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Price v. 3121 Central Avenue

June 16, 2008


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0008-07.

Per curiam.


Argued May 7, 2008

Before Judges Sapp-Peterson, Messano and Newman.

Plaintiff Larry Price filed a complaint in lieu of prerogative writs challenging the Union City Zoning Board of Adjustment's (the Board) grant of an application for zoning variances as unreasonable, arbitrary, and capricious. Plaintiff argues that the developer defendant, 3121 Central Avenue, LLC, failed to meet its burden to establish the positive and negative statutory criteria for a d-1 variance and contends that the variances granted substantially impair the zone plan and zoning ordinance. The trial court found that the Board's action in granting the variances and approving the project was not arbitrary or capricious or unreasonable. Plaintiff appeals. We reject plaintiff's contentions and affirm.

Defendant filed an application with the Board regarding property located at 3121 Central Avenue and designated as Lots 1 and 2 of Block 174 on the tax map of the City of Union City. Defendant sought a d-1 use variance and any necessary variances to exceed lot area, lot coverage, density, floor area, and height requirements of the Union City Zoning ordinance pursuant to N.J.S.A. 40:55D-70.

A non-conforming mixed-use building consisting of seven residential and two commercial units was located at the northwestern corner of Central Avenue and Sip Street in Union City. Defendant proposed to construct in its place a multifamily residential building which was a non-permitted use in Union City's I-L (Industrial-Light Impact) Zone. The proposed four-story building would include twelve apartments, three floors of three two-bedroom apartments and one one-bedroom apartment each, and a ground floor with thirteen parking spaces. The project would have an area of 5,944 square feet with eighty-two percent coverage, and a setback of two feet from Central Avenue and Sip Street. The development would conform with minimum lot area, density, setback, and parking requirements or lack thereof for the I-L Zone, but exceeded the relevant standards for mid-rise developments set forth in Note 12 of the Union City Zoning Ordinance. It would exceed maximum lot coverage and story requirements for both the I-L Zone and a mid-rise multifamily development.

At a hearing before the Board, defendant presented an architectural expert, Frank Minervini, who had developed the site plan for the proposed development and who testified to the conditions of the surrounding neighborhood as well as to the plan itself. Craig Peregoy, a traffic engineer, testified that traffic at nearby intersections currently operated at respectable levels and that the impact of the development on traffic levels would be negligible or possibly positive, given that the mid-rise residential building would likely generate less traffic than the current mixed commercial and residential use.

Michael Kauker, defendant's professional planning expert, testified to the changing character of the neighborhood since the adoption of the zoning ordinance. What had been zoned as an industrial area had developed into a primarily mixed-use residential and commercial area. Ninety percent of the zone was now residential. Light industry had left the region. The consistency of the proposed development with the surrounding area was obvious.

The Board adopted a resolution granting defendant's application and concluding that "special reasons" existed for the granting of defendant's application and that defendant had demonstrated by the requisite "enhanced quality of proof" that the d-1 variance was not inconsistent with the intent and purpose of the zone plan or zoning ordinance. In accepting the testimony of defendant's expert witnesses, the Board made the following pertinent findings of fact and conclusions of law:

5. The I-L zone does not permit a mid rise residential building. The Board notes although the property is in an I-L zone, the majority of the properties in the area are residential. As such, the proposed residential building will bring the property more in conformity with the Master Plan with residential development. The project will also have a desirable visual environment by 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.

6. The project satisfies the positive criteria of the Municipal Land Use Law. Specifically, purpose "A" regarding the public and general welfare. The applicant is redeveloping [an] existing site. Union City is located in the planning one area of the State's redevelopment policy and is a designated growth area. The project also promotes purposes "C" and "I" of the prospective criteria of the Municipal Land Use Law.

7. The project will not have a detrimental impact as to light, air and open space on the surrounding properties.

8. The Board also notes that there is a demand in Union City for newer housing, which further promotes the general ...

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