MON-L-002989-22 10/31/2023 Pg 1 of 10 Trans ID: LCV20233257635

PREPARED BY THE COURT

JLD INVESTMENT GROUP, LLC, SUPERIOR COURT OF NEW JERSEY

LAW DIVISION: MONMOUTH COUNTY
Plaintiff(s), Docket No: MON-L-2989-22

vs. Civil Action

CITY OF ASBURY PARK; CITY OF

ASBURY PARK PLANNING BOARD;
JOHN and/or JANE DOES 1-Z (Names
Fictitious); and XYZ COMPANIES 1-10
(Names Fictitious),

Defendant(s).

THIS MATTER having been brought before the Court on application of JLD Investment
Group, represented by Joshua Joseph Koodray, Esq. and Thomas Prol, Esq., with Defendants
represented by Amanda M. Rochow, Esq. and Eric Nemeth, Esq., the Court, having reviewed the
papers filed, for good cause shown, and following a trial;
31st day of October, 2023;
IT IS on this ______
ORDERED that,
1. Plaintiff’s prayer for relief is GRANTED, in part. The September 12, 2022 Resolution
addressing Application PB2022-03 is vacated. Matter is remanded to the City of Asbury
Park Planning Board with instruction to grant the application for preliminary site plan
approval. All other requested reliefs are dismissed without prejudice.
ORDERED that a copy of this order shall be deemed effectuated upon all parties upon its
upload to eCourts. Pursuant to Rule 1:5-1(a), movant shall serve a copy of this Order upon all
parties not electronically served within seven (7) days of the date of this Order.

/s/_Gregory L. Acquaviva ___

Hon. Gregory L. Acquaviva, J.S.C.

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Statement of Reasons

In this action in lieu of prerogative writ, JLD Investment Group, LLC (JLD)

challenges the Asbury Park Planning Board’s September 12, 2022 resolution

(Resolution) denying its application for preliminary subdivision approval.

Because the Board was required to approve the fully conforming, “by right”

subdivision application consistent with the Supreme Court’s interpretation of

N.J.S.A. 40:55D-48.b, see Pizzo Mantin Group v. Township of Randolph, 137 N.J.

216 (1994), this court is compelled to grant the requested relief and vacate the

Resolution.

Background

The property at issue – 701-705 Second Avenue, Asbury Park – is in the R-1

Single-Family Residential Zone. On that approximately 1.2-acre tract stands the

Holy Spirit Church (Church). Built in the 1880s, the church was recently

deconsecrated. Also on the tract is a three-story rectory and a detached garage.

Although JLD originally sought to preserve the Church through low- and

moderate-income residential use, when negotiations failed, JLD instead proceeded

on an application to raze the Church and, in its stead, construct six single-family

homes.

JLD’s application was heard over four public hearings. Following feedback

from the Board’s professionals, JLD made minor changes to its proposal to obviate

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the need for any design waivers, by addressing concerns regarding garages, trees,

and fencing. Accordingly, JLD’s preliminary subdivision application was fully

compliant with R-1 zoning requirements and did not need any variances, waivers,

or any other relief. Put simply, it was fully conforming.

Nevertheless, the Board denied JLD’s application, 4-2.

Standard of Review

Board action is presumed valid, Kenwood Assocs. v. Bd. of Adj., 141 N.J.

Super. 1, 4 (App. Div. 1976), and is accordingly afforded “substantial deference,”

N.Y. SMSA, L.P. v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App.

Div. 2004). A board’s determination, however, will be overturned if “so arbitrary,

capricious, or unreasonable as to amount to an abuse of discretion.” Ocean County

Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adj., 352 N.J. Super. 514, 521-22

(App. Div. 2002).

Prerogative Writ Analysis

N.J.S.A. 40:55D-48.b states, in relevant part: “The planning board shall, if

the proposed subdivision complies with the ordinance and this act, grant

preliminary approval to the subdivision.” (Emphases added).

Where a question of statutory interpretation is posed, courts “begin with the

statute’s plain language – our polestar in discerning the Legislature’s intent.” L.W.

v. Toms River Reg’l Schs. Bd. of Educ., 189 N.J. 381, 400 (2007) (Zazzali, C.J.).

