On appeal from Superior Court, Law Division, Hudson County.
Furman, Petrella and Ashbey. Petrella, J.A.D. (concurring).
These consolidated appeals involve a review of the action of the "North Bergen Municipal Port Authority" (Authority) in authorizing construction of high-rise towers in the "Port District" of North Bergen which did not comply with the zoning ordinances of the Township of North Bergen. The appeals were filed by property owners and taxpayers in North Bergen. We reverse.
Some background discussion is necessary because of the interrelationship between what happened before the North Bergen Planning Board and the Authority. ROC Harbor Corporation (ROC Harbor)*fn1 had originally filed a site plan and variance
application with the planning board as contract purchaser with respect to several lots consisting of approximately 21.5 acres between the Hudson River and River Road in North Bergen (some of that land is apparently under water). The property is adjacent to property owned by appellants Joseph J. Parisi and J. Fletcher Creamer, Sr. Prior to applying to the Authority, ROC Harbor had filed a February 27, 1981 application with the Planning Board in which it sought site plan approval and a variance for construction of 679 condominium dwelling units, 559 of which would be in two high-rise towers (each 240 feet in height). ROC Harbor sought a variance from the 40 foot height limitation in North Bergen's zoning ordinance. Public hearings were held on the application on six separate days. The Planning Board ultimately adopted a June 15, 1982 resolution approving the site plan and granting the height variance.
Parisi and Creamer then challenged the Planning Board's determination in a prerogative writ action*fn2 filed in the Law Division on July 23, 1982 (the first suit). Summary judgment was subsequently sought on various grounds, including an allegation that the Authority had exclusive jurisdiction because the land was within the "port district" which had been created during the interim period by ordinance of North Bergen on December 17, 1981.
North Bergen is a municipality in Hudson County containing approximately 5.4 square miles and with an estimated population of approximately 47,000.*fn3 It was represented to us at oral
argument that approximately 1/3 of the land area of North Bergen is embraced within the "port district."
During the pendency of the prerogative writ action, and prior to the summary judgment motion being decided, ROC Harbor filed a September 7, 1982 application with the newly created Authority seeking substantially the same zoning variance from the height restrictions in North Bergen's zoning ordinance, as well as site plan approval, as had been sought from the Planning Board. The Authority conducted four days of hearings during which ROC Harbor amended its application to request approval of three towers, each over 175 feet in height and containing a total of 551 units, and 128 low-rise units. The project also encompassed about 10,000 square feet of commercial space designed primarily to service residents living in the project area. Additionally, ROC Harbor had presented an alternate site plan proposal (originally presented to the Planning Board) showing a development in accordance with the municipal zoning requirements.
On February 15, 1983 the Authority adopted a resolution approving the "site plan application and variance" sought by ROC Harbor, subject to 13 express conditions, including compliance with all recommendations of the Township Engineer; and approvals by the Hudson County Planning Commission, the New Jersey Department of Environmental Protection, and the United States Army Corp of Engineers. The Authority rejected the alternate site plan as somehow having an unexplained "negative affect [sic] upon the community and a negative affect [sic] upon the intent of the zoning ordinance." The resolution made certain findings, incorporated the Planning Board's findings, and recited the conclusion that as a result of the sub-surface conditions of the soil it is not economically feasible to
develop this land without the relief from the height restrictions of our ordinance."*fn4
The resolution indicated that the application that had been made to it was "for site plan approval and relief from the height restrictions of the zoning regulations; . . . ." The resolution recited in numerous places that it was granting a "variance " as well as site plan approval. In paragraph numbered 11 of that resolution the Authority said: "this variance will not substantially impair the intent of the zoning ordinance nor negatively affect the municipality." Paragraph 13 recited that "The granting of the variance will not adversely affect the rights of adjacent property owners or residents." The resolution went on in conclusory fashion to track the language of the Land Use Act as then in effect with respect to variances. See N.J.S.A. 40:55D-70 c and d.*fn5 We note here that aside from the question of whether hardship should have been taken into account on such a "variance" application, on its face the resolution is patently deficient to establish sufficient grounds for approval of the application. See Castroll v. Tp. of Franklin, 161 N.J. Super. 190, 192-193 (App.Div.1978). Conclusory statements tracking statutory language are not sufficient. See Harrington Glen Inc. v. Mun. Bd. of Adj., Borough of Leonia, 52 N.J. 22, 28 (1968); Commons v. Westwood Zoning Bd. of Adj., 81 N.J. 597, 609-610 (1980); Application of John Madin/Lordland Development International for Pinelands Development Approval, 201 N.J. Super. 105, 114 n. 4 (App.Div.1985).
