June 25, 2007
LARRY PRICE, PLAINTIFF-APPELLANT,
1514-1516 MANHATTAN AVENUE LLC, AND UNION CITY PLANNING BOARD, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, L-4221-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2007
Before Judges Payne and Graves.
Plaintiff, Larry Price, appeals from the dismissal of his prerogative writ action against the Planning Board of the City of Union City and property developer, 1514-1516 Manhattan Ave., LLC, in which Price challenged the Planning Board's approval of the developer's application to erect a twenty-story, high-rise apartment building containing twenty-eight units on the Palisades in Union City. The core of Price's appeal, which is limited in nature, lies in the Planning Board's alleged failure to properly document the evident fact that the rear half of the property was unbuildable because it consisted of a "cliff face," and the trial court's acceptance of the Planning Board's implicit conclusion that a cliff face existed.
The property in question consists of 25,377 square feet (0.58 acres) of land located in a residential-multi-family (RMF) zone within Union City's Steep Slope Overlay District. It is approximately 75 feet wide and 230 feet in depth. The lowest point of the property lies at the border between Union City and Weehawken at an elevation of 45 feet. The property then rises sharply within its first 130 feet to an elevation of 204.5 feet. Thereafter, a basically flat 100-foot portion (the slope is 4.71%) consisting of 11,096.79 square feet (0.25 acres) exists, abutting Manhattan Avenue. The site plan for the property demarks the boundary between the level and steeply sloped portions of the property, in accordance with uncontested contour lines and elevations, by what the developer has called the "limit of disturbance line." All of the development is proposed to occur in the level portion of the property, northwest of the disturbance line. The permitted density of development of 28.02 units has been calculated by use of a "steep slope density calculation," set forth in Union City's zoning ordinance, and that calculation has been set forth on the site plan.
Union City's zoning ordinance permits the construction of multi-family residential apartment units in the R-MF zone. The ordinance further permits the construction of high-rise apartment buildings of no more than 22 stories if, among other things, the minimum site size is at lease 20,000 square feet, the number of dwelling units does not exceed 110, the floor area does not exceed 3:1, and the maximum percentage of lot coverage does not exceed 55 percent. Rev. Ordinance § 18-5.1d, Note 13, at 1808 (1975).*fn1
The ordinance's steep slope overlay district regulations are of particular relevance to this litigation. See Rev. Ordinance § 18-5.4 at 1814-17 (Supp. 1/89). A statement of purpose, preceding the detailed provisions of the regulations, states:
It is the purpose of the Section to establish special land use development controls for portions of the City of Union City in the vicinity of the Palisades cliffs in order to:
1. preserve and enhance the Palisades as a prime natural resource of importance to residents of Union City, Hudson County and the State of New Jersey;
2. protect persons and property from potentially hazardous conditions due to grades, slopes and geology in the vicinity of the Palisades cliffs;
3. preserve the views from the top of the cliffs as well [as] views of the cliffs themselves; [and]
4. encourage innovative design in development in the vicinity of the cliffs and the employment of appropriate natural resource management practices. [Id. § 18-5.4a at 1814.]
The regulations further define "developable area" as "the area of a lot exclusive of any portion which contains cliff face,"*fn2 id. § 18-5.4b4 at 1814, and they define "cliff face" as "a sheer, nearly vertical slope of exposed bedrock." Id. § 18-5.4b2 at 1814. Allowable unit densities in the steep slope overlay district are calculated in accordance with a formula appearing in the ordinance at section 18-5.4e, which uses the "developable area" as part of the calculation. Id. at 1815. In calculating density, the developer claimed as the developable area the flat portion of the property located between the limit of disturbance line and Manhattan Avenue.
Challenger Price did not appear at the hearing at which approval of the plan for this site was discussed, and he did not otherwise oppose that approval at a municipal level.*fn3 In his prerogative writ action, he contended that the exclusion of the steeply sloping part of the property from the density calculation was arbitrary and violated ordinance § 18-5.4e2, which states:
For purposes of calculating the maximum number of dwelling units permitted on a site in the Steep Slope Overlay District, the Developable Area shall include the area of the site less any areas identified as cliff face.
Price claimed that because there was no specific designation of the steep slope portions of the property in question as "cliff face," that portion of the property could not be legally excluded from the steep slope density calculation, and thus that there was no competent evidence to support the approval of the developer's application. He raises this issue again on appeal, while also arguing that the trial judge's determination to the contrary was arbitrary and capricious.
We reject Price's argument and affirm, finding the evidence of the existence of a precipitous slope presented by the site plan, together with the verbal acknowledgement by all participants at the hearing that the project was located at a crest of the Palisades, to have created a sufficient foundation for the Planning Board's conclusion that the developer's density calculation was correctly derived and for the similar conclusion of the trial judge. Baghdikian v. Bd. of Adj., Borough of Ramsey, 247 N.J. Super. 45, 49-50 (App. Div. 1991); see also Kramer v. Bd. of Adj., Seagirt, 45 N.J. 268, 296 (1965) (establishing a presumption of validity, overcome only by evidence of arbitrary, capricious and unreasonable action).
The regulations at issue are termed "steep slope" regulations. Their stated intent is to preserve the Palisades and to guard them against the encroachment of overhanging or abutting structures. This project was atop a portion of the Palisades, within the steep slope overlay district. That the land fell off abruptly from its otherwise level course at the developer's limit of disturbance line cannot be contested. Nor can it be contested that the steeply sloped portion of the property constituted a portion of the Palisades, and that it was not only unbuildable as a practical matter, but also protected from encroachment. Whether the site plan contained a specific designation of the "top of the cliff," the "cliff face," the "side slope," and the "base of the slope," as Price contends was required, and whether the members of the Planning Board -- all familiar with the area -- explicitly found those features to exist is, in the circumstances of this case, immaterial. We regard a remand to establish the self-evident features that Price finds lacking to constitute a misuse of the resources of the court and Union City's quasi-judicial bodies.
This is not a case in which the Board acted upon undisclosed facts, thereby denying the residents of Union City their right to a hearing conducted in accordance with principles of due process. Baghdikian, supra, 247 N.J. Super. at 51. Our review of the hearing transcript satisfies us that the property's location and characteristics were fully disclosed and that the significance of these facts was understood.
We decline to address Price's argument that the Planning Board lacked the power to construe its steep slope ordinance as applicable to the property in question, finding that argument to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We also decline to address the argument that the resolution adopted by the Planning Board to memorialize its site plan approval lacked sufficient findings of fact and conclusions of law, because that argument was not raised before the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
In sum, we discern sufficient evidence in the record to support the Planning Board's application of Union City's steep slope regulations to the property at issue in the manner requested by the developer, Kramer, supra, 45 N.J. at 284, and, like the trial court, find no evidence of arbitrary, capricious or unreasonable action on its part. Id. at 296; see also Burbridge v. Mineville Twp., 117 N.J. 376, 385 (1990); New York SMSA v. Bd. of Adj. of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004)(discussing standards applicable to decisions of boards of adjustment).