October 16, 2007
LORRAINE MOCCO, PLAINTIFF-APPELLANT,
JERSEY CITY ZONING BOARD OF ADJUSTMENT AND BRUNSWICK 9 ASSOCIATES, LLC, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1670-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2007
Before Judges Fuentes, Grall and Chambers.
Plaintiff Lorraine Mocco appeals from a final judgment entered in an action in lieu of prerogative writs. The trial court affirmed defendant Jersey City Zoning Board of Adjustment's (the Board) grant of use, density, height and bulk variances to defendant Brunswick 9 Associates, LLC (Brunswick), the contract purchaser of the subject property (the Brunswick lot). Because the Board's grant of the use variance lacks adequate support in the record and does not comport with the statutory criteria, N.J.S.A. 40:55D-70d, we reverse.
The Brunswick lot consists of 1.814 acres presently occupied by several one-story, dilapidated and obsolete industrial buildings currently in use. The lot fronts on Brunswick Street between Ninth Street, to its south, and the midpoint of Tenth Street, to its north. It backs onto property occupied by railroad tracks and an easement for the New Jersey Turnpike, which lies to its west. The adjacent property to the north, which is owned by Mocco, fronts on Brunswick Street and runs from the midpoint of Tenth Street north. Although Tenth Street was vacated in the 1940s, Mocco's property and the Brunswick lot have easements that give both rights of ingress and egress over the vacated street.
The Brunswick lot is located in an R-2 zone. The permitted use is townhouses with a maximum of three dwelling units each, a height of no more than forty feet and a maximum density of fifty-five dwelling units per acre, or ninety-nine units for this 1.814 acre lot. Maximum lot coverage is eighty percent and maximum building coverage is sixty percent.
Brunswick sought use, height and density variances needed to permit a "mid-rise residential dwelling" with a height of sixty-two feet and 143 dwelling units and variances authorizing lot coverage of ninety-four percent and building coverage of eighty-one percent.*fn1 The proposed apartment building will include a garage to accommodate parking and deliveries. Cars will enter and leave the garage via the easement on the former Tenth Street. Trucks will enter by way of that easement and leave on Ninth Street. The garage will have a "green roof" that will retain rainwater, support the growth of vegetation and provide a dog-run for the building's resident's use.
This section of R-2 zoning is occupied entirely by Brunswick's lot and the railroad and turnpike property behind it. Brunswick's professional planner described the zone as a "pocket zone" consisting of one block surrounded by special purpose areas.
There are lower density uses to the immediate south of the Brunswick lot and higher density uses to its immediate north and east. To the south of the lot, across Ninth Street, there is four-and-one-half acre city park on the west side of Brunswick Street and an R-1 zone, in which one and two-family dwellings are permitted, on the east side of Brunswick Street. Farther south on Brunswick street, beyond the R-1 zone, lies the Ninth Street Redevelopment Area. The permitted residential use in that area is townhouses with a density of seventy-five dwelling units per acre. Mocco's property to the north is vacant but is located in the Jersey Avenue Redevelopment Area. In that area, mid-rise buildings with a maximum height of seventy-feet, a maximum density of fifty dwelling units per acre and maximum lot and building coverage of sixty and eighty percent are permitted. Density in the Jersey Avenue Redevelopment Area may be increased up to a maximum of eighty units per acre if the developer contributes land or funds for open space in the area. Directly across Brunswick Street between Ninth and Tenth Streets there is a historic warehouse that is sixty-five feet tall and presently used for storage.
In the opinion of the applicant's planner, R-2 zoning is "inappropriate" because the Brunswick lot lacks any frontage on the west and has only easement access on its north. The proposed building would help "buffer" the railroad and turnpike uses from the neighborhood use to its east more effectively than townhouses.
Brunswick's experts were equivocal about the feasibility of developing the lot with the townhouses permitted in the R-2 zone. At one point the planner conceded that it would be possible, but he later said he did not know. The architect testified that the lot could accommodate twenty-nine townhouses of three units each. He also said that he had not concluded that townhouses would "work," had not "looked at townhouses on the site[,] and . . . could not see that being a viable option with the Jersey City Zoning Ordinance for this site." He noted that there were conflicts between current law and the zoning ordinance but did not elaborate. He did not believe he could design townhouses at a "comparable" density and meet all of the requirements of the zoning ordinance.
