May 21, 2008
LARRY PRICE, PLAINTIFF-APPELLANT,
13-14 UNION, LLC, AND UNION CITY ZONING BOARD OF ADJUSTMENT, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 6, 2008
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 board's review for site plan approval.
(3) The requirements for garden apartment developments, as contained in Note 12, shall be met by the applicant.
Section "(6)" of "Note 12" provides that "[n]o garden apartment building shall exceed a height of three and one-half stories or 50 feet . . . ."
Section 18-3.18 of Union City's zoning law defines a multi-family dwelling, designated "Dwelling, Multiple," as a "building or portion thereof containing more than two dwellings units." Section 18-3.5 defines "Apartment House, Garden-Type" as a "residential structure of not more than three stories containing three or more dwelling units." Section 18-3.6 defines "Apartment House, High Rise" as a "residential structure of more than three stories, containing three or more dwelling units and containing a heating plant which supplies heat to all tenants."
Because of the position of Union's professional planner, the Board said that it would apply the enhanced burden of proof standard as espoused in Medici v. BPR Company, 107 N.J. 1 (1987). In sum, the applicant not only needs to establish the positive and negative criteria, the applicant has the enhanced burden to demonstrate there would be no substantial impairment of the intent and purpose of the zone plan. In essence, the applicant must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district.
The Board's resolutions included the following findings:
[T]he use variance and the bulk variance can be granted without detriment to the surrounding neighborhood.
[T]here are no valid health or safety reasons for not permitting these variances.
[T]he project promotes the general welfare by creating a desirable visual environment with the construction of 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 immediate area includes buildings of similar height and density. Thus, the existing buildings in the surrounding area are compatible with the project. The proposed development would conform to the character of the neighborhood.
[T]here is a demand in Union City for newer housing which further promotes the general welfare of the City of Union City.
[The project] furthers the expectations of the Land Use Element of the 1975 Master Plan in its statements that: "There is a differentiation of residential uses by density rather than by structural types because the City has been developed in a mix of a variety of types."
[T]he proposed site is particularly suited for the proposed use due to its size.
We use the same standard of review required of the trial court. N.Y. SMSA v. Bd. of Adjustment, 370 N.J. Super. 319, 331 (App. Div. 2004). Although we begin with a presumption of validity, Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005), and with the understanding that we are not to substitute our judgment on factual matters for that of the Board, Fallone Prop. v. Bethlehem Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004), we are obliged to resolve the pertinent legal issues, Burbridge v. Governing Bd. of Mine Hill Twp., 117 N.J. 376, 385 (1990).
In this case, the first legal issue to be determined under the zoning ordinance is the zoning category of these buildings; i.e., are they "limited multi-family developments" or do they come within the category "Apartment House, High Rise." The trial court ruled that the buildings were not high rise apartment houses because they did not contain "a heating plant which supplies heat to all tenants." On that basis, the court concluded that the use variance needed was only a (d)(3) conditional use variance.
We note that neither the evidence nor the findings of the Board indicate how these buildings were to be heated. But, that factual issue is not relevant because we are satisfied that the phrase "containing a heating plant which supplies heat to all tenants" is superfluous or meaningless in this context.
Of course, the interpretation of a zoning ordinance is a legal issue, ultimately resolvable by courts. Schack v. Trimble, 48 N.J. Super. 45, 57 (App. Div. 1957), aff'd, 28 N.J. 40 (1958) (citing Honingfeld v. Byrnes, 14 N.J. 600 (1954)). The ordinance should be read sensibly, and not literally, to achieve its intended result. In re Expungement of W.S., 367 N.J. Super. 307, 311 (App. Div. 2004) (citations omitted). To achieve that goal, we may expand or limit words "'according to the manifest reason and obvious purpose of the law.'" New Capitol Bar & Grill Corp. v. Div. of Employment Sec., 25 N.J. 155, 160 (1957) (quoting Alexander v. N.J. Power & Light Co., 21 N.J. 373, 378 (1956)). Although legislative language "must not, if reasonably avoidable, be found to be inoperative, superfluous or meaningless," Franklin Tower One, L.L.C. v. N.M., 157 N.J. 602, 613 (1999) (citations and quotation omitted), the "deletion and disregard of language is justifiable to fulfill the legislative intent," County of Monmouth v. Wissell, 68 N.J. 35, 43 (1975).
Applying those principles, we have no doubt that the ordinance's reference to the method of heating a building is superfluous in the context of zoning, where the focus is on the nature and configuration of a building and its impact on the neighborhood. The impact of a building on a neighborhood has nothing whatsoever to do with the method selected for providing heat. Rather, it has to do with the size and shape of the building, the nature of the land on which it is placed, and the relationship with other buildings in the neighborhood. Therefore, we conclude that under the Union City zoning ordinance the proposed buildings are high rise apartment houses because they exceed the height allowed for garden apartments.
Our conclusion is fortified by the use of the word "limited" before "multi-family developments" in the section of the ordinance indicating the conditional uses allowed in an "R" zone. That word, plus the zoning notes referenced, clearly indicate that although multi-family dwellings consisting of more than four units are a conditional use in this zone, high rise apartment houses are not.
Since the proposed use is prohibited in the "R" zone, the case is governed by Medici v. BPR, Co., 107 N.J. 1 (1987). Union did not attempt to prove and does not contend that its proposal is a use that inherently serves the public good. Id. at 12-13; Fobe Assoc. v. Mayor and Council of Demarest, 74 N.J. 519, 532-38 (1977) (leaving for the future the issue of whether multi-family dwellings inherently serve the general welfare) overruled in part by S. Burlington County NAACP v. Twp. of Mt. Laurel, 92 N.J. 158 (1983). Nor did it claim hardship. Medici, supra, 107 at 4 n.1. Rather, it contended that the use promoted the general welfare "because the proposed site is particularly suitable for the proposed use." Id. at 4.
In Fobe, supra, 74 N.J. at 534-35, the Court further explained what "particularly suitable" meant in the context of a (d)(1) variance, stating that there must be proof and findings to the effect "that unless the [applicant's] project is erected at the particular site for which the variance is sought the general welfare inherent in provision of more multi-family housing will not be attained." In other words, in these cases the "particular site . . . must be the location . . . to promote the general welfare." Id. at 534 (quotation omitted and emphasis in original). Obviously, if other locations are available for multi-family construction then the proposed site is not a necessary one. Since Union offered no proof on this point, the Board was obliged to deny its application.
The judgment of the Law Division is reversed and the Board's grant of the variances is vacated.
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