July 25, 2007
ALLEN KRATZ, PLAINTIFF-APPELLANT,
ZONING BOARD OF ADJUSTMENT OF THE CITY OF HOBOKEN, DAMIANO TATTOLI, AND TAX COLLECTOR OF THE CITY OF HOBOKEN, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 preparation pursuant to N.J.S.A. 40:55D-70(d) is appropriate.
In granting the requested (c) variances, the Board supported its decision by stating:
30. The Applicant has demonstrated, and the Board finds that the granting of the variance relief with respect to maximum lot coverage, maximum number of building stories, minimum rear yard, maximum roof coverage by appurtenances and minimum lot depth will have no negative impact on the property or the surrounding neighborhood. The proposed building will be a positive enhancement to the area, and the Board of Adjustment, in accordance with N.J.S.A. 40:55D-70(c)(2), finds that the benefits of the proposed improvements substantially outweigh any detriment.
31. As such, the Board of Adjustment finds that the within application meets the statutory requirements for variance approval, and that the granting of said variances is appropriate as the purposes of the Municipal Land Use Law ("MLUL") are advanced and by so doing, the benefits substantially outweigh any detriments from the deviations.
The Board also granted preliminary major subdivision and preliminary major site plan approval, with conditions, and found that if these conditions were met, the use would have "no substantial impact on parking, traffic, drainage, fencing, exterior lighting and paving, and there will be no substantial adverse impact on surrounding properties." Instead, the project would promote the purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and would not be adverse to sound planning.
On August 12, 2005, plaintiff, a property owner in Hoboken who opposed Tattoli's application, filed a complaint in lieu of prerogative writs challenging the Board's resolution. On February 27, 2006, Judge Antonin conducted a trial and issued an oral opinion rejecting plaintiff's arguments for reversal of the Board's action and affirming the Board's action as reflected in its resolution. As noted, a final judgment dismissing the complaint was filed on March 30, 2006.
On appeal, plaintiff argues that:
POINT I: THE TRIAL COURT ERRED IN AFFIRMING THE BOARD'S DECISION AND DISMISSING THE COMPLAINT BECAUSE TATTOLI FAILED TO PRESENT THE PROOFS NECESSARY TO MEET THE POSITIVE AND THE NEGATIVE CRITERIA UNDER N.J.S.A. 40:55D-70(d), AND THE BOARD COULD NOT FIND THAT THE POSITIVE AND NEGATIVE CRITERIA WERE MET BECAUSE THE EVIDENCE PRESENTED FAILED TO SUPPORT THE VARIANCES UNDER SECTION 70(d) SOUGHT BY TATTOLI.
POINT II: THE TRIAL COURT ERRED IN AFFIRMING THE BOARD'S DECISION AND DISMISSING THE COMPLAINT BECAUSE TATTOLI FAILED TO PRESENT THE PROOFS NECESSARY TO MEET THE POSITIVE AND THE NEGATIVE CRITERIA UNDER N.J.S.A. 40:55D-70(c), AND THE BOARD COULD NOT FIND THAT THE POSITIVE AND NEGATIVE CRITERIA WERE MET BECAUSE THE EVIDENCE PRESENTED FAILED TO SUPPORT THE VARIANCES UNDER SECTION 70(c) SOUGHT BY TATTOLI.
POINT III: THE TRIAL COURT ERRED IN AFFIRMING THE BOARD'S DECISION AND DISMISSING THE COMPLAINT BECAUSE TATTOLI FAILED TO PRESENT THE PROOFS NECESSARY, AND THE BOARD FAILED TO MAKE THE NECESSARY FINDINGS, TO SUPPORT THE GRANT OF SUBDIVISION AND SITE PLAN APPROVALS.
POINT IV: THE TRIAL COURT'S DECISION AFFIRMING THE BOARD'S CONDUCT AND DECISION MUST BE REVERSED BECAUSE SEVERAL PROCEDURAL DEFICIENCIES IN THE APPLICATION AND HEARING PROCESS RENDERED THE BOARD'S HEARING AND DETERMINATION NULL AND VOID.
