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Nigito v. Borough of Closter

Decided: June 2, 1976.

PAUL NIGITO AND WILLIAM KOESTNER, PLAINTIFFS-RESPONDENTS,
v.
BOROUGH OF CLOSTER, DEFENDANT-APPELLANT, AND THE BOARD OF ADJUSTMENT OF THE BOROUGH OF CLOSTER, DEFENDANT



Matthews, Lora and Morgan.

Per Curiam

The trial court reversed defendant-municipality's denial of a special use variance to construct 184 garden apartment units*fn1 for those families possessing moderate income capabilities, and the municipality appeals. The board of adjustment's recommendation that the variance be granted was rejected by the governing body on grounds, among others, that special reasons therefor had not been shown, that the population influx attendant upon the proposed development would create traffic congestion in the surrounding areas, that local services would be overtaxed, that the subject parcel could be utilized in accordance with the current zoning ordinance, and that the proposed use would substantially impair the intent and purpose of the zoning plan.

Plaintiffs, developers, own 14.7 acres of land in Closter located in the "A" residential zone reserved, with minor exceptions, for single-family residential construction. Geographically

the land is situated in the southwesterly corner of the borough, bounded by Durie Avenue, Schraalenburgh Road and the tracks of the operating Penn Central Railroad West Shore Division right-of-way and is immediately adjacent on two sides to the Borough of Haworth.*fn2 The property is rectangular in shape, having a frontage of 920 feet on Schraalenburgh Road and 720 feet along Durie Avenue with an average depth of 640 feet, the rear property line being the railroad's right-of-way. The parcel, approximately five feet below the grade of Schraalenburgh Road, is wooded, with some low and swampy portions requiring extensive fill. Public water, sanitary sewers and utilities are presently available to service the land.

The Borough of Closter is a relatively small municipality occupying approximately 3.20 square miles of land area, and is one of 15 towns designated by the Bergen County Planning Board as the "Northern Valley," a region bounded by the Hudson River on the east, the New York-Rockland County line on the north, and on the west and south by lines generally parallel to natural boundaries. The 1970 U.S. Bureau of Census Survey reported a population of 8,604 persons who live in approximately 2,500 housing units, all but 260 of which are single-family dwellings. The 260 (or 262) units are two-family houses permitted under the borough's zoning ordinance as conversions from single-family dwellings built prior to 1940, the effective date of the ordinance. Closter is primarily residential in character and is approximately 94% developed.

The borough's zoning ordinance, adopted in 1940 and amended in 1970 and 1972 to provide for an office area,

makes no provision for multi-family construction.*fn3 Plaintiffs' challenge to the constitutional and statutory validity of the ordinance was, however, declared moot by the trial judge when he granted plaintiffs their requested section (d) variance; no ruling was therefore deemed necessary with respect to their challenge, and no cross-appeal has been taken from that action.

The trial judge, rejecting the borough's conclusions to the contrary, found a need for moderate-income housing in the Northern Valley area as a whole, and in the borough in particular, and in that need and the suitability of plaintiffs' land for moderate-income apartment construction found the special reasons necessary to justify the granting of a section (d) variance. The subject parcel was deemed to be of only marginal utility for single-family dwellings thereon, the judge noting in support of that conclusion that it had remained undeveloped since the adoption of the ordinance in 1940, that it abutted the tracks of a functioning railroad, and that it sloped to a degree making difficult normal residential development. Evidence adduced by the borough suggesting a ready market for single-family dwellings on the subject parcel was either rejected or not considered. Because of some discordant uses in the immediate area, the trial judge concluded that the proposed garden apartment complex would not be out of keeping with the character of the immediate area, and accordingly, that the

parcel was particularly suited to garden apartment use. No apparent consideration was given to the borough's conclusion that the requested variance failed to comply with the negative criteria set forth in N.J.S.A. 40:55-39(d), necessary prerequisites to a variance pursuant to that provision.

Although the trial judge noted the general inadequacy of the evidence specifically demonstrating a housing need for moderate-income families in this area of the Northern Valley, or in the Northern Valley as a whole, and expressly avoided taking judicial notice thereof, support for his felt conclusion that the need existed was found in the legislative declarations of a housing shortage made part of the several rent-levelling ordinances of neighboring communities, in other legislative enactments (N.J.S.A. 55:14J-2), and in statements in court opinions of recent vintage. See, e.g., Inganamort v. Fort Lee , 62 N.J. 521 (1973). We question the sufficiency of such indications of a housing crisis (as distinguished from evidence of housing needs for a particular income group in a particular geographical area) to rebut the presumed validity of the borough's action in rejecting the variance based, in part, upon an express finding that whatever need there ...


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