On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Michels, O'Brien and MacKenzie, JJ. The opinion of the court was delivered by O'Brien, J.A.D.
In this zoning case, plaintiff objectors appeal from a judgment of the Law Division affirming a decision by defendant Zoning Board of Adjustment of the City of Hackensack (Board), granting certain variances. We reverse.
Defendant Louis Scott Holding Co. (Scott) owns a lot in the City of Hackensack with a frontage of 75 feet and a depth of 150 feet. The lot is located in the R-3B district on the zoning map. The permitted uses in this district are one-family, two-family and multi-family dwellings. However, for multi-family dwellings (over two stories) there is a minimum lot size requirement of 20,000 square feet, a frontage requirement of 100 feet, a side-yard requirement of 15 feet, a required number of off-street parking spaces, and a minimum lot area per dwelling unit of 725 square feet.
An application was filed by Louis Cinque (applicant) to erect a five-story building on the property. It was represented that the first floor would be used for parking, the second, third and fourth floors would each contain four condominium units (units) and the fifth floor would contain three units or a total of 15 dwelling units. The building inspector denied the application since it required four variances from the requirements of the zoning ordinance: (1) the lot contained only 11,250 square feet instead of the required 20,000 square feet; (2) the lot has a frontage of 75 feet instead of the required 100 feet; (3) the left side yard proposed would be 10 feet instead of the required 15 feet, and (4) 24 off-street parking spaces would be provided instead of the required 25.
At an adjourned hearing on September 18, 1985, Joseph Cinque (also referred to as applicant) presented the application. He described his application as follows:
I would like to have permission to erect a five-story building -- actually, it's a four-story building with parking underneath the building. This is for condominiums, 16 units having a total square footage of about 700 square feet for each unit.
Several residents appeared in opposition. The Board granted the requested four variances by a vote of four to three. Notwithstanding that the plans submitted with the initial application indicated that there would be a total of 15 units, the resolution of the Board states that "the applicant proposes 16 one-bedroom, 700 square foot condominium units."*fn1
Plaintiff objectors filed a complaint in lieu of prerogative writ against Scott, Joseph Cinque, Louis Cinque, the Board, and the Mayor and Council of the City of Hackensack.*fn2 After a hearing, the trial judge affirmed the decision of the Board by order of November 17, 1986, from which this appeal is taken.
Appellants contend that the applicant did not prove undue hardship, nor did the applicant satisfy the negative criteria. In addition, although not alleged in their complaint but argued before the Law Division, appellant points out that the resolution of the Board of Adjustment actually granted a variance from the required 725 square feet of lot area per dwelling unit, although no application was made for that variance. In response to this contention before the Law Division, the Board's attorney explained the unique system used in the City of Hackensack in handling planning and zoning board applications. He explained that the applications are preliminarily reviewed by "city hall and the administration." He said:
They, the city hall, not the zoning board members or the zoning board attorney, establish what zoning board variances shall be requested based on what deficiencies they review in the site plan, the preliminary site plan.
He explained that this occurs at an unofficial review meeting*fn3 in which the applicant is told which variances he needs when he makes his application. The board of adjustment then votes on those variances. He then explained:
It [the board of adjustment] does not address the issue of site plan approval and that's where the City of Hackensack differs ...