A. Improper Notice Of The Hearing
B. Untimely Filing Of Disclosure Contribution Form
C. Disregard Of The HPC Recommendations
Plaintiff argues that Judge Antonin erred by concluding that the Board's grant of variances under N.J.S.A. 40:55D-70(d) was not arbitrary, capricious, and unreasonable.
More specifically, plaintiff claims that the Board erred in granting a (d)(1) variance for Tattoli's proposed use of the cellar to house the restaurant's kitchen, because neither the positive nor negative criteria had been proven. Plaintiff also claims that the Board erred by implicitly granting a (d)(1) variance to permit more than one principal use on the property, or to permit otherwise prohibited accessory uses without making any findings on this issue. Finally, plaintiff argues there were no adequate factual justifications and no adequate findings by the Board to support the grant of a (d)(4) variance for excessive floor area ratio, a (d)(5) variance for excessive density, or a (d)(6) variance for excessive height.
Our standard of review is deferential. The decision of a board of adjustment is presumptively valid, and may be reversed only if it is so unsupported by the record, arbitrary, capricious, or unreasonable, that it amounts to an abuse of discretion. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of West Windsor Twp., 172 N.J. 75, 81-82 (2002). This standard of review stems from the judicial deference to the discretion vested in local bodies by the Legislature, and the recognition that local officials who are familiar with their community's characteristics and interests are best equipped to assess the merits of an application for development. Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App. Div. 2001).
It is the applicant's burden to prove the special reasons (positive criteria) and lack of detriment to the public good (negative criteria) necessary for the zoning board to grant variance relief under N.J.S.A. 40:55D-70(d), which provides, in pertinent part:
The board of adjustment shall have the power to:
(d) In particular cases for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: (1) a use or principal structure in a district restricted against such use or principal structure, . . . (4) an increase in the permitted floor area ratio as defined in [N.J.S.A. 40:55D-4], (5) an increase in the permitted density as defined in [N.J.S.A. 40:55D-4], . . . or (6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure.
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.
Here, Tattoli required a use variance under N.J.S.A. 40:55D-70(d)(1), for use of the proposed building's cellar to house the restaurant's kitchen. The grant of a use variance will always be the exception rather than the rule because of the strong legislative policy favoring land use planning by ordinance rather than by variance. Sica v. Bd. of Adjustment of Twp. of Wall, 127 N.J. 152, 156 (1992).
The only "special reasons" that can be considered by the Board are those that promote general purposes of zoning. Medici v. BPR Co., 107 N.J. 1, 10, 18 (1987). Special reasons for new uses generally fall into one of three categories: (1) hardship, that is, the property cannot reasonably be adapted to a conforming use; (2) inherently beneficial uses, that is, those which fulfill a significant or necessary public purpose and therefore promote the general welfare; and (3) particular suitability of the site for the proposed use. Stop & Shop Supermarket Co. v. Bd. of Adjustment of Twp. of Springfield, 162 N.J. 418, 430-31 (2000); Medici, supra, 107 N.J. at 17-18.
If a proposed use is not inherently beneficial, the applicant must prove, and the Board must find, that the use promotes the general welfare because the proposed site is particularly suited for it. Medici, supra, 107 N.J. at 4. That special reasons standard has generally been defined in relation to the purposes of zoning, see N.J.S.A. 40:55D-2, and our decisions have emphasized the promotion of the general welfare as the zoning purpose that most clearly amplified the meaning of special reasons. . . .
Although certain commercial uses may inherently serve the general welfare in a particular community, the typical commercial use can be better described as a convenience to its patrons than as an inherent benefit to the general welfare. For such uses, any benefit to the general welfare derives not from the use itself but from the development of a site in the community that is particularly appropriate for that very enterprise. [Id. at 18.]
Here, since the proposed use is commercial, special reasons could be found only if the property is particularly suitable for the proposed use. Id. at 18, 24. Peculiar suitability may be deemed a special reason "where, generally, the use is one that would fill a need in the general community, where there is no other viable location, and where the property itself is particularly well-fitted for the use either in terms of its location, topography or shape." Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 210 (App. Div. 1999). The test is whether the public benefits because of the community need for the use itself. Ibid.
