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Bre/Prime Properties, LLC v. Zoning Board of Adjustment of the Township of Fairfield

November 2, 2007

BRE/PRIME PROPERTIES, LLC, A DELAWARE LIMITED LIABILITY COMPANY, PLAINTIFF-APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF FAIRFIELD, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5209-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 18, 2007

Before Judges Coburn, Fuentes and Grall.

Plaintiff BRE/Prime Properties, LLC appeals from the final judgment of the Law Division affirming the decision of the Zoning Board of Adjustment of the Township of Fairfield (Board) which denied use variance relief pursuant to N.J.S.A. 40:55D- 70(d)(2) and (d)(4), as well as ancillary bulk, or dimensional variances and minor subdivision approval.

This case arose after plaintiff applied to the Board for variance relief and minor subdivision approval regarding property that it owned. The lot is fully developed containing two buildings connected only by a covered pedestrian walkway.

The one structure, a pre-existing nonconforming use, is a five story hotel with a restaurant. The other structure, an office building, is a conforming use on the property.

The new subdivision would divide the existing lot into two lots. The division was to cut across the shared pedestrian walkway connecting the two structures. The new subdivision would allow each subdivision to be utilized in its designed use. Plaintiff concedes that the driving force behind the subdivision is to make the existing property more marketable, by permitting the two pre-existing businesses (hotel and office building), to be sold separately. Thus, plaintiff's application is intended to maximize the economic potential of this property.

The current floor area ratio (FAR) on the existing lot is nonconforming. After the proposed subdivision, both lots would still have a nonconforming FAR.

At the conclusion of plaintiff's presentation, the Board considered a resolution approving the application. Four members voted in favor of approval; three voted not to approve the application. Having failed to garner the required minimum of five votes to grant a "d" variance, the Board declared the application denied. N.J.S.A. 40:55D-70(d)(2), (d)(4). The Board thereafter adopted a resolution memorializing its findings of fact and conclusions of law in support of the statutory denial. On plaintiff's appeal by way of an action in lieu of prerogative writs, the Law Division affirmed the decision of the Board.

After reviewing the record before us, and in light of prevailing legal standards, we affirm substantially for the reasons expressed by Judge Winard in his oral opinion delivered from the bench on January 4, 2007. We add only the following brief comments.

At the hearing before the Board, plaintiff presented three witnesses: Julius Szalay, a certified engineer and surveyor; Glenn Alba, principal of Blackstone Group, the owner of plaintiff; and Peter G. Steck, the planner. Szalay described the subdivision "as a financial subdivision of the property." He stated, "what happens is the office building will then be on its own separate lot and all the existing access driveways, parking, utilities that are servicing this one single building on the property, all have cross-access easements to allow the site to continue to function as it is."

In his testimony before the Board, Blackstone Group principal Alba confirmed that: "We're looking simply for the subdivision in the sense that we're no longer occupying a significant portion of this building . . . . [W]e're now only operating on one floor of this building. We're looking for a subdivision today so that the office building will become a little bit more marketable, we can try and find more tenants, and we can put it to a higher and better use." He added: "We're trying to endeavor to give ourselves the flexibility of having that availability to bring in a larger client that may want the entire building for themselves." When asked if that reasoning "predicated the whole thing[,]" Alba responded: "Yes." Steck's testimony described the various bulk variances required by the subdivision, and addressed the positive/negative criteria analysis required under ...


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