Victoria Rose Opponents Lose Appeal in Superior Court

Oct 02, 2019
Photo by: Jack Reynolds

A group of Beach Haven residents opposed to the Victoria Rose development were denied in an attempt to overturn it recently in Ocean County Superior Court.

Early last year, partners Terry Moeller and Tom and Joan Bertussi announced plans to tear down the bank building on Bay Avenue and build a retail/residential complex. The complex would contain 20 residential units, each covering 1,200 square feet. Five apartments would be set aside for affordable housing.

The development would also include five yet-to-be-named retail businesses, covering less than 40,000 square feet. The current brick structure was built in 1963 as the headquarters for the old Beach Haven National Bank. Over the years, it became the home of several different financial institutions, with the most recent being Sovereign Bank.

Initially, the project’s opponents thought they had won, since the land use board rejected the application in August 2018. At that meeting, Mayor Nancy Taggart  Davis’ abstention resulted in a 4-4-1 deadlock; thus the application fell short of the necessary five votes for approval.

At that time, Davis said that while she thought Victoria Rose had “the potential to have a positive impact on Beach Haven,” she also said the project “has divided friends and neighbors” and there was a lot of “anger and animosity it has engendered amongst a small but vocal group of residents.”

“I love this town, I love my fellow residents, and I think we all are better off when we work together and not against one another,” the mayor said then. “It is with that in mind, and with great reluctance, that I have decided to withdraw my support from this project and abstain from the vote.”

But at the Oct. 22 meeting, Nicholas Talvacchia, an attorney for the developers, requested a re-vote. Davis then changed her vote because her abstention had been “mostly based (on) emotion.”

“I realized that legally, there was no way I could vote against it,” she said then. “The applicants made numerous concessions and changes, so it would not have been fair for me to not grant them approval.”

In their appeal, the plaintiffs asserted Victoria Rose “was not entitled to a second bite of the apple,” referring to the re-vote. But Judge Marlene Lynch Ford said the tie vote with one abstention that resulted in a denial of the approval was never memorialized and the board again could vote for consideration.

“In other words, the decision to reconsider the vote was not the product of an illicit purpose,” Ford ruled. “Therefore, it was within the discretion of the board, on its own motion, and before the vote was memorialized in a formal resolution, to exercise its discretion to have another vote on the application. The court finds this is within the quasi-judicial discretion of the board, and unless tainted by fraud, mistake or other illicit motive, is a valid exercise of the board’s discretion.”

Plaintiffs also argued the procedural reconsideration vote was “fatally tainted” by then-Councilman Donald Kakstis introducing the motion for reconsideration.

“Thus pursuant to these rules (Robert’s Rules of Order), only the four members who voted against the site plan approval in the original decision could introduce a procedural motion for reconsideration,” they asserted.

But Ford ruled that because the abstention resulted in a tie vote, any member regardless of their initial vote could have called for reconsideration.

“The court cannot find that the procedure followed by the board was the height of arbitrary and capriciousness’ maintained by the plaintiffs,” the judge said.

Christopher Norman, an attorney who represented the plaintiffs, could not be reached for comment.

Moeller said he hopes to have Victoria Rose open by Memorial Day weekend 2020.

— Eric Englund

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