In addition to showing special reasons, the applicant must demonstrate that the variance "can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance" (the negative criteria). N.J.S.A. 40:55D-70. The first prong of the negative criteria inquiry requires the Board to focus on the effect of a variance on surrounding properties; if the harm is not substantial the variance may be granted. Medici, supra, 107 N.J. at 22 n.12. For commercial uses, the second prong requires "an enhanced quality of proof and clear and specific findings by the board of adjustment that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Id. at 21. Both the applicant's proofs and the board's findings "must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Ibid. The board's resolution must be sufficient to "satisfy a reviewing court that the board has analyzed the master plan and zoning ordinance, and determined that the governing body's prohibition of the proposed use is not incompatible with a grant of the variance." Id. at 23.
Imposing this additional burden on the applicant and the board advances the overall purpose of the MLUL to favor zoning by ordinance rather than by variance. Ibid. It recognizes that the MLUL requires periodic master plan review, ordinances that are consistent with the land use and housing elements of the master plan, and periodic reports by both the planning board and the zoning board to the governing body summarizing decisions on variances on other appeals. Id. at 19. When a governing body does not change an ordinance notwithstanding its knowledge of the land use activities in the municipality, a board must assume that its inaction was deliberate. Id. at 20-21. Imposing an enhanced quality of proof insures that a board will not usurp the governing body's legislative power to regulate land use within the municipality. Id. at 22-23; Feiler v. Borough of Fort Lee Bd. of Adjustment, 240 N.J. Super. 250, 255 (App. Div. 1990), certif. denied, 127 N.J. 325 (1991).
In addition, the applicant must also prove that the variance sought is not inconsistent with the intent and purpose of the municipality's master plan. Medici, supra, 107 N.J. at 4. The proof must reconcile the proposed use variance with the fact that the zoning ordinance omitted the use from those permitted in the district. Id. at 21-23. Moreover, the Board must specifically find that the proposed use is not inconsistent with the intent and purpose of the master plan and zoning ordinance. Id. at 4, 20-21.
In terms of the floor area ratio variance requested under N.J.S.A. 40:55D-70(d)(4), and the density variance requested under N.J.S.A. 40:55D-70(d)(5), the MLUL defines "floor area ratio" as "the sum of the area of all floors of buildings or structures compared to the total area of the site," and "density" as "the permitted number of dwelling units per gross area of land to be developed." N.J.S.A. 40:55D-4. Both floor area ratio restrictions and density restrictions control the intensity of use, and variances from such controls may only be granted by a zoning board of adjustment. Commercial Realty & Res. Corp. v. First Atl. Prop. Co., 122 N.J. 546, 561 (1991); Randolph Town Ctr. Assocs., L.P. v. Twp. of Randolph Bd. of Adjustment, 324 N.J. Super. 412, 415 (App. Div. 1999). To establish special reasons for a floor area ratio variance or a density variance, the relaxed standard of Coventry Square v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285 (1994) controls, as opposed to the more stringent standard of Medici. Under this standard, an applicant for a floor area ratio or density variance must establish that the site will accommodate the problems associated with a floor area or density larger than that permitted by ordinance. See Grubbs v. Slowother, 389 N.J. Super. 377, 386-90 (App. Div. 2007); Randolph, supra, 324 N.J. Super. at 416-17.
Finally, in terms of the height variance requested under N.J.S.A. 40:55D-70(d)(6), the zoning board of adjustment is given exclusive jurisdiction over applications for height variances where the height of a proposed structure exceeds by either ten feet or ten percent the maximum height permitted in the district for a principal structure. N.J.S.A. 40:55D-70(d)(6). According to the court in Maureen A. Grasso & R.G. Grasso, Jr., Inc. v. Borough of Spring Lake Heights, 375 N.J. Super. 41, 53 (App. Div. 2004), plaintiffs "could prove special reasons for a height variance if they could persuade the Board that a taller structure than permitted by ordinance would nonetheless be consistent with the surrounding neighborhood." In essence, the applicant must establish that the proposed structure would not offend any of the purposes of the height limitation set forth in the ordinance. Id. at 53-54 (citing Coventry Square, supra, 138 N.J. at 298-99).
