                        NOT FOR PUBLICATION WITHOUT THE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-3839-16T1

CT TR HOLDINGS, LLC, DT TR
HOLDINGS, LLC, CT95-CT07
TR HOLDINGS, LLC, and DT95-DT-07
TR HOLDINGS, LLC,

       Plaintiffs-Appellants,

v.

TOMS RIVER PLANNING BOARD and
SEASIDE HEIGHTS HOSPITALITY, LLC,

     Defendants-Respondents.
_______________________________________

              Argued July 31, 2018 – Decided August 9, 2018

              Before Judges Sabatino, Mayer and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Docket No. L-2411-
              16.

              R.S.   Gasiorowski   argued  the  cause   for
              appellants    (Gasiorowski   and   Holobinko,
              attorneys; R.S. Gasiorowski, on the briefs).

              Gregory P. McGuckin argued the cause for
              respondent Toms River Planning Board (Dasti,
              Murphy, McGuckin, Ulaky, Koutsouris & Connors,
              attorneys; Gregory P. McGuckin, of counsel;
              Martin J. Buckley, on the brief).

              Michael B. York argued the cause for
              respondent Seaside Heights Hospitality, LLC,
             (Novins, York & Jacobus, attorneys; Michael
             B. York, on the brief).

PER CURIAM

       Plaintiffs, property owners in Toms River Township, appeal

from   the   trial   court's   April    3,    2017   order    rejecting      their

challenge    to   the    Township    Planning     Board's    approval      of   the

defendant developer's land use application to build a four-story

hotel in the Township.         Plaintiffs contend the Planning Board:

lacked jurisdiction over facets of the application; failed to find

the undue hardship needed to justify a deviation from the zoning

ordinance's       limitation    of     buildings      to      three       stories;

unjustifiably granted numerous variances; and acted, on the whole,

arbitrarily and capriciously in approving the application.

       For the reasons that follow, we affirm the trial court's

sound decision in all but one respect.            We remand for the limited

and sole purpose of the Planning Board reopening the matter to

consider whether the developer is entitled to a variance under

either    N.J.S.A.      40:55D-70(c)(1)      or   (c)(2)     from   the     zoning

ordinance's three-story limitation.

                                       I.

       The developer, defendant Seaside Heights Hospitality, LLC

("SHH"), is the owner of Block 1077, Lots 1 and 2 in Toms River

Township.    The property is on the north (westbound) side of State


                                       2                                   A-3839-16T1
Highway 37 and is situated in the Township's Highway Business

Zoning District.       The property is presently the site of the Pine

Rest Motel.

        SHH proposes to replace the existing motel with a new Hampton

Inn Hotel, with associated parking and amenities.             The new hotel

would contain seventy-two guest units and occupy four stories.              A

hotel use is permitted in the zone. However, SHH requested several

variances, as shown in this chart.1

    Principal        Required/               Proposed       Ordinance
    Building         Permitted
    Minimum front    60 feet                 38.61 feet     348-
    yard   setback                                          10.26E(5)(a)
    (Route 37)
    Minimum front    60 feet                 51.82 feet     348-
    yard   setback                                          10.26E(5)(a)
    (Adams Avenue)
    Maximum          40 feet, 3 useable 43   feet,        4 348-10.26E(8)
    building         floors             useable
    height                              floors


    Parking         Required/            Proposed          Ordinance
                    Permitted
    Minimum Parking 81                   72                348-
    Spaces                                                 8.20(O)(24),
    (Including                                             (14), (32)
    hotel, meeting
    room,       and
    restaurant)
    Minimum         4                    3                 348-8.38B
    Handicapped
    Parking Spaces

1
  The chart is derived from the third planning report in the
plaintiffs' appendix.


                                     3                              A-3839-16T1
    Isles2            10 feet wide       4 feet     to   7 348-8.20J(8)
                                         feet


    Fence          Required/             Proposed          Ordinance
                   Permitted
    Front     Yard 60 feet               1 foot            348-8.13A
    Setback (Adams
    Avenue)