Claire Davis, Jersey City's Supervising Planner and Secretary to the Planning Board, recommended approval of the variances, subject to conditions. Davis had worked on the city's zoning ordinance, which was adopted in 2001, and on the redevelopment areas established in the vicinity of the Brunswick lot. Although the planning board selected and recommended R-2 zoning for this property after considering the structures and uses in the surrounding area, there were some "bloopers" in the ordinance. Moreover, a nearby redevelopment area could have been expanded to include this underutilized industrial lot, and the multi-family residential uses permitted in the Jersey Avenue Redevelopment Area also were appropriate for this lot. Davis further noted that during the two years preceding Brunswick's application, changes in construction code enforcement made townhouses with more than two dwelling units less efficient. In her view, replacement of the non-conforming industrial use with a mid-rise apartment building of the sort permitted in the nearby Jersey Avenue Redevelopment Area with an open-space contribution would be consistent with the master plan and ordinance and provide a public benefit. The "green roof," which Brunswick agreed to add at the recommendation of the city's planners, would diminish the negative impact of granting the lot and building coverage variances.
The members of the public and the objector questioned the mass of the proposed apartment building and its impact on flooding, traffic and open space. They questioned why the developer could not adapt the lot to accommodate the townhouses permitted in this zone that is situated near a large park, in a residential area and bordered by both lower and higher density residential uses.
On the basis of Davis's recommendations, the Board approved all variances requested.
The Board's resolution includes the following findings and conclusions:
4. The Premises are currently occupied by operational, but nonetheless dilapidated and obsolete, industrial structures.
5. The Premises currently has only two (2) street frontages . . . .
. . . .*fn2
7. If developed as townhouses the development would still require multiple variances under the Municipal Land Use Law (N.J.S.A. 40:55D-70(c)) because the Premises lacks the appropriate street frontage required to create conforming lots required by the R-2 District.
8. Based on the lack of frontage, and in light of the uses, density, height and bulk of the structures permitted on sites within direct proximity of the Premises, it appears that the subject site may have been improperly zoned by the City at the time of the adoption of the Ordinance.
9. The size, scale and mass of the proposed development on the Premises would be harmonious and compatible with the size, scale and mass of developments allowed on the parcels in closest proximity to the Premises.
10. The proposed development would eliminate the current obsolete and dilapidated industrial use and industrial structures (uses and structures prohibited within the R-2 District as well as adjacent districts) located on the Premises and would develop the site into a residential housing use more conforming to the requirements and intent of the Ordinance and City's Master Plan.
11. The adjacent Jersey Avenue Redevelopment Plan allows fifty (50) dwelling units per acre, but contains a provision for a density bonus to allow up to eighty (80) dwelling units per acre in exchange for an open space contribution based on the number of bonus units. The applicant has agreed to contribute to the City's Open Space Trust Fund the same amount that would have been required under the Jersey Avenue Redevelopment Plan: $291,500.00 at $5,500.00 per unit approved in excess of 50 units an acre (in this case fifty-five (55) units).
12. The proposed development requires variances from several coverage and bulk requirements of the R-2 District. However, the unique topography of the site along with the unique lack of street frontage would render the site substantially undevelopable if the requirements of the R-2 District were to be strictly applied, hence engendering a severe hardship upon the applicant. Additionally, the proposed development would contain a "green roof" which mitigates the impact of the lot coverage variance requested. Accordingly, granting the coverage and bulk variances shall not result in a substantial detriment to the intent and purpose of the Master Plan and Land Development Ordinance for the City of Jersey City.