Cognizant of these standards, we conclude that the Law Division properly affirmed the grants to Tattoli of a variance pursuant to N.J.S.A. 40:55D-70(d)(4) for an increase in the floor area ratio (FAR); a variance pursuant to N.J.S.A. 40:55D-70(d)(5) to permit an increase in the permitted density; and a variance pursuant to N.J.S.A. 40:55D-70(d)(6) for excessive height. The record supports the Board's conclusion that Tattoli established the necessary special reasons for obtaining these variances. He presented expert testimony that established that there were various other buildings in the vicinity that exceeded the height permitted by the ordinance, and that the increase in the zoning density would not affect the character of the zoning district. There was also testimony that reconstruction of the famous Clam Broth House restaurant would replace a significant missing feature in the historic district, and that the proposed size of the restaurant would provide a facility that was lacking in the City and would benefit the community.
We also reject plaintiff's contention that the Board erred by implicitly granting to Tattoli a (d)(1) variance for a mixed use on his property. Plaintiff contends that Hoboken's code does not provide for mixed uses in the CBD(H) zone, and Tattoli's proposed building, which would contain a restaurant, office space, and residential space, is a mixed use structure that requires a variance.
The Board responds that a variance to permit a mixed use of the property is not required under the City ordinance, because all of the uses proposed by Tattoli (restaurant, office, and residential) are permitted primary uses within the CBD(H) zone, and none of the proposed uses was more primary than the others. Moreover, the proposed project promoted the goal of the City's Master Plan to encourage a mix of uses in new developments.
The issue presented is one of statutory construction. Although we interpret the City's ordinance de novo, the Board's interpretation is accorded some consideration, due to the Board's knowledge of local circumstances. Grubbs, supra, 389 N.J. Super. at 383.
In support of his position that a variance was required for a mixed use, plaintiff relies upon Wyzykowski v. Rizas, 132 N.J. 509, 511 (1993), in which the Court was presented with the question of "whether the provision in a municipal ordinance of apartments as an accessory use to commercial uses authorizes a mixed-use project in which the commercial uses and the apartment uses have no relationship other than that they are in the same structure." The Court held that the ordinance did not permit such a mixed use, because "the enumeration of apartments as an accessory use to commercial uses, without more, contemplates that the apartments and the primary use have some relationship other than that they are in the same building or structure." Ibid. Therefore, a mixed use variance was required, id. at 511- 12, notwithstanding the fact that there were many structures throughout the municipality that were similar in nature to the one proposed by the applicant. Id. at 514, 520-21. In so holding, the Court noted that "[t]he governing body clearly has the power to provide mixed use commercial and residential structures as a primary use in the . . . zone," however, it had not done so. Id. at 521.
In this case, the question presented is whether the ordinance permits more than one principal use on the same lot without the need for a variance. We considered this question in Sun Co. v. Zoning Bd. of Adjustment of Borough of Avalon, 286 N.J. Super. 440, 443-47 (App. Div.), certif. denied, 144 N.J. 376 (1996), and held that Avalon's zoning ordinance did not permit two principal uses on the same lot, in other words a mixed use, without a variance. In this regard, we considered that "the usual rule of construction of zoning ordinances is that where a use is not expressly provided for, it is prohibited." Id. at 444. Moreover, we considered that, typically, one would expect the "principal use" of a property to be the predominant, primary, or main use of the property, and that, significantly, Avalon's ordinance modified the phrase "principal use" with the word "the," indicating that the Borough intended only one principal use per lot. Id. at 444-47. See also Fin. Servs., L.L.C. v. Zoning Bd. of Adjustment of Borough of Little Ferry, 326 N.J. Super. 265, 274-75 (App. Div. 1999) (zoning ordinance proscribed more than one principal use on property at issue, where ordinance permitted only "a" principal use and its accessory uses).
