On appeal from Superior Court of New Jersey, Law Division, Hudson County, HUD-L-4127-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued May 21, 2007
Before Judges Weissbard, Payne and Lihotz.
Plaintiff, Allen Kratz, appeals from a March 30, 2006 final judgment of the Law Division dismissing his complaint in lieu of prerogative writs. Plaintiff's complaint had challenged the decision of defendant, Zoning Board of Adjustment of the City of Hoboken (the Board), granting relief to defendant, Damiano Tattoli. We affirm.
On February 22, 2005, Tattoli filed an application with the Board for preliminary and final major subdivision approval, preliminary site plan approval, and variances relating to his proposed construction of a mixed-use building containing a bar and restaurant, business offices, and residences. Tattoli certified that on April 5, 2005, he had given written notice to all property owners within 200 feet of the property, utilizing the list given to him by the City. Notice of the scheduled April 19, 2005 hearing was also published in the Jersey Journal on April 7, 2005.
On April 19, 2005, the Board adjourned a meeting on the application until May 24, 2005, so that the City's Historic Commission could review the application and provide its comments to the Board. The Historic Commission provided its comments by letter dated May 16, 2005.
At the May 24, 2005 hearing, the Board accepted evidence, approved Tattoli's application, and granted all requested variance relief. On June 21, 2005, the Board adopted a resolution approving the application.
Tattoli applied to the Board for subdivision and site plan approval, and certain variances pursuant to N.J.S.A. 40:55D-70(c) and (d), in order to construct a mixed-use building at 36-42 Newark Street in Hoboken. The site was a vacant lot at the time of Tattoli's application. However, it formerly housed the famous Clam Broth House, which had been condemned and demolished.
Tattoli's proposal was to construct a seventy-six foot building that would house a restaurant and bar on the first two floors, consisting of 9130 square feet, and replacing the Clam Broth House, a sidewalk café, office space on the third and fourth floors consisting of 9570 square feet, and eight residential units on the top two floors. Separate elevators would service the office space and residential floors. Additionally, Tattoli proposed a basement consisting of 5615 square feet that would house the restaurant's kitchen, storage facilities, restrooms, and utilities. The Hoboken Health Department had no objection to the issuance of a variance for use of the basement for food preparation, subject to certain conditions.
The property has an area of 5266.5 square feet and is located in the eastern portion of the City, near the rail station. It is located in the CBD(H) district, a commercial business historic district in which the principal permitted uses are: commercial recreation; instructional use; office buildings; offices, including studios and clinics; hotels and motels; public buildings and uses, including governmental buildings, administrative offices, parks and plazas; residential buildings; restaurants and bars; and retail business or service. The buildings in the area range between one and twelve stories high.
In order to construct the proposed building, Tattoli required variances for: use of the cellar for food preparation, where only storage and installed building equipment was permitted; lot depth, where 100 feet was required and 50 feet was proposed; lot coverage, where 60 percent is permitted and 100 percent was proposed on the lower floors and 90 percent on the upper floors; rear yard setback, where 30 feet or 30 percent of lot depth is required and 0 was proposed; building height, where 50 feet is permitted and 76 feet was proposed; number of stories, where 5 stories are permitted and between 6 and 7 stories were proposed; number of residential units, where 8 are permitted and 16 were initially proposed; non-residential square floor area, where 15,800 square feet is permitted and 28,620 square feet was proposed; floor area ratio, where 3:1 was permitted, and 5.4:1 was proposed; and maximum permitted roof coverage by appurtenances, where 10 percent was permitted and 36.7 percent was proposed.
In support of his application, Tattoli presented the testimony and reports of an architect, James McNeight, and a planner, Kathryn Gregory. In terms of historic preservation, McNeight testified that, although the building was not on the National Register of Historic Places, Tattoli proposed a design that was consistent with the style of the original building. Moreover, the Clam Broth House, "an historic restaurant with a century of service to the city," would be reestablished, including restoration and reinstallation of "[t]he famous neon pointing finger" Clam Broth House sign.
When asked his professional opinion about the project and the requested variances, McNeight stated:
[I]n my opinion, given the fact that we have an L-shaped site that's 50 feet deep on one half and 100 on the other, gives the building a little bit of a problem as far as how do you handle occupying the site. As you can see from the site plan, we're buried in the center of the block. So basically we only have one façade that is able to be punctuated by windows. To the rear of the façade to some extent.
So I believe that the variances requested are generated pretty much by the location and the shape of the lot; and that in the flexible nature of these variances, they can be granted because of the positive aspects of what's generated out of the negative aspects.
Gregory opined that Tattoli's project was consistent with the neighborhood. There were a number of different types of buildings with different masses and heights in the area, including buildings between six and nine stories high. Accordingly, the proposed increase in density would not affect the character of the zoning district.
