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Nunziato v. Planning Board of Borough of Edgewater

Decided: May 19, 1988.

WILLIAM NUNZIATO, FILOMENA KELLER A/K/A PHYLLIS KELLER, AND EDWARD ACCIARDI, PLAINTIFFS-APPELLANTS,
v.
PLANNING BOARD OF THE BOROUGH OF EDGEWATER, CONSTRUCTION OFFICIAL OF THE BOROUGH OF EDGEWATER, AND CONSULTINVEST INTERNATIONAL, INC., DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Bergen County.

Antell, Deighan and Landau. The opinion of the court was delivered by Antell, P.J.A.D.

Antell

In this action in lieu of prerogative writs plaintiffs appeal from a final judgment of the Law Division dated June 30, 1987 validating the action of the Edgewater Planning Board in granting site plan approval to defendant Consultinvest International, Inc. (hereinafter "applicant") for the construction of a high rise condominium apartment building. Approval, granted by resolution dated September 23, 1986, includes variances from the borough's set-back, lot coverage and parking stall requirements. It authorizes construction of a 24-story building consisting of 406 dwelling units on 3.6 acres of land adjoining Gorge Road in Edgewater and .3 acres in the neighboring municipality of Cliffside Park.

On this appeal plaintiffs assert that they were denied an opportunity to be heard before the Planning Board, that in addition to the variances granted the project also required a density variance which was beyond the authority of the Planning Board to grant, that a height variance was also required, that sufficient reasons were not shown for the grant of the front yard and lot coverage variances, that the variances granted significantly impaired the intent and purpose of the zone plan and zoning ordinance and that the resolution was invalid because it was prepared by the Board's attorney and not sufficiently reviewed by members of the Planning Board.

From our careful examination of the record we are satisfied that plaintiffs and their attorneys were given every reasonable opportunity to be heard at the hearings before the Planning Board. We further conclude that no density variance was required. Plaintiffs' contention to the contrary is based on area calculations which make no allowance for the .3 acres of the tract located in Cliffside Park. A somewhat analogous

situation was presented in Ciocon v. Franklin Lakes Plan. Bd., 223 N.J. Super. 199 (App.Div.1988), where we said the following:

We hold that under the facts and circumstances presented, where a boundary line transects a property located within two municipalities, the rear-yard set-back requirements of one municipality refer to the distance that the building is located from the rear-lot line located in the adjoining municipality rather than from the municipal boundary line. [ Id. at 208].

There is no reason why the principle there applied to interpret a set-back requirement should not also apply to a requirement limiting lot coverage.

The height limitation of the ordinance is not exceeded by the proposed structure. The ordinance limits the building to a height of 250 feet above "ground floor level." The term "ground level," from which plaintiffs say the measurement should be made, is not used in the ordinance. The lot is steeply sloped with a difference of approximately 50 feet between its high and low points, and the building's height should be measured from its "ground floor level." The ordinance was properly interpreted by the Planning Board.

Affirmative reasons for granting the set-back variances are found in what the Planning Board termed "the unique topographical conditions of the proposed site as well as the testimony submitted concerning the affect [sic] of shadows view blockage of neighboring properties and aesthetic considerations. . . ." Also supported by the evidence is the Planning Board's finding that the variances in this area zoned for high rise construction would not impair the intent and the purpose of the zone plan and zoning ordinance.

Plaintiffs' contention that the Planning Board's resolution was lacking in factually supported findings is lacking in merit. R. 2:11-3(e)(1)(E). Were it not for the issue to which we now turn, the Law Division's judgment would be affirmed.

During the hearing of July 15, 1986 the Chairman of the Planning Board made the following statement to ...


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