    Refuse            Required/          Proposed          Ordinance
    Enclosures        Permitted
    Minimum   Front   60 feet            20 feet           348-8.27A
    Yard Setback
    Minimum           10 feet            4 feet            348-8.27I
    Distance   from
    Side   Property
    Line


    Ground Signs   Required/             Proposed          Ordinance
                   Permitted
    Minimum   Sign 30 feet               2.2 feet          348-
    Setback   from                                         8.26A(3)(c)
    ROW
    Maximum Height 30 feet               38   feet,      6 348-8.26A(4) &
    (Left      Side                      inches            348-
    Elevation)                                             8.26A(2)(Table
                                                           1)
    Maximum Height 30 feet               38   feet,      6 348-8.26A(4) &
    (Right     Side                      inches            348-
    Elevation)                                             8.26A(2)(Table
                                                           1)
    Maximum Height 30 feet               38   feet,      6 348-8.26A(4) &
    (Rear                                inches            348-
    Elevation)                                             8.26A(2)(Table
                                                           1)



2
  Although not contained in the third planning report, this
particular variance was discussed and granted at the public
hearing.

                                     4                                 A-3839-16T1
     In January 2016, SHH applied to the Planning Board, seeking

preliminary and final major site plan approval for the proposed

hotel, including the above-noted variances and several design

waivers.    On July 6, 2016, the Planning Board conducted a public

hearing on SHH's application.     Professional engineer Brian Murphy,

the sole witness, testified as an expert for SHH.3

     As described by Murphy, along the south side of the property

is Route 37 and various marinas, along the west side is a self-

storage facility and woods, along the east side is a dog grooming

facility,   and   along   the   north   side   is   Adams   Avenue    and    a

residential development.        The residential development does not

front Adams Avenue.       All of the residences abut the subject

property through rear yards.

     Because the proposed project does not have any access points

from Adams Avenue, Murphy concluded the project would cause no

intrusion into the residential area.           There would be a single

point of access to the new hotel from Route 37.              SHH plans to

provide a curb and sidewalks along both Route 37 and Adams Avenue.

     Regarding the front setbacks, Murphy stated that the main

building conforms to the zone's setback requirements.            However,


3
  Murphy had testified before the Planning Board in the past, and
the Board accepted him as an expert witness. His full credentials
(which plaintiffs do not challenge) are not detailed in the record
supplied on appeal.

                                    5                                A-3839-16T1
he noted variances were necessary because the canopy along Route

37 and the doorway of the rear entry at the bottom level along

Adams Avenue involved a "unique situation," in which there were

two front setbacks associated with the property.

     As to the building height, Murphy noted that the requested

height of forty-three feet was about a seven and one-half percent

increase above the forty-foot maximum because the front setbacks

had lowered the amount of buildable area.          Murphy further noted

that the property is located in a flood zone and the existing

structures are all under the permitted floor elevation.           Because

the new building will be complying with the floor elevation limits,

the main floor and "mechanicals" will be above the floor elevation

and everything else would be "pushed up" as well. Murphy commented

that this arrangement has a better visual impact for the area and

the property, and that the actual footage of the height variance

is three feet, less than the ten percent maximum set forth in

N.J.S.A. 40:55D-70(d)(6).        Murphy noted that having four stories

instead of three makes the building more visible.

     Murphy explained that to use the meeting room (which is likely

going to be a fitness room) or the restaurant area, customers

would have to be patrons of the hotel, so providing separate

parking   for   such   persons   is   not   necessary.   Murphy   further

explained that SHH wants to remove an existing fence and install

                                      6                           A-3839-16T1
a newer, more attractive-looking, one along Adams Avenue.                The

replacement fence will provide a better physical and visual barrier

between the new hotel and the residential units.