In terms of historic preservation and renovation, Gregory concluded that the Secretary of the Interior Standards for Historic Preservation, which the City's Historic Commission desired application of, were not binding. Rather, under § 196-27.2 of the Hoboken Ordinance, these standards were intended only to "guide" the Historic Commission's decision-making and recommendations concerning an historic site or property in an historic district.
Gregory concluded that Tattoli's project was consistent with Hoboken's standards for reconstruction, which were set forth at § 196-27.2(G), and which provided at (G)(1) that: "Reconstruction of a part or all of the property shall be undertaken only when such work is essential to reproduce a significant missing feature in an historic district or scene and when a contemporary solution is not acceptable." Gregory opined that the only significant feature on the old Clam Broth House that was presently missing from the historic district was the large sign that had been located on the building, which Tattoli intended to replace.
In addition, Hoboken Ordinance § 196-27.2(G)(2) provided that:
Reconstruction of all or part of an historic property shall be appropriate when the reconstruction is essential for understanding and interpreting the value of an historic district or when no other building, structure, object or landscape feature with the same associative value has survived and sufficient historical documentation exists to ensure an accurate reproduction of the original.
Gregory claimed that the original Clam Broth House building did not meet these criteria for reconstruction because it had not been on the National Register of Historic Places, nor had it been architecturally significant.
With respect to the requested bulk variances, Gregory stated that the requirement of a 30-foot rear yard setback was impossible to satisfy on the 50-foot side of the block, which is why there was an existing 0-foot condition. Additionally, Tattoli's proposed 100 percent lot coverage was consistent with what previously existed. Moreover, on the upper floors, only 90 percent lot coverage was proposed because the architect had narrowed the building to provide windows to the residential units. With respect to the variance for roof appurtenances, Gregory opined that there was no substantial detriment to the public good to allow space for the architectural element on the roof.
Gregory's testimony in connection with the positive and negative criteria was as follows:
With regard to the positive criteria and the negative criteria, I do think we float close to the municipal land use law. And most importantly, Purpose A, which talks about promotion of general welfare. When we talk about that, I think that we're proposing an aesthetically pleasing building that is replacing a building that was indeed condemned; and therefore, I do believe you also respond to the historic goals for the district.
And we also conform to the zoning ordinance under my interpretation. . . . Promotion of a desirable, business environment through creative development techniques, a good civic design, and arrangement. . . .
With regard to the historic architecture of the building and what the architect is trying to do reflective of the historic character of the district that's depicted in the 1920s, do I believe there's any substantial detriment to the public by advancing of the variances? Absolutely not.
On those other buildings in the vicinity that are greater in height than this one including in the historic district that are not even of an historic character. And they also, if you look at them, do not step back such as this building does. It tries to minimize the impact of the increase in height we're asking for. . . .
Gregory also asserted that Tattoli's project met many of the goals and objectives of the City's Master Plan. In this regard, she opined that the project would improve the appearance of Hoboken's streets, and that the proposal would maintain and promote an appropriate and urbane mix of land uses. Further, the proposal met the goal of requiring buildings to be oriented to the street and encouraging additional office space in an appropriate location. Finally, the proposal promoted the purposes of the historic district "to preserve and enhance the best elements of the subdistrict's traditional character of architectural and other controls" and "to ensure that . . . structures within the district will be in keeping with the character to be preserved and enhanced."
Paul Summerville, who testified on behalf of the City's Historic Commission, stated that the Commission recommended construction of a four-story building with a setback, as opposed to the seven-story building with no setback that Tattoli proposed. Summerville also argued that Tattoli should be using the Secretary of Interior Design Standards on Reconstruction to accurately duplicate the historic features that existed on the original building.
Further, in a letter dated May 16, 2005, the Historic Commission had stated "that they would like to have this building reconstructed, to have the same esthetic appearance as the original buildings." As such, if the Board approved Tattoli's application, Tattoli would be "expected to return to the Historic Preservation Commission for the approval of the façade of this building."
The Board ultimately approved the application. With respect to the requested (d) variances, in its Resolution, the Board stated that:
26. The Applicant has demonstrated, and the Zoning Board of Adjustment finds that the granting of the variances for maximum density and use of the cellar level for food preparation will not cause substantial detriment to the public good and will not substantially impair the intent and purpose of the zoning plan and zoning ordinance. The Board further finds that special reasons do exist for the relief requested by the Applicant; specifically that the proposed development will provide sufficient space in an appropriate location for residential, office and restaurant use, particularly because of the Property's proximity to the Hoboken rail station, and will preserve the character and historical integrity of the Property, in accordance with the City Master Plan, thus serving the public good.
27. As such, the benefits of the project substantially outweigh any possible detriment which might result from the deviations, and the granting of the variances for maximum density and use of the cellar level for food ...