We find the cited cases distinguishable and therefore not dispositive of the outcome in the present case. It is undisputed that Tattoli did not request a variance for a mixed use building, although his proposal was for a mixed use development. However, in the present case, unlike in Wyzykowski, none of the proposed uses was more principal than the other. Instead, two floors were allocated to restaurant usage, two floors were allocated to office usage, and two floors were allocated to residential usage.
Moreover, Hoboken's ordinance is significantly different than the ordinances considered in Wyzykowski, Sun Co., and Fin. Servs. Specifically, Hoboken's ordinance permits all three proposed uses, restaurants and bars, office buildings and offices, and residences, as "principal permitted uses." Moreover, unlike the ordinance in Wyzykowski, the ordinance does not treat any of the three proposed uses as accessory uses to some other use; and, significantly, the Hoboken ordinance does not prohibit mixed uses.
Further, although Hoboken's ordinance does not explicitly permit mixed use structures, the ordinance appears to anticipate mixed uses, including multiple principal uses as proposed by Tattoli. For example, Hoboken's ordinance does not modify "principal use" with "the," thereby indicating an intent for a single principal use per property. Rather, Hoboken's ordinance speaks in the plural, and states that "[p]rincipal permitted uses shall be as follows." (emphasis added)
Moreover, the ordinance expressly anticipates mixed use buildings by providing that: the maximum lot coverage for "[r]esidential or the residential portion of mixed use" buildings is 60 percent (emphasis added); "[r]esidential floors in mixed use buildings must be no closer to the rear lot line than thirty (30) feet" (emphasis added); "residential density of development of a site will be determined by site area per dwelling unit and maximum number of dwelling units adjusted where necessary for other on-site principal uses as calculated below" (emphasis added); and "[w]here principal uses other than residential are proposed for the subject building (such as retail or office), the percentage of total permitted floor area occupied by the nonresidential use shall be applied against the maximum number of dwelling units and the residential units shall be reduced thereby."
Still further, as noted by the Board, Hoboken's master plan encourages an appropriate mix of land uses, and a mix of uses in new developments. This also supports the conclusion that a mixed use building is permissible under the ordinance, and does not require a variance.
Based upon these facts, we conclude that the Hoboken ordinance may be interpreted as permitting mixed uses and, therefore, Tattoli did not require a mixed use variance. As a result, the Board's resolution is not deficient because it did not grant him such a variance.
Finally, we address the issue concerning the use of the basement for food preparation, which the Board determined was a permissible use under the Medici standards.
Plaintiff argues that the Board erred in permitting the basement of the proposed building to be used as a kitchen for the restaurant because the Hoboken ordinance does not list food preparation as one of the permitted uses for a basement. As a result, plaintiff argues that the Board has, in effect, granted a variance for a prohibited use without a demonstration of the statutory requisites for a d(1) variance. Tattoli argues, as he did before the Law Division, that a d(1) variance was not required for the basement kitchen because such use is accessory to the restaurant itself, which is a permitted use. Thus, only a (c) variance was needed for the basement, and it was not necessary to meet the enhanced burden of proof imposed by Medici. We agree with Tattoli.
This is, of course, not a situation where the basement is to be used for the preparation or sale of food unrelated to any other use in the structure. Thus, if Tattoli had proposed placing a bakery in the basement as a stand-alone enterprise, the use would be clearly prohibited and a d(1) variance required. Here, the kitchen is part and parcel of the restaurant. The restaurant cannot exist without a kitchen (somewhere) and the kitchen serves no purpose if it is unaffiliated with a restaurant (somewhere). Each use is, in a very real sense, accessory to the other, or co-primary. As a result, we see no purpose to be served by severing the two uses for separate consideration. The unit in question, for zoning purposes, is a restaurant with kitchen included, of necessity.
A review of the cases addressing principal versus accessory use provides little assistance, all involving situations far removed from the restaurant/kitchen relationship at issue here. See William M. Cox, New Jersey Zoning and Land Use Administration, §§ 10-2, 10-3, 10-6, 10-8 (GANN 2007). The cases focus primarily on "whether a claimed accessory use is 'customarily incident' to a permitted principal use." Tanis v. Twp. Of Hampton, 306 N.J. Super. 588, 603 (App. Div. 1997) (quoting State v. P.T.& L Constr. Co., Inc., 77 N.J. 20, 26-27 (1978)). See also Acorn Montessori v. Bethlehem Twp., 380 N.J. Super. 216, 235-36 (Law Div. 2005). In this case, such an analysis, of principal versus accessory use, is not only unhelpful, but counterproductive. The uses here, restaurant and kitchen, cannot, as we said, be viewed separately, in the traditional manner.