      Murphy noted that the refuse area, which is located in the

northeast corner of the property, requires variances.              Although

the Adams Avenue area functions as a back area, it is actually a

front yard, and the ordinance disallows a refuse area in front

yards.       Murphy also requested a variance for a proposed pylon

sign.

      Murphy explained that SHH did not propose a loading zone

because the building was self-sufficient, other than loading for

coffee and orange juice during off-hours.           Murphy explained that

because of the location of the parking stalls, SHH is providing a

physical buffer between the aisle and the parking areas.

      Murphy reported that SHH had met with representatives of the

State Department of Environmental Protection, and was told SHH did

not   need    to   conduct   water   quality   improvements,   because   any

drainage installed would not be effective due to tidal conditions,

and the stone on the site had been compacted for over fifty years.

Moreover, CAFRA approval had already been granted.             Although SHH

planned on reducing the water flow and runoff slightly, the runoff

impact on the area was negligible.



                                       7                            A-3839-16T1
      As Murphy acknowledged, SHH did require variances for parking

and access.   A Board member expressed concerns about access for

emergencies, and suggested a gate in the fence and a depressed

curb for emergency vehicles to access the building from the back.

SHH agreed to do this.   Board members also asked questions about

parking, the hotel rooms, the showers, and the landscaping.      SHH

agreed to move the fence in to allow planting on the exterior.

      On the whole, Murphy opined that the assorted variances and

design waivers sought by SHH could be granted without substantial

detriment to the zoning ordinance and master plan.    He testified

the overall plan was an upgrade to what exists now because of the

improved safety against flood and better visual design.

      He asserted that the overall benefits of the proposed hotel

outweigh any detriments. No questions were posed from the audience

at the hearing.

      The Board unanimously voted to approve the project.        The

Board passed the associated written resolution on July 20, 2016.

      Plaintiffs, CT TR Holdings, LLC, DT TR Holdings, LLC, CT95-

CT07 TR Holdings, LLC, and DT95-DT-07 TR Holdings, LLC, are owners

of Block 688.03, Lot 27 in the Township. As represented by counsel

at the appellate oral argument, plaintiffs' property does not abut

the subject parcel and is apparently within about a half mile of

it.

                                 8                          A-3839-16T1
     In August 2016, plaintiffs, who had not appeared at the

Planning Board hearing to oppose the application, filed an action

in lieu of prerogative writs in the Law Division, contesting the

approval of SHH's project.      After briefing, the trial court heard

oral argument on April 3, 2017.         That same day, the court issued

an   order    upholding   the   Board's   decision      in    all   respects,

accompanied by a detailed fifteen-page written opinion.

     Among other things, the trial court found that the Planning

Board had jurisdiction over SHH's application.               It specifically

concluded that SHH did not need to obtain from the Zoning Board

of Adjustment a variance for the height of the building under

N.J.S.A.     40:55D-70(d)(6).    The    court   found   subsection     (d)(6)

inapplicable because the height variance of three feet sought by

SHH was less than ten percent of the maximum permitted height of

forty feet.     The court also noted that there was "undue hardship"

to justify the slight deviation from the height restriction because

of flood zone requirements and FEMA regulations.

     The trial court analyzed numerous other challenged aspects

of the Planning Board's decision, and rejected those challenges.

The court recognized that the law generally calls for considerable

deference to land use bodies in reviewing their findings. Applying

those principles of deference, the court found ample evidence in

the record supports the Board's grant of the variances and its

                                    9                                 A-3839-16T1
determination    that   the    approvals         will   not    cause   substantial

detriment to adjacent property owners.                  Consequently, the court

dismissed plaintiffs' complaint.

       On this appeal, plaintiffs argue that: (1) SHH required a

(d)(6) variance from the Zoning Board of Adjustment; (2) the record

lacked evidence to support a (c)(1) variance for the nonconforming

number of stories, and the Planning Board made no finding of undue

hardship to justify such relief; and (3) the collective grant of

numerous other variances has essentially "rezoned" the property

and inflicted "substantial detriment" upon surrounding properties

"by minimizing setbacks, eliminating buffers, and creating unsafe

and deficient parking."        The Planning Board and SHH oppose those

assertions,    and   advocate      that     we    affirm      the    trial   court's

decision.4

                                      II.