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“If the language is plain and clearly reveals the statute’s meaning, the [c]ourt’s sole

function is to enforce the statute according to its terms.” Frugis v. Bracigliano, 177

N.J. 250, 280 (2003).

Nevertheless, background informs the analysis. Specifically, the Municipal

Land Use Law (MLUL) “redefined the powers and functions of a planning board

in the review of subdivision applications.” Pizzo, 137 N.J. at 225. The goal:

“standardize the procedures to be employed by the various administrative agencies

such as . . . planning boards.” Ibid. (quoting Senate County & Municipal

Government Committee, Statement to Senate Bill No. 3054, at 67 (1975)).

With that backdrop, Pizzo addressed a planning board’s “scope of authority”

to reject preliminary subdivision approval for an application that “complies with

the municipal subdivision and zoning ordinances” based on “considerations of the

general welfare, the purposes of the [MLUL], and sound planning.” Id. at 219.

There, specifically, the tract was in an “environmentally-sensitive area.” Ibid.

Writing for a unanimous Court, Justice Handler wrote that unlike the

MLUL’s precursor which granted a planning board power to consider dangers

from flood, fire, erosion, or other menace, the MLUL – specifically N.J.S.A.

40:55D-48 – precisely and expressly mandates approval of a subdivision

application compliant with all zoning requirements.

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In rejecting the board’s argument there that the board had “inherent power to

deny a proposal” where denial would “guide the appropriate use or development of

all land . . . in a manner which will promote the public health, safety, morals, and

general welfare,” the Court reiterated the mandatory nature of N.J.S.A. 40:55D-48

as demonstrated by the word “shall” – a compulsory requirement that harmonized

with the “legislative design to require consistency, uniformity, and predictability in

the subdivision-approval process.” Id. at 226-229. That plain interpretation of

“shall,” according to the Court, did “not in any sense eliminate or deprecate the

significance of the public welfare . . . [but r]ather channels the manner in which

those essential concerns may be considered and brought to bear in the subdivision

process.” Id. at 229.

Particularly relevant here is that the tract in Pizzo contained “areas of

‘historical significance’ that would not be preserved” if the subdivision were

approved. Id. at 231. As here, “[t]hose concerns were reflected in the board’s

determination that the proposed subdivision was not suitable or consistent with the

principles of sound planning as reflected in the general purposes of the MLUL.”

Ibid. Nevertheless, the Court affirmed the Appellate Division’s decision which

concluded that the Board acted arbitrarily and capriciously in violation of N.J.S.A.

40:55D-48.

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Pizzo remains good law and has been repeatedly adhered to by New Jersey

courts which now refer to compliant subdivision applications – like JLD’s here –

as “by-right applications.” Gandolfi v. Town of Hammonton, 367 N.J. Super. 527,

536 (App. Div. 2004); accord Klug v. Bridgewater Twp. Planning Bd., 407 N.J.

Super. 1, (App. Div. 2009) (observing that “because the new application complied

with all ordinances and required no variance or waiver, the Board was required to

approve it.” (emphasis added; citing Pizzo, 137 N.J. at 226)). Put plainly:

[A] planning board’s authority in reviewing an application

for site plan or subdivision approval is limited to
determining whether a development plan conforms with
the zoning ordinance and the applicable provisions of the
site plan or subdivision ordinance. A planning board has
no authority to deny site plan approval based on its view
that a use permitted under the zoning ordinance . . .is
inconsistent with principles of sound zoning.

[Sartoga v. Borough of West Paterson, 346 N.J. Super.

569, 582-83 (App. Div. 2002) (emphasis added).]

Analogous to the circumstances here are those in Green Meadows at

Montville, LLC v. Planning Board of Township of Montville, 329 N.J. Super. 12

(App. Div. 2000). There, the planning board rejected an application seeking to

subdivide an 8.5-acre tract into eight lots for construction of single-family

dwellings. Among the eight rationales cited by the board were: (1) the master

plan’s identification of the tract as a potential site for a neighborhood park; and (2)

preference for the lot to remain undeveloped due to its proximity to a major

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thoroughfare. The trial court reversed the board’s decision and ordered the board

to approve the application. Citing Pizzo, the Appellate Division affirmed.