13. The applicant meets the statutory criteria for the approval of the "d" variances, for use and density because the proposed development will promote the establishment of appropriate population densities that will contribute to the well being of the community, because the proposed development promotes a desirable visual environment through creative techniques and good civic design and arrangements, and because the proposed project provide advances the public health, safety and welfare by providing sufficient space in an appropriate location for this type of residential use according to its environmental requirements, because obsolete and dilapidated structures and the industrial uses associated therewith would be eliminated and the property will be developed into a residential use that is more conforming to the intent and purpose of the Ordinance and the City's Master Plan than the existing use, and because the proposed development demonstrates that the granting of the use and density variances requested shall not result in a substantial detriment to the intent and purpose of the City's Master Plan and Land Development Ordinance for the City of Jersey City. . . . .*fn3
Mocco filed a timely action in lieu of prerogative writs, contending that the Board's approval of the use, height and density variances did not comport with the standards set forth in N.J.S.A. 40:55d-70d; the contribution for open space was not authorized by ordinance; and the application was defective because the plan included use of the portion of the easement on Mocco's property and Mocco did not sign the application.*fn4 The trial judge concluded that the Board's decision to grant the use variance was supported by the record and not arbitrary or capricious and that Mocco could seek relief for intensified use of the easement in a separate action in the Chancery Division. This appeal followed.
The standards governing judicial review of the grant of a use variance are clearly stated in Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75 (App. Div. 2006).
It is well-established that "[v]ariances to allow new nonconforming uses should be granted only sparingly and with great caution since they tend to impair sound zoning." Consequently, although deference must be given to any decision by a board of adjustment, a reviewing court gives less deference to a grant than to a denial of a use variance. In reviewing the grant of a use variance, a court must consider whether a board of adjustment "in the guise of a variance proceeding, [has] usurp[ed] the legislative power reserved to the governing body of the municipality to amend or revise the [zoning] plan . . . ." To sustain a use variance, a reviewing court must find both that the "board's decision comports with the statutory criteria and is founded on adequate evidence." [Saddle Brook, supra, 388 N.J. Super. at 75 (internal citations omitted).]
Subsection d of N.J.S.A. 40:55D-70 provides "positive" and "negative" criteria for grant of use variance. Id. at 75-76. With respect to the "positive" criteria, "[a] board of adjustment is authorized to grant a use variance only '[i]n particular cases and for special reasons.'" Id. at 76 (quoting N.J.S.A. 40:55D-70d). With respect to the "negative criteria," "an applicant for a variance must show that the variance 'will not substantially impair the intent and purpose of the zone plan and zoning ordinance.'" Ibid. The applicant must establish both the positive and negative criteria. N.J.S.A. 40:55D-70; see Medici v. BPR Co., 107 N.J. 1, 17-26 (1987).
"Special reasons," or the positive criteria, may be found:
(1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility; (2) where the property owner would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone; [or] (3) where the use would serve the general welfare because "the proposed site is particularly suitable for the proposed use." [Saddle Brook, supra, 388 N.J. Super. at 76 (internal citations omitted).]
Mocco contends, as she did in the trial court, that Brunswick did not establish either the positive or negative criteria and that this variance grant is a product of an improper usurpation of legislative power reserved to the governing body. Brunswick and the Board argue that this variance is supported by the third special reason, i.e. that the proposed use will serve the general welfare and that the proposed project will not substantially impair the intent and purpose of zoning in Jersey City.
On this appeal, neither Brunswick nor the Board argue that the variance was granted because the proposed use is "inherently beneficial" or because limiting development to a permitted use would result in "undue hardship." See Stop & Shop Supermarket Co. v. Bd. of Adjustment of Tp. of Springfield, 162 N.J. 418, 431 (2000) (discussing "undue hardship")*fn5 ; Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 159 (1992) (discussing inherently beneficial uses). Accordingly, the Board was required to find that the public good would be served because the Brunswick lot is particularly appropriate for the proposed apartment building. See Saddle Brook, supra, 388 N.J. Super. at 76-77.
The grant of this use variance does not comport with the statutory criteria. See Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990); Saddle Brook, supra, 388 N.J. Super. at 76. The Board concluded that Brunswick's proposed use would promote the "the public health, safety and welfare" by establishing "appropriate population densities," creating a "desirable visual environment," eliminating "obsolete and dilapidated structures and [associated] industrial uses," and placing this residential use in an area with "sufficient space" and an "appropriate location." When a use variance is based on the "peculiar suitability special reasons concept," the question is "whether 'the public welfare benefit [served by the proposed use] is peculiarly dependent upon the location of the site for the variance.'" Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 209 (App. Div. 1999) (quoting Fobe Assoc. v. Mayor of Demarest, 74 N.J. 519, 527 (1977)), see Saddle Brook, supra, 388 N.J. Super. at 76-78. In short, the Board had to find that there was a need for the proposed use to be situated on the Brunswick lot.
