On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-5396-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Fuentes and Grall.
Defendant 13-14 Union, LLC ("Union") is the owner of two adjoining lots in Union City on which it wants to erect two seven story apartment buildings. It applied to the Union City Zoning Board of Adjustment ("Board") for numerous variances, including a use variance pursuant to N.J.S.A. 40:55D-70(d)(1), which concerns variances for a "use or principle structure in a district restricted against such use or principal structure[.]" The Board determined that the application could be approved under Union City's zoning ordinance as a conditional use pursuant to N.J.S.A. 40:55D-70(d)(3), but its resolution also stated that the application met the criteria for approval under subsection (d)(1). The Board also approved all of the related variances requested by Union.
Although the application was unopposed before the Board, plaintiff filed a timely action in lieu of prerogative writs in the Law Division challenging the Board's decision as arbitrary. The Law Division judge ruled that the application was governed by subsection (d)(3) and approved the Board's decision. This appeal ensued.
We conclude, as Union's own expert believed, that this application was governed by subsection (d)(1) because the use in question is not a conditional use in the zone in question. We also conclude that Union failed to provide the requisite evidence for a (d)(1) use variance. Consequently, the Board erred in approving the application, and the trial court's judgment approving the Board's action must be reversed.
The adjacent sites chosen for the proposed seven story buildings are in the "R" residential zone. Union submitted no evidence indicating that unless these projects were erected on these particular sites, the general welfare inherent in providing multi-family housing could not be attained in Union City.
The "principal" permitted multi-family uses in that the "R" zone are "one, two, and four family dwellings." Included among the conditional uses for this zone are:
Limited multi-family developments: (See Note 21). Subject to Site Plan Approval by the Planning Board.
There is no specific definition in the zoning ordinance of "Limited multi-family developments." But "Note 21" of the zoning ordinance provides that limited multi-family developments should meet the following requirements:
(1) A sufficient land aggregate can be assembled to provide a site of at least 10,000 square feet.
(2) Such multi-family development would be compatible with the neighborhood in which it is contemplated, to be determined during the planning ...