On appeal from the Superior Court, Law Division, Hudson County.
King, Brody and Ashbey. The opinion of the court was delivered by Ashbey, J.A.D.
This land-use appeal concerns the site-plan review jurisdiction of the planning board over an application for a height variance to build highrise apartments. It was calendared before us at the same time as Commercial Realty v. First Atlantic Properties (# A-4081-87T), 235 N.J. Super. 577 (App.Div.1989), in which we outlined applicable standards for determining planning board site plan jurisdiction over a height variance for a nonresidential building. The issues are similar. In Commercial Realty, 235 N.J. Super. at 582, we ruled that the planning board had jurisdiction because the municipal legislative scheme did not mandate otherwise. Applying the same reasoning to this case, we are satisfied that this municipal zoning ordinance did dictate otherwise, and that therefore the planning board did not have jurisdiction. We accordingly affirm the Law Division which so held, substantially for the reasons expressed in Judge Wefing's March 24, 1988 written opinion.
This matter has a long history. Developer Roc Harbour Corp. (Roc Harbour) appeals from a 1987 summary judgment in favor of prerogative writ plaintiff North Bergen Action Group (NBAG) which challenged the action of defendant North Bergen Planning Board (Board). The Board gave Roc Harbour site plan approval and permission to build three 177.9 feet high buildings in a zone where the maximum permitted height was either 40 feet or 75 feet (depending upon whether a 1982 ordinance or a 1985 ordinance was considered applicable).*fn1 The Board's action was followed by two complaints in lieu of prerogative
writs, one by plaintiff Joseph Parisi (plaintiff in an earlier suit) and one by NBAG. After consolidating the two actions, Judge Wefing granted the summary judgment under appeal.
The Roc Harbour 1987 application was not the first to be heard by the Board. The planning board had voted approval of a similar variance and site plan on June 15, 1982. See Parisi v. North Bergen Mun. Port Authority, 206 N.J. Super. 499, 502 (App.Div.1985). The Law Division overturned that action, ruling that jurisdiction over the application was vested in the North Bergen Municipal Port Authority, which then approved Roc Harbour's preliminary site plan including height variances. Id. at 505. We reversed and our reversal was affirmed by the Supreme Court which held that the Municipal Port Authority did not have jurisdiction over the application. Parisi v. North Bergen Mun. Port Authority, 105 N.J. 25 (1987).
The following facts underlying Roc Harbour's development are not disputed. Roc Harbour is the owner of waterfront property known as Block 438A, Lots 2.2, 2.4D and 2.4D-2 in the Township of North Bergen. It sought to construct a residential condominium development.*fn2 According to its site plan, the development consists of 21.5 acres designated as 14.5 acres of upland and 7.0 acres over which water flowed. The 1987 application sought permission to construct 128 low-rise residential units in 31 separate buildings, 551 high-rise units consisting of the three towers of 19 stories each (including a three story parking garage) and a 210-slip marina.*fn3
Although Roc Harbour sought a height variance, and if necessary, a lot coverage variance, the only issue on appeal is whether the height variance was properly within the Board's jurisdiction under the Municipal Land Use Law (MLUL) and the applicable ordinance.*fn4 The parties appear to have agreed before the Board that the ordinance to be applied was passed in 1982, based on their conclusion that the Supreme Court had vacated certain parts of the 1985 ordinance. Judge Wefing's March 24, 1988 opinion described the relevant ordinance and its relationship to the variance requested as follows:
According to the representations of counsel at oral argument, the  zoning ordinance of North Bergen upon which the Board relied in granting the variances contained a general town-wide height restriction of forty feet. . . . the parcel in question was zoned . . . for generalized "multi-family" use and the North Bergen zoning ordinance contained neither floor area ratio requirements nor density provisions. N.J.S.A. 40:55D-4. . . . These towers, if built, will be nearly 180 feet high and almost four times higher than anything permitted in the township at the time.
Judge Wefing held that the Board lacked jurisdiction to grant a height variance of the magnitude proposed because the height variance granted was so large as to represent a change in the use of the property, thereby requiring a use variance pursuant to N.J.S.A. 40:55D-70d, which could only be granted by a Zoning Board of Adjustment. Acting on the assumption that a density regulation did not apply, the judge reasoned that a 19-story apartment building was not a permitted "multi-family" use where the only permitted principal structure for the permitted use was a building which could not exceed 40 feet in height. She also ...