Paragraphs eight and nine of the Board's resolution note that the proposed building is compatible with the zoning requirements in nearby zones and that Brunswick's lot may have been improperly zoned. A finding that the proposed "use fits well with the surrounding area . . . does not[, however,] equate to special reasons." Funeral Home Mgmt., supra, 319 N.J. Super. at 209; see also id. at 207-12 (discussing the necessary relationship between the site and the general welfare and cases addressing that issue). Indeed, a finding that apartment buildings are permitted in nearby zones militates against a finding of this special reason. It is more, not less, difficult to conclude that this apartment building on this lot will serve the public good by meeting an unmet demand for apartments. See Fobe, supra, 74 N.J. at 532-38. It is also more difficult to conclude that this lot is more suitable than lots on which apartments buildings are a permissible use. See Cedrl Constr. Co. Inc. v. Twp. Comm. of E. Hanover., 86 N.J. 303, 306-07 (1981) (discussing importance of boundaries between zone area and the potential for erosion through variance); Saddle Brook, supra, 388 N.J. Super. at 77 (discussing the need for a showing that other sites are not as suitable).
The Board found that the proposed use would bring a public benefit by eliminating the non-conforming industrial use and the dilapidated buildings on the site and creating a more desirable visual environment. Development of the lot with a conforming residential use would also suit that purpose, however. See Degnan v. Monetti, 210 N.J. Super. 174, 184-85 (App. Div. 1986). Moreover, aesthetic considerations "have less relevance" to an application for a variance to permit a new non-conforming use than to an application for improvement of an existing non-conforming use, and "ambience alone can seldom be a proper basis for special reasons." Burbridge, supra, 117 N.J. at 392-93; Funeral Home Mgmt., supra, 319 N.J. Super. at 213.
The Board apparently relied on the lot's lack of access to public streets on two sides of the property. If there is a reason why that lack of street frontage makes this lot particularly well-suited for an apartment building, the Board's resolution does not explain why. Absent grounds for a finding of "undue hardship," a Board may not grant a use variance because the proposed use generally, and independent of conditions peculiar to the site, presents fewer problems than the permitted use. See Saddle Brook, supra, 388 N.J. Super. at 77 (discussing lower demand for parking associated with fast food restaurants).
The resolution highlights what appears to be the Board's central justification for granting this variance. As stated in paragraph eight, the board determined "that the subject site may have been improperly zoned by the City at the time of the adoption of the Ordinance." That was the point stressed by Brunswick's experts and suggested by Davis. Paragraph eleven makes it clear that the Board decided to correct the mistake by treating the Brunswick lot as if it were in a redevelopment area. A board may not grant a variance to correct what its members perceive to be an error in the zoning ordinance. Saddle Brook, supra, 388 N.J. Super. at 78. This Board's perception that Brunswick's lot is improperly zoned, like the Saddle Brook Board's conclusion that a provision of the zoning ordinance banning fast food restaurants was unreasonable, "is not a basis for a board of adjustment to grant a use variance." Id. at 79; see Bern v. Borough of Fair Lawn, 65 N.J. Super. 435, 451 (App. Div. 1961).
Finally, a board's finding that the zoning for a particular lot was mistaken when the ordinance was adopted is relevant to the "negative" criteria as well. A board cannot grant a variance to correct the zoning scheme; it must find that the proposed use is "not inconsistent" with the intent and plan of that scheme. Saddle Brook, supra, 388 N.J. Super. at 79-80 (discussing requisite showing); see Medici, supra, 107 N.J. at 4-5, 20-21.
Because Brunswick did not establish special reasons for this use variance or that its grant would not substantially impair the intent and purpose of the ordinance, we reverse the order approving the grant. That determination makes it unnecessary to consider Mocco's additional arguments.