Three years of dueling legal motions and hundreds – if not thousands – of pages of briefs and exhibits later, the question of whether a restaurant and bar can open on a rooftop along the Seaside Heights boardwalk will return to the planning board, albeit under unique circumstances that have changed since the idea was first proposed.
The planning board in 2020 denied an application by Fresh Cut Fries LLC to build a restaurant and bar with a rooftop section at 1219 Boardwalk, next door to what has become known as the “Jersey Shore” house from its portrayal on the MTV series bearing the same name. But a zoning ordinance passed in early March of that year placed restrictions on new dining establishments on the northern portion of the Seaside Heights boardwalk, effectively outlawing nightclubs or establishments that could be converted into one after dark. Because the application had been made shortly before the ordinance was passed, however, the board applied the previously-worded zoning code to its decision. Still, the existing restrictions prevented the new establishment from gaining approval.
Fresh Cut Fries, owned by Marc Pollaro, sued within weeks of the board’s denial of the application pitching his restaurant to the board. His attorney, Stephen P. Sinisi, argued that because Seaside Heights had not re-examined its master plan in about 15 years, all of its zoning ordinances could no longer be considered reasonable. Since the litigation was filed, that re-examination has been completed.
Borough Administrator Christopher Vaz, who sits on the planning board, said the property developers “couldn’t establish that the restaurant use was the primary use,” which was required under the ordinance. In order to meet approval, the applicant was required to meet specific positive and negative criteria baked into the state’s Municipal Land Use Law. In this case, variances were sought for front yard setback to Kearney Avenue (zero where 10-feet is required) and parking spaces (zero where 105 are required). A planner hired by Pollaro, however, testified that her client would comply with the zoning ordinances, including even the new code which restricts nightclub uses on the more residential-oriented north end of the board.
“She opined that the board, by imposing reasonable conditions, could mitigate perceived impacts on the pubic good such as limiting live acts or live music at the venue,” the suit stated.
Testimony at the board meeting continued, with examinations over parking availability, noise and other issues related to a bar and rooftop restaurant opening at the location. Representatives for the applicant testified that the parking issues affected every business along the entirety of the boardwalk.
An answer from board attorney Stephen A. Zabarsky argued that the plaintiff failed to state a cause of action, and the board’s decision was not based on arbitrary or capricious reasoning.
Further, years later, another wrinkle in the case emerged when it was revealed that Pollaro had sold the property in Jan. 2023 to Danny Merk, owner of the Shore Store retail business located next door, for $1,479,000. This led to a motion requesting the case be dismissed since the applicant pitching the restaurant no longer owned the business. In turn, a hand-written lease was submitted to the court, ostensibly serving as proof that the restaurant and bar proposal was still in play, despite questions as to whether the “lease” constituted a legal document, or that the original applicant had agreed to rent the property from the new owner.
Ultimately, Superior Court Judge Valter Must, after three years of dueling, back-and-forth motions remanded the case back to the Seaside Heights planning board, ordering the board to come to a decision on two questions.
First, the board was ordered to consider whether it had jurisdiction to continue the case since the property was sold and to determine the validity of the lease agreement, which was dated Jan. 13, 2023. Second, Must ordered the board to conduct a hearing to address whether the development regulations in Seaside Heights, at the time of the hearing, were “unreasonable” since the board had not re-examined its master plan within 10 years as required by state law. The board would also determine whether to apply the master plan adopted in June 2022 to the application.
While the board will render a decision on the two issues in controversy, Must retains ultimate jurisdiction to hear additional testimony in court and render his own decision on the case following the outcome of the planning board hearing.
At a workshop meeting of the planning board earlier this week, Zabarsky said it appeared the parties would be ready to hold the hearing ordered by Must at a meeting scheduled for June 26, 2023, though it was subject to change pending availability of planning professionals.