Plan and zoning purposes that will promote the general welfare, N.J.S.A.

40:55D-2(a), provide adequate light, air and open space, N.J.S.A. 40:55D-2(c),

and a desirable visual environment, N.J.S.A. 40:55D-2(i). Bressman, 131 N.J.

at 530.

We affirm the trial court's dismissal of plaintiff's action challenging the

Planning Board's grant of site plan approval with the requested variances.

Plaintiff's remaining arguments, to the extent we have not addressed them, lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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