As to the two identified grounds relevant here, the panel wrote: “All of the

other justifications . . . amount to a statement of the Board’s opinion that the plan

as submitted does not conform to a satisfactory standard of land use. Pizzo[] holds

that such generalizations do not provide a legally sustainable basis for rejection of

a subdivision.” Id. at 19 (emphasis added).

The circumstances here are legally indistinguishable from Pizzo and Green

Meadows. Here, in the terse, four-page Resolution, the only rationales for the

Board’s actions were that: (1) the application does not comply with the master

plan; and (2) that the Church was historical.

With respect to compliance with the master plan, the Board implicitly

contends – without any authority to governing law – that the master plan (which

informs zoning regulations) trumps zoning regulations. Such an argument is in

direct contravention to Green Meadows which has already – in a published,

binding opinion – rejected such a contention.

With respect to the Church’s historical significance, although the Board

observes that the Church is listed on the Monmouth County Historic Site

inventory, the Board fails to produce any authority indicating that such inclusion

impacts, as a matter of law, application of N.J.S.A. 40:55D-48.b or the binding

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precedents cited above. Indeed, and again, Pizzo, addressed a property of

“historical significance” and, nevertheless, concluded that the board there was

obligated to approve a fully conforming subdivision application – a result from the

State’s high court that must be followed here.

At day’s end, the Board’s decision reflects a preference for preservation of

the Holy Spirit Church over its demolition and replacement with single family

homes. That preference is understandable. There is – and can be – no dispute

regarding the Holy Spirit Church’s historic nature nor aesthetic beauty.

The Board’s desire to preserve the Church, however, is not germane to

JLD’s fully compliant, “by right” application for preliminary subdivision approval.

Nor does that preference empower the Board to ignore the clear, express legislative

directive in N.J.S.A. 40:55D-48.b mandating approval. Put another way, as the

unanimous Supreme Court made patent in Pizzo, “shall” means “shall,” and the

Board is without discretion to deviate from that plain, unambiguous statutory

language based on policy preference, “feel,” nor sweeping, ambiguous concerns

about general welfare. The Board was duty bound to approve this “by right”

application which fully comported with all governing zoning requirements.

Therefore, this court must conclude that the Board’s action in violation of

N.J.S.A. 40:55D-48.b, as interpreted by Pizzo, was an error of law amounting to an

arbitrary, capricious, and unreasonable action. Accordingly, this court is

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constrained to vacate the Resolution and remand the matter to the Board for

approval of the preliminary subdivision application.

Other Claims

In addition, JLD advances claims that the defendants violated its

constitutional rights under the New Jersey Civil Rights Act and failed to “turn

square corners,” see F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418,

427 (1985). These claims are not ripe and, accordingly, must be dismissed, albeit

it without prejudice.

A civil rights violation in the context of a land use determination requires

evidence of governmental action that “shocks the conscience.” Rezem Family

Assocs., L.P. v. Millstone, 423 N.J. Super. 103, 114-15 (App. Div. 2011). “The

reason for this high standard of proof is to prevent zoning appeals from being

converted into civil rights claims.” Id. at 115 (citing United Artists Theater

Circuit, Inc. v. Warrington, 316 F.3d 392, 402 (3d Cir. 2003)).

In recognition of United Artists’ instruction, New Jersey courts require an

aggrieved party to exhaust its “administrative and judicial remedies” before

proceeding to a civil rights action. William M. Cox & Stuart R. Koenig, New

Jersey Zoning & Land Use Administration, Sect. 40-2.3, pg. 561 (2022 ed.)

(emphasis added; collecting cases). Whether described as exhaustion of remedies,

ripeness, or the “finality rule,” the Appellate Division in Rezem Family held

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“plaintiff’s substantive due process claims in a land use case require a showing

either that plaintiff has obtained a final decision under available state procedures or

that such an attempt would have been futile.” 423 N.J. Super. at 118 (emphasis

added); accord Casser v. Knowlton, 441 N.J. Super. 353, 366 (App. Div. 2015)

(observing that “by whatever theory the plaintiff asserted its claims, they were

barred by plaintiff’s failure to pursue local administrative remedies followed by an

action in lieu of prerogative writs” (emphasis added).

Accordingly, this court is constrained to dismiss, without prejudice, those

counts of the complaint. Plaintiff did not object to this relief at oral argument.

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