Frank Colandrea, owner of Viamare LLC will finally get to establish a pizzeria and Chinese restaurant at 131 N. Gaston Avenue. Thus says the Appellate Division of the New Jersey Superior Court in a decision issued today, July 5, 2012.
According to the opinion, Viamare applied to the Zoning Board in 2005 to rehabilitate a dilapidated motor vehicle service station into a "commercial/retail building." That application, after five public hearings, was approved on August 16, 2006. In late 2008 or early 2009, Viamare went back to the Borough for permission to put a pizzeria and Chinese take-out restaurant in the rehabilitated building but was denied by Zoning Official Frank Vuoso who held that a parking space variance was required.
Viamare applied for the variance, and after three hearings, the Zoning Board denied the application. Rather than focusing on the parking space issue, the Board looked at the nature of the proposed restaurant uses. The Board held that at the time of Viamare's initial application, it didn't contemplate restaurants being in the building. Rather, it thought that Viamare was going to install non food service related tenants in the building. In its memorializing resolution, the Board stated that "[a]s restaurant uses were not proposed, the Board did not address the impact a restaurant or restaurants would have on the surrounding neighborhood."
Viamare sued, as did Kun Wen Chun, who sought to establish the Chinese take-out restaurant. In July 2011, Superior Court Judge Edward M. Coleman upheld the Board's denial, ruling that "[a]s restaurant uses were not proposed, the Board did not address the impact a restaurant or restaurants would have on the surrounding neighborhood." Coleman, in denying Viamare's application, added that "[t]here is a good chance the Board [of Adjustment] would have removed one of the single family homes from the adjacent lot. The Plaintiff is bound to [its] representations that the Property would be used as retail."
In reviewing the matter, the Appellate Division characterized the Board's treatment of the application as "misguided" and held that the Board "misapplied the law." The appeals court held that the Board "knew (or should have known) that restaurants were permitted uses in the B-4 zoning district" and referred to the transcript of an October 19, 2005 hearing where Somerville Zoning Officer Vuoso testified that "a restaurant" was one of the contemplated uses of the property.
The Appellate Division panel of judges opined that the Board's actions "smacks of a de facto rezoning." They further held that "we have no hesitation in concluding that nothing appears that would warrant the de facto amendment of Somerville's zoning ordinance vis-à-vis Viamare's property. The Board of Adjustment's validation of Vuoso's denial of the permit was erroneous."