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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...