Because the restaurant is a permitted use in the zone, it was not necessary to subject the basement's use to the stringent (d) criteria, rather than the more relaxed (c) standards. In this case, there had always been a restaurant on the site and there are numerous other restaurants in the zone. Use as a restaurant - with kitchen included - was entirely appropriate and clearly met the requirements for a (c) variance under the standards which we will address in the succeeding section. We may, of course, affirm a decision on a basis other than that provided by the trial court. Neu v. Planning Bd. of Twp. of Union, 352 N.J. Super. 544, 551 (App. Div. 2002). The record before this Board, and indeed its findings, support the conclusion that the use of the basement area for food preparation, subject to appropriate clearance by health officials, qualified for a (c) variance as part of the permitted restaurant use.
Plaintiff argues that the judgment of the Law Division should be reversed in part because the Board's grant of variances to Tattoli under N.J.S.A. 40:55D-70(c) was arbitrary, capricious, and unreasonable. According to plaintiff, Tattoli failed to present sufficient evidence, and the Board failed to make adequate findings, that Tattoli's requested (c) variances could be granted.
We have earlier set forth the applicable standard of review. The Law Division rejected plaintiff's arguments, finding that the Board had acted reasonably in granting the requested variances. We agree.
Under N.J.S.A. 40:55D-70(c)(2):
The board of adjustment shall have the power to:
(2) where in an application or appeal relating to a specific piece of property the purposes of this act would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to article 8 of this act. . . .
An applicant for a variance pursuant to N.J.S.A. 40:55D-70(c) must prove the positive and negative criteria. Nash v. Bd. of Adjustment of Morris Twp., 96 N.J. 97 (1984). In order to obtain a (c)(2) variance, the applicant must show that: (1) the variance relates to a specific piece of property; (2) the purposes of the MLUL would be advanced by a deviation from the zoning ordinance requirement; (3) the variance can be granted without substantial detriment to the public good; (4) the benefits of the deviation would substantially outweigh the detriments; and (5) the variance would not substantially impair the purposes and intent of the zone plan and the zoning ordinance. Green Meadows at Montville, L.L.C. v. Planning Bd. of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000); Ketcherick v. Borough of Mountain Lakes Bd. of Adjustment, 256 N.J. Super. 647, 657 (App. Div. 1992). The Board should not grant a (c)(2) variance when only the purposes of the owner will be advanced. See Kaufmann v. Planning Bd. for Warren Twp., 110 N.J. 551, 563 (1988). Instead, the grant of the variance must benefit the community by representing a better zoning alternative for the property. Ibid. Essentially, a (c)(2) variance creates the opportunity for improved zoning. Ibid.
In addition to the positive criteria of N.J.S.A. 40:55D-70(c)(2), an applicant for a (c) variance must also satisfy the negative criteria set forth in N.J.S.A. 40:55D-70(d). Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58 (1999). Establishment of the negative criteria for a (c) variance requires the applicant to prove that the variance can be granted without substantial detriment to the public good. Id. at 57-58.
Here, the Board granted (c) variances for maximum lot coverage, maximum number of building stories, minimum rear yard, maximum roof coverage by appurtenances, and minimum lot depth. The Board determined that "the benefits of the proposed improvements substantially outweigh any detriment."
The record supports the Board's findings on the positive and the negative criteria. Unrebutted expert testimony demonstrated that a 30-foot rear yard set-back was impossible on the 50-foot side of the block. This explained why there was a 0-foot condition currently existing on the block. Moreover, historically, there had been 100 percent lot coverage, which Tattoli sought to recreate on the lot. With respect to the roof appurtenances, expert testimony, again unrebutted, suggested that there was no detriment to the public and that the appurtenances would allow space for architectural elements of the building.
