                                NOT FOR PUBLICATION WITHOUT THE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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                                       2
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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                                        3
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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                                         4
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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                                          5
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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                                        6
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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