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North Bergen Action Group v. North Bergen Township Planning Board

Decided: February 4, 1991.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 235 N.J. Super. 597 (1989).

For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the court was delivered by Stein, J.


[122 NJ Page 570] As in Commercial Realty and Resources Corp. v. First Atlantic Properties Co., 122 N.J. 546, 585 A.2d 928 (1991) (Commercial Realty), also decided today, the issue in these consolidated cases is whether a variance from height restrictions in a municipal zoning ordinance is cognizable under subsection

c of N.J.S.A. 40:55D-70, empowering the municipal Planning Board to grant the variance in the course of site-plan review. See N.J.S.A. 40:55D-60. The Law Division set aside the variance, observing that the magnitude of the height variance sought constituted "a fundamental qualitative change in the use permitted," and concluding that the variance was cognizable only under subsection d of N.J.S.A. 40:55D-70 and thus beyond the ancillary jurisdiction of the Planning Board. The Appellate Division affirmed, 235 N.J. Super. 597, 563 A.2d 878 (1989), noting that the proposed height variances contemplated "departures from the zoning ordinance of a truly drastic nature," id. at 603, 563 A.2d 878, and concluding that the municipal zoning scheme reflected an intention that variances of such magnitude be characterized as "principal structure" variances and committed to the exclusive jurisdiction of the board of adjustment. Id. at 599, 604, 563 A.2d 878. We granted certification, 118 N.J. 224, 570 A.2d 978 (1990). Based on our holding in Commercial Realty that variances from height restrictions are cognizable only under subsection c of N.J.S.A. 40:55D-70, 122 N.J. at 565, 585 A.2d at 938, we reverse the judgment of the Appellate Division and remand the matter to that court to determine the substantive validity of the variance.


The procedural history is set forth in the Appellate Division's opinion, 235 N.J. Super. at 599-603, 563 A.2d 878, and in this Court's prior opinion in Parisi v. North Bergen Mun. Port Auth., 105 N.J. 25, 28-31, 519 A.2d 327 (1987), involving an earlier aspect of this controversial application. We set forth only so much of that history as is necessary for an understanding of the context in which the issue before us arises.

Defendant Roc Harbor Corp. (Roc Harbor) seeks to develop a 21.5-acre parcel of waterfront property in North Bergen, approximately seven acres of which is underwater. Its most recent application to the North Bergen Planning Board for

site-plan approval proposed construction of 128 low-rise residential units in thirty-one separate buildings; three nineteen-story towers containing a total of 551 high-rise units, each tower including a three-story parking garage; and a 210-slip marina. The applicant also sought variances from the forty-foot height limitation in the zoning ordinance.*fn1

The North Bergen Planning Board had previously granted height variances and site-plan approval in 1982 with respect to a similar version of the same project. The Law Division had set aside that approval, determining that the North Bergen Municipal Port Authority (Port Authority) had jurisdiction over the application. Id. at 29, 519 A.2d 327. The Port Authority then approved the site plan and height variance, and the Law Division sustained that action. Id. at 29-30, 519 A.2d 327. The Appellate Division reversed in a reported opinion, 206 N.J. Super. 499, 511-12, 503 A.2d 318 (1985), concluding that the Port Authority lacked jurisdiction over the application. We affirmed and remanded the matter to the Planning Board, Parisi, supra, 105 N.J. at 40, 519 A.2d 327, without addressing whether height variances were cognizable by planning boards exercising ancillary jurisdiction over variances pursuant to N.J.S.A. 40:55D-70c.

In its latest presentation before the Planning Board, Roc Harbor's expert witnesses advanced two grounds in support of the height variance. First, Roc Harbor's architect testified that the substandard soil conditions on the site required the installation of pilings to support the proposed structures, and that despite cost projections based on soil borings, the actual depth of the pilings and their resultant cost was substantially greater

than had been anticipated. He testified that because of those higher costs, the project would not be economically feasible unless high-rise construction was permitted. He also testified that high-rise construction would increase the amount of open space on the site. The applicant's architect was uncertain whether developing the project with seven- or eight-story structures, rather than nineteen-story, would be economically feasible. A real-estate expert testified that the proposed development would not have "any adverse effect or impact * * * on the intent of the Zoning Ordinance," or on property values in the immediate neighborhood. Responding to an inquiry from the Board's attorney, Roc Harbor's counsel ...

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