Thereafter, the Law Division entered summary judgment in the first suit on February 28, 1983 in favor of Parisi and
Creamer vacating the planning board's action on the basis that the Authority now had exclusive jurisdiction over the application.
The judge said in his January 28, 1983 letter opinion that it was "readily apparent that the legislature in establishing a Municipal Port Authority has made this authority a separate entity from the municipality." He then concluded that it would be contrary to his perception of the legislative intent to allow the Authority and the Planning Board to share concurrent jurisdiction. No appeal was taken from that decision in the first suit by any party,*fn6 perhaps in part because Parisi and Creamer almost immediately filed a second complaint in lieu of prerogative writ on March 31, 1983, this time challenging the Authority's February 15, 1983 approval of ROC Harbor's application.
The new complaint (the second suit) was filed on March 31, 1983 and alleged that the Authority's action was arbitrary, capricious, unreasonable and illegal. It asserted that the variance was not properly granted under N.J.S.A. 40:55d-70 because there was no proof of "exceptional and undue hardship," and also challenged the power of the Authority to change North Bergen's zoning scheme. An amended complaint asserted a claim that the site plan approval was illegal because it had the effect of conveying Marine Road, a municipal right of way, which was a reserved paper street on the Township tax map, to ROC Harbor. Elizabeth Meyers filed a similar complaint on the same date. A third suit, not the subject of this appeal, was also filed by another individual. All of the actions were consolidated.
The trial judge issued two separate letter opinions, each dated December 6, 1983, in response to summary judgment motions. The judge concluded in the first of these opinions that res judicata barred the objectors. He also applied that doctrine against Meyers whom he considered in "privity" with the plaintiffs in the first action under the theory of "general and public interest" matters referred to in In re Petition of Gardiner, 67 N.J. Super. 435, 448 (App.Div.1961). The judge nonetheless re-examined his January 28, 1983 opinion and again concluded that the Authority was "not subject to the local zoning laws and is independent from the Planning Board." From that conclusion, and without further analysis, he inferred a much broader conclusion and said: "It therefore has complete and exclusive jurisdiction over the land situated within its boundaries." As a result of the first of those opinions he entered a December 19, 1983 order granting partial summary judgment "establishing exclusive jurisdiction in the . . . Authority with regard to applications for building plans or site planning approval in this matter."
In his second letter opinion of December 6, 1983, the judge upheld the relief granted by the Authority to ROC Harbor. He found that there was adequate credible evidence to support the Authority's approval of the application. In addressing the argument of the objectors that "hardship" had not been shown and that a variance was not warranted, the judge observed that the Authority was not operating under North Bergen's zoning ordinance, and hence hardship was not an issue.*fn7 A final judgment dated December 19, 1983 was entered resolving the matter in favor of the authority's action.
Parisi and Creamer appealed the order of December 19, 1983 as well as the judgment of even date. Meyers also appealed the order and the judgment. The appeals were consolidated. On May 24, 1984 we granted appellants' motion to supplement the record to include portions of the "Zoning Ordinance/Port District, North Bergen, N.J.," adopted in March 1984 (obviously subsequent to the Authority's February 15, 1983 approval of ROC Harbor's application)*fn8 and denied summary disposition. On July 20, 1984 we required appellants to supplement the record with the transcripts of the hearings before ...