       As the trial court aptly recognized, the scope of judicial

review in this land use matter is circumscribed.                    "[P]ublic [land

use]   bodies,   because      of   their    peculiar       knowledge     of     local

conditions, must be allowed wide latitude in their delegated

discretion."     Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597

(2005) (citing Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268,


4
  We were advised at oral argument that the hotel project has not
yet been built, in light of the pendency of this appeal.

                                      10                                      A-3839-16T1
296 (1965), and upholding the grant of a hardship variance).                   The

ordinary standard of judicial review applied to such decisions by

a   land    use    body   is    to     determine   whether    the   decision   was

"arbitrary, capricious, or in manifest abuse of its discretionary

authority . . . ."        Ibid.

      As    the    Supreme     Court    has    repeatedly   instructed,   "courts

ordinarily should not disturb the discretionary decisions of local

[land use] boards that are supported by substantial evidence in

the record and reflect a correct application of the relevant

principles of land use law."             Lang v. Zoning Bd. of Adjustment of

the Borough of N. Caldwell, 160 N.J. 41, 58-59 (1999).                "Even when

doubt is entertained as to the wisdom of the action, or 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."        Kramer, 45 N.J. at 296-97.

      That said, determinations on questions of law in land use

matters do not warrant equivalent deference, and are reviewed de

novo.      Bubis v. Kassin, 184 N.J. 612, 627 (2005).                The de novo

standard of review of such legal decisions continues on appeal

after a trial court has made its own ruling.                See James R. Ientile,

Inc. v. Zoning Bd. of Adjustment, 271 N.J. Super. 326, 329 (App.

Div. 1994) (citing Cherney v. Matawan Borough Zoning Bd. of

Adjustment, 221 N.J. Super. 141, 144-45 (App. Div. 1987)).

                                          11                              A-3839-16T1
     The primary focus of plaintiffs' appeal centers upon the

hotel project's deviations from the building height and floor

restrictions set forth in the Township's code.                    In that regard,

Section   348-10.26(E)(8)       of   the      code   prescribes    the   following

limitations for structures within the highway business zone:

               Maximum building height: 40 feet subject to
               the provisions of § 348-5.125. In any event,
               the building shall not contain more than three
               usable floor levels counted vertically at any
               point in the building above the grade level
               as determined by the average grade elevation
               of the corners of the building.

               [(Emphasis added).]

This portion of the governing ordinance thus imposes two distinct

requirements: (1) that the building be no more than forty feet

high; and (2) that the building contain no more than three stories.

Here,    SHH    seeks   to   build   a   hotel       that   deviates   from     these

requirements, with a structure that would be three feet over the

height limitation and contain a disallowed fourth story with guest

rooms.

     Pursuant to the Municipal Law Use Law ("MLUL"), N.J.S.A.

40:55D-1 to -163, a "subsection (d)(6)" height variance is required

when "a height of a principal structure . . . exceeds by 10 feet

or 10% the maximum height permitted in the district for a principal


5
  The cross reference to Section 348-5.12 does not bear upon this
case.

                                         12                                   A-3839-16T1
structure."    See also Shri Sai Voorhees, LLC v. Twp. of Voorhees,

406 N.J. Super. 497, 504 (Law Div. 2009).          The power to grant such

a variance under subsection (d)(6) ordinarily would fall within

the jurisdiction of the local Zoning Board of Adjustment. N.J.S.A.

40:55D-70.

     Conversely, if the height of a proposed structure only exceeds

the maximum permissible height by less than ten feet and by less

than ten percent, then a (d)(6) variance is not needed, and the

applicant    can    instead    seek   relief   through    a   variance     under

subsection (c)(1) or (c)(2) of the statute.6              Shri Sai, 406 N.J.