These facts support the Board's determination that granting the (c) variances would have no negative impact on the property or the surrounding neighborhood. Also, as discussed in Point IV, the record supports the Board's conclusion that the proposed building would be a positive enhancement to the area and that the benefits substantially outweigh the detriments.
Plaintiff argues that the judgment of the Law Division should be reversed to the extent the court affirmed the Board's grant of site plan and subdivision approval. Plaintiff argues that Tattoli failed to present necessary proofs, and the Board failed to make the necessary findings on these issues.
The Law Division rejected these arguments and held that the Board acted reasonably. Our standard of review is set forth in Section IV of this opinion.
Detailed findings of facts and conclusions of law are to be set forth in board resolutions, for both grants of applications and denials. New York SMSA, L.P. v. Bd. of Adjustment of Twp. of Weehawken, 370 N.J. Super. 319, 334 (App. Div. 2004). The resolution should accurately reflect all the findings and conclusions of the board. Scully-Bozarth Post 1817 of the VFW v. Planning Bd. of City of Burlington, 362 N.J. Super. 296, 312 (App. Div.), certif. denied, 178 N.J. 34 (2003). The board's findings must be based on facts that are in the record. High Horizons Dev. Co. v. State Dep't of Transp., 120 N.J. 40, 53-54 (1990). However, it is not enough to merely recite testimony. Loscalzo v. Pini, 228 N.J. Super. 291, 305 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989). Where findings of fact are inadequate, the remedy is for the court to remand for adequate fact finding. Smith v. Fair Haven Zoning Bd. of Adjustment, 335 N.J. Super. 111, 123 (App. Div. 2000).
Here, the Board issued findings of fact and conclusions with respect to Tattoli's application for site plan and subdivision approval. The Board resolved that:
32. With respect to the request for Preliminary Major Subdivision and Preliminary Major Site Plan Approval, the Board finds that provided the conditions set forth in the Resolution are complied with, the proposed use will have no substantial adverse impact on parking, traffic, drainage, fencing, exterior lighting and paving, and there will be no substantial adverse impact on surrounding properties. Rather, the proposal, when implemented, in accordance with terms and conditions of this Resolution, will promote the purposes of the MLUL and will not be adverse to sound planning.
33. Granting the Preliminary Major Subdivision and Preliminary Major Site Plan Approval with the conditions set forth in this Resolution is consistent with sound planning. The Applicant seeks to promote and enhance the use of the Property in a productive manner.
34. The Board concludes that the Application can be granted without substantial detriment to the public good and will not substantially impair the intended purposes of the zone plan and the zoning ordinance.
These findings adequately support the Board's grants of subdivision and site plan approvals and establish that the Board did not act in an arbitrary, capricious or unreasonable manner.
Plaintiff argues that the judgment of the Law Division should be reversed and the matter remanded to the Board due to three deficiencies in the application and hearing process that affected the Board's hearing and subsequent determination, specifically: improper notice of the hearing, because notice was not given to individual condominium owners, but only to their condominium associations; untimely filing and submission of a Contribution and Disclosure Statement; and the Board's failure to consider the recommendations of the Historic Preservation Commission. The trial court rejected these arguments, as do we.
In terms of notice, the question presented is one of statutory interpretation, which we review de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). The pertinent part of the MLUL provides that:
Except as provided in paragraph (2) of subsection h. of this section, notice of a hearing requiring public notice pursuant to subsection a. of this section shall be given to the owners of all real property as shown on the current tax duplicates, located in the State and within 200 feet in all directions of the property which is the subject of such hearing; provided that this requirement shall be deemed satisfied by notice to the (1) condominium association, in the case of any unit owner whose unit has a unit above or below it, or (2) horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it. Notice shall be given by: (1) serving a copy thereof on the property owner as shown on the said current tax duplicate, or his agent in charge of the property, or (2) mailing a copy thereof by certified mail to the property owner at his address as shown on the said current tax duplicate. [N.J.S.A. 40:55D-12(b) (emphasis added).]
Notice to the condominium association is therefore sufficient under the language of the MLUL. Individual notice need not be given to the owners of each condominium unit.
