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Price v. Maximus Real Estate Fund

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 28, 2008

LARRY PRICE, PLAINTIFF-APPELLANT,
v.
MAXIMUS REAL ESTATE FUND, LLC AND ZONING BOARD OF ADJUSTMENT OF THE CITY OF UNION CITY, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1130-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 27, 2007

Before Judges Coburn, Fuentes and Chambers.

Plaintiff, Larry Price, appeals from the decision of the Law Division upholding the action of defendant, the Zoning Board of Adjustment of the City of Union City, granting the application of defendant, Maximus Real Estate Fund, LLC (Maximus) to build a high rise residential building. In an action in lieu of prerogative writs, plaintiff argued that the Board's decision was arbitrary and capricious, because Maximus failed to present sufficient evidence to justify deviating from the applicable zoning standards. We disagree and affirm.

The property in question is located on the southern side of 44th Street, between Park and Hudson Avenues. This area is zoned as R-MF, Multi Family Residential. The property currently contains a pre-existing, nonconforming two-story industrial structure. The Board described Maximus's proposal as follows: The applicant submitted drawings prepared by Minervini-Vandermark, dated November 3, 2005 depicting a proposed nine (9) story, eighty (80) unit residential building. The applicant intends to demolish the existing two (2) story industrial building. The proposed building consists of eight (8) residential floors over one grade and one below grade level of parking. The applicant proposes ten (10) units per floor. The units will consist of sixteen (16) one bedroom units, fifty-six (56) two bedroom units and eight (8) three bedroom units. A ten (10) story, ninety-six (96) unit residential building was previously submitted by the applicant. Testimony was taken on that project, however, the Board did not consider the ninety-six (96) unit proposal due to a procedural problem that arose during the testimony. After hearing the Board's concerns about over intensification of the use of the property the applicant chose to submit revised plans reducing the project to the proposed eighty (80) units.

The proposed building required four variances: a variance for floor area ratio, a density variance, and two bulk variances for minimum lot size and maximum lot coverage. Planner Michael Kauker testified as an expert witness on behalf of Maximus. He indicated that the proposed structure, although requiring the enumerated variances, actually represented a significantly less intense use of land per acre than other nearby developments.

According to Kauker, the proposed building promoted the following purposes of zoning as outlined in N.J.S.A. 40:55D-2: (a) to promote the general welfare, by redeveloping the property and replacing a non-conforming use; (g) to provide sufficient space and appropriate locations for residential type uses, by providing housing for Union City residents; and (i) to promote a desirable visual environment, by placing a more aesthetically pleasing building on the property. There would also be no substantial detriment to the public good, because the building would improve the appearance of the area, without increasing motor vehicle traffic beyond what the area could accommodate. Joseph Staigar, a traffic consultant retained by Maximus to assess the project's impact on local traffic, corroborated the planner's opinion. Staigar, testified that there would be no substantial detriment to the levels of service in the neighboring roads and intersections, and traffic would flow well out of the building's driveway. His analysis took into consideration the current traffic, projected growth rate, and increased traffic from the proposed building and two other neighboring buildings.

In the resolution approving the project and granting the required variances, the Board explained in detail the factual and legal basis for its decision. Specifically:

The Board finds and determines that the granting of the variances will have no detrimental effect on the community or surrounding neighborhood, and the Board further finds and determines that the applicant has established their burden of proof for the granting of the variances and have shown that they are entitled to the variances in accordance with the standards established by the Municipal Land Use Law.

The Board makes this finding and determination based on the evidence introduced by the applicant, in light of the overall size of the property and the configuration of the lot. The Board finds that the use variance and the bulk variance can be granted without detriment to the surrounding neighborhood. In addition, the Board has taken into account the character of the neighborhood and finds that there are no valid health or safety reasons for not permitting these variances.

The R-MF zone conditionally permits high rise dwellings. The proposed building would be in the public interest without any substantial detrimental effects to the community. The demolish of the existing industrial building will eliminate a non-conforming use and bring the property more in conformity with the Master Plan with residential development. The project promotes the general welfare by eliminating a nonconforming use. The project will also have a desirable visual environment by eliminating a nonconforming use and constructing a new residential building. The proposed building would be a visual improvement to the neighborhood because of the enhanced aesthetics of the quality of construction.

The project complements [sic] the goals of the Master Plan. The immediate area includes mixed use structures including medium and high rise buildings. Existing buildings in the surrounding area are compatible with the project. The proposed development would conform to the character of the neighborhood.

The density of the proposed development is consistent with the density of other multi-family dwellings in the area. There is a demand in Union City for newer housing, which further promotes the general welfare of the City of Union City.

Against this backdrop, the matter came before the Law Division in an action in lieu of prerogative writs filed by plaintiff. In this suit, plaintiff argued that the expert testimony offered by defendant was inadequate to satisfy the burden of proving a right to the relief sought before the Board. Judge Antonin rejected plaintiff's arguments in a memorandum of opinion dated November 17, 2006. We concur with Judge Antonin's findings and conclusions of law, and thus affirm for the reasons expressed therein.

Affirmed.

20080428

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