Super. at 504; see also Cox, Koenig, Drill & John-Basta, New Jersey

Zoning & Land Use Administration, § 35-4 at 755-56 (2018).                   Such

variances under subsection (c) may be issued by a local Planning

Board   as   part   of   a   land   use   application    within   that    body's

jurisdiction. Shri Sai, 406 N.J. Super. at 504. See also N.J.S.A.

40:55D-70(c).

     The trial court concluded that a (d)(6) height variance was

not necessary in this case, since the three extra feet that deviate


6
  A leading land use treatise advises that "[w]here the [ordinance]
limitation as expressed in stories is exceeded but the limitation
in feet is not it would seem appropriate to treat the application
as a c variance inasmuch as the [d(6) provision of the] statute
requires that the structure exceed the height limitation by '10
feet or 10%.'" Cox, Koenig, Drill & John-Basta, New Jersey Zoning
& Land Use Administration, § 29-3.4 at 649.


                                      13                                 A-3839-16T1
from the ordinance's forty-foot height limitation fall within the

ten-foot   and    ten-percent   statutory      exceptions.     We      agree.

Consequently, the Planning Board properly exercised jurisdiction

to consider SHH's request for a (c)(1) height variance.

     N.J.S.A. 40:55D-70(c)(1) sets forth these criteria to qualify

for a subsection (c)(1) variance:

           Where:   (a)   by    reason   of   exceptional
           narrowness, shallowness or shape of a specific
           piece of property, or (b) by reason of
           exceptional    topographic    conditions    or
           physical   features   uniquely   affecting   a
           specific piece of property, or (c) 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 pursuant to article 8 of this act[]
           would result in peculiar and exceptional
           practical difficulties to, or exceptional and
           undue hardship upon, the developer of such
           property, grant, upon an application or an
           appeal relating to such property, a variance
           from   such   strict   application   of   such
           regulation so as to relieve such difficulties
           or hardship . . . .

           [(Emphasis added).]

"Generally, a variance under c(1) must be grounded in conditions

peculiar   to    the   particular   lot   as   distinguished   from     other

properties in the zone."        Cox, Koenig, Drill & John-Basta, New

Jersey Zoning & Land Use Administration, § 29-2.4 at 618.

     In addition, an applicant for a subsection (c)(1) variance

must demonstrate that: (1) the application would not cause a

                                    14                                A-3839-16T1
substantial detriment to the public good, and (2) that the variance

will not substantially impair the intent and purpose of the zone

plan and zoning ordinance.    Ten Stary Dom P'Ship v. Mauro, 216

N.J. 16, 29 (2013).

     As noted, an applicant for a subsection (c)(1) variance    must

also show undue hardship.    Lang, 160 N.J. at 52-53.   The concept

of undue hardship in this context solely refers to the particular

physical conditions of the property and not to personal financial

hardship.   Ten Stary, 216 N.J. at 29-30.

     Here, the Planning Board determined, and the trial court

agreed, that the flood zone requirements for the subject property

created an undue hardship.    SHH's expert explained the existing

motel building does not comply with the FEMA regulations that came

into effect after it was built; the FEMA regulations made it so

that "the main floors [in the proposed hotel] will be above the

floor elevations[,]" and "[a]ll the mechanicals[7] will be up above

the floor elevation[,] . . . pushing up everything[,]" and that

the height variance would create a better visual impact on the

area and the property.   Further, as case law has recognized, the

MLUL encourages municipalities to guide the development of the



7
  It appears that the term "mechanicals," as used within the
context of this record, refers to heating, air conditioning, and
electrical equipment needed to service the building as a whole.

                                15                          A-3839-16T1
land to minimize threats from fire, flood, and other natural

disasters and promote desirable visual environment.                      Ten Stary,

216   N.J.   at   31.      Murphy    opined     that   the    variance      could    be

accomplished without substantial detriment and that the benefits

outweigh any detriment.