Here, the condominium associations within a 200-foot radius of the property were served with notice of the hearing. Accordingly, as the trial court found, the notice provided by Tattoli was sufficient under the MLUL.
Plaintiff nevertheless argues that notice to individual condominium owners was required under sections 44-29B and 44-30 of the Hoboken City Code, which provides that notice must be given to "the owners of all real property" within 200 feet of the property to be developed, and that the director of the department of revenue and finance shall provide a certified list of such property owners. The Code makes no distinction between condominium owners and other owners of real property. As to this point, plaintiff also relies upon the Condominium Act, N.J.S.A. 46:8B-1 to -38, under which "[e]ach [condominium] unit shall constitute a separate parcel of real property which may be dealt with by the owner thereof in the same manner as is otherwise permitted by law for any other parcel of real property." N.J.S.A. 46:8B-4.
Finally, plaintiff points to the New Jersey Planned Real Estate Development Full Disclosure Act (PREDFDA), N.J.S.A. 45:22A-21 to -48.1, which addresses the information that must be provided to prospective purchasers in a planned real estate development. Plaintiff argues that, if the court holds that under the MLUL notice need not be given to individual condominium owners, then that fact is something that will need to be disclosed to purchasers under the PREDFDA.
Plaintiff's arguments, however, do not establish that the notice provided in this case was deficient under the MLUL. Neither of the state statutes upon which plaintiff relies are inconsistent with the MLUL. Moreover, the Hoboken ordinance cannot require more notice than is required by the State under the MLUL. New York SMSA L.P. v. Twp. Council of Edison, 382 N.J. Super. 541, 547-48 (App. Div. 2006). As to this issue, we stated:
The MLUL was intended to simplify, expedite and standardize procedures for approval by local boards, limit the potential for harassment of applicants, and bring consistency, statewide uniformity, and predictability to the approval process. It is not difficult to envision the negative impact on these goals if the clear provisions of N.J.S.A. 40:55D-12 governing the scope and method of notice were construed to permit each municipality to adopt its own standards. [Id. at 550.]
With respect to the timeliness of Tattoli's Contribution Disclosure Statements, N.J.S.A. 40:55D-10.3 provides that municipalities must adopt a checklist by ordinance that lists the information needed for the application. Here, the checklists provided to Tattoli did not include the requirement for Contribution Disclosure Statements. However, once this requirement was brought to Tattoli's attention, the Contribution Disclosure Statements were submitted, and they showed that no contributions had been made.
Finally, with respect to the Board's alleged failure to consider the recommendation of the City's Historic Commission, the MLUL provides that:
The planning board and board of adjustment shall refer to the historic preservation commission every application for development submitted to either board for development in historic zoning districts or on historic sites designated on the zoning or official map or identified in any component element on the master plan. This referral shall be made when the application for development is deemed complete or is scheduled for a hearing, whichever occurs sooner. Failure to refer the application as required shall not invalidate any hearing or proceeding.
The historic preservation commission may provide its advice, which shall be conveyed through its delegation of one of its members or staff to testify orally at the hearing on the application and to explain any written report which may have been submitted. [N.J.S.A. 40:55D-110]
The Hoboken City Code requires that "[t]he Historic Preservation Commission shall review all applications involving historic sites or property in an historic district," and that the Historic Commission shall submit a report to the Board for its consideration. It also permits a member of the Historic Commission to testify at any hearings held on the application. The Code further provides, however, that the Board "shall limit its consideration of such report [by the Historic Commission] to those aspects of the application not determined by the Board under the Municipal Land Use Law."
Here, Tattoli met with the Historic Commission, which produced a written report. A representative of the Historic Commission also testified at the hearing on the application. The Board determined that the application could be approved with the condition that the applicant would work with the Historic Commission to determine the façade of the building, but that the Historic Commission had no authority to demand that the building be recreated in the same exact manner as it originally existed.
This record establishes that the Board considered the recommendations of the Historic Commission and acted in a reasonable manner. The trial court therefore properly determined that the Board had not acted arbitrarily, unreasonably, or capriciously.
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