      The    Planning    Board    was    persuaded     by    this   testimony       and

concluded that SHH established undue hardship to justify a three-

foot deviation from the zone's forty-foot height limitation and

other   specified       deviations      from   the   code.    The   Board    further

concluded that SHH satisfied the negative criteria for a (c)(1)

variance     because     the    deviations     will    not    cause   substantial

detriment.        The trial court deferred to these well-supported

findings, and so do we.

      Unfortunately, however, the Planning Board made no findings

in its resolution addressing whether SSH fulfilled the criteria

for a subsection (c) variance as to the distinct separate provision

within Ordinance § 348-10.26(E)(8) restricting buildings in the

zone to three floors.          Logically, the floor restriction addresses

policy concerns that go beyond the mere total height of a building.

Adding a fourth floor to a hotel will surely create more usable

space for guest rooms, and, in turn, proportionately create more

traffic, parking needs, noise, demands on services, and other land

use impacts.       Presumably the governing body of the Township had

                                         16                                  A-3839-16T1
such concerns in mind when it included the three-story floor

restriction in the ordinance, prefaced by the phrase, "in any

event, . . ." after expressing the forty-foot height limitation.

     The floor restriction is clearly an independent requirement

of the ordinance that must be observed, in addition to its maximum

height requirement.   To be sure, height and floor restrictions are

related to one another, as we are mindful that general building

code restrictions dictate minimum ceiling heights for occupied

floors.   But there is sufficient variation in how far a developer

may choose to exceed such per-floor ceiling minimums, so as to

make the ordinance's limit on the number of floors a meaningful

separate requirement.

     The present record is bereft of any testimony or other

evidence that specifically addresses under subsection (c)(1) why

the additional fourth floor of the proposed hotel is needed to

avoid an undue hardship and why such a deviation comports with the

applicable negative criteria under the MLUL.   At most, there is a

passing reference to the "visibility" of the hotel from the

surrounding area, but that is a characteristic more relevant to

height rather than to the number of floors.       Conceivably, the

hotel could be forty-three feet high and contain only three floors

having slightly higher ceilings.



                                17                          A-3839-16T1
     The key point is this discrete floor issue was not addressed

in the record, nor in the Planning Board's resolution.              Because

of that material omission, the issue must be remanded to the

Planning Board for its consideration at a new hearing, with

appropriate public notice.         At such a hearing, SHH may seek

variance relief under subsection (c)(1) of the MLUL or, if more

appropriate, subsection (c)(2).8

     Aside   from   the   floor   issue,   we   are   unpersuaded   by   the

remaining arguments presented on appeal, as none of them deserve

comment in light of our limited scope of review.                R. 2:11-

3(e)(1)(E). We therefore affirm on all of the other issues raised,

substantially for the sound reasons expressed in the trial court's

written opinion.

     The matter accordingly is remanded to the Planning Board for

rehearing.    At such a hearing, and in any ensuing litigation,

plaintiffs shall be precluded by principles of res judicata from

raising any new issues or relitigating matters we have resolved


8
  In contrast to subsection (c)(1), subsection (c)(2) authorizes
variances where "in an application or appeal relating to a specific
piece of property [it is shown that] the purposes of this act . . .
would be advanced by a deviation from the zoning ordinance
requirements and the benefits of the deviation would substantially
outweigh any detriment, [the Board may] grant a variance to allow
departure from regulations pursuant to article 8 of this act
. . . ." N.J.S.A. 40:55D-70(c)(2); see also Lang, 160 N.J. at 55-
57; Green Meadows at Montville, LLC v. Planning Bd. of the Twp.
of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000).

                                   18                               A-3839-16T1
on this appeal.   That said, nothing forecloses SHH from revising

its project plans for renewed consideration by the Board.       Any

final decision of the Board on remand may be reviewed in a timely

action before the trial court.

     Affirmed in part, and remanded in part.    We do not retain

jurisdiction and do not specify any date for the completion of the

remand.




                                 19                        A-3839-16T1
