June 16, 2008
LARRY PRICE, PLAINTIFF-APPELLANT,
3121 CENTRAL AVENUE, LLC, AND UNION CITY ZONING BOARD OF ADJUSTMENT, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0008-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 welfare of the City of Union City.
9. The project will not have a negligible impact on the existing traffic conditions.
10. The granting of the requested variances would carry out a purpose of zoning by providing a structure which is compatible with the neighborhood and community.
11. The proposed development furthers the goals in the 1994 and 2000 Master Plan Re-Examination Report, as follows: "To continue assisting and encouraging private developers in their contemplated housing developments . . ."
12. The proposed development 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 type because the City has been developed in a mix of a variety of types."
13. The Board accepts the testimony of the applicant's planner that the proposed project carried out a purpose of zoning. Specifically, the proposed site is particularly suited for the proposed use due to the fact that [it] satisfies the lot coverage and height requirements.
14. The Board accepts the applicant's witnesses that the variances sought are not inconsistent with the intent and purpose of the master plan and zoning ordinance thereby satisfying "the enhanced quality of proof burden" that is required. The Board finds that the proposed project is not inconsistent with the intent and purpose of the master plan and zoning ordinance. The Board is of the opinion that the continuous changing conditions of the I-L zone, i.e., the majority of the properties are predominately residential, reconciles with the intent of the master plan. Also, the proposed project is consistent with the density of the surrounding properties and would not change the character of the neighborhood or would be a detriment to the zone plan.
15. As to the negative criteria, the Board sees no substantial detrimental effect on the zone plan or zoning ordinance, for the following reasons:
A. The Board sees no substantial detrimental effect on the zone plan or zoning ordinances since it does not pose a substantial interference to the surrounding properties. The Board accepted the testimony of the applicant's witnesses as credible.
B. The project will have a desirable visual environment with the construction of a new residential building.
C. The Board accepts the testimony of the applicant's traffic engineer as credible in that the project will not increase traffic in the surrounding area.
D. There will be no substantial impairment of the intent and purpose of the zoning ordinances. The project satisfies the enhanced burden of proof that is required, i.e. that the project does not impair the zone and master plan. The Board notes that the ongoing changing conditions in the area are sufficient to reconcile the proposed residential use with the master plan and the zone.
E. The Board also notes that a waiver from the RSIS onsite parking requirements is reasonable due to the fact that public transportation is readily available in the area.
Following a hearing in the prerogative writs action, Judge Charles found that the Board's resolution addressed the legal elements and the findings of fact made by the Board had substantial support in the record. Judge Charles rejected plaintiff's challenge to the Board's findings of special reasons, the enhanced quality of the proofs and the suitability of the site for the proposed mid-rise residential use.
A decision by a zoning board of adjustment may only be reversed where the board acts in an arbitrary, capricious or unreasonable manner. See Booth v. Bd. of Adjustment of Rockaway Twp., 50 N.J. 302, 306 (1967); Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 285 (1965). This is so because members of the board live in the community they serve and know the purposes behind the municipality's zoning ordinance. Masterson v. Christopher Diner,Inc., 85 N.J. Super. 267, 273 (App. Div. 1964). The burden to prove arbitrary, capricious or unreasonable action is always upon the plaintiff. Cell S. of N.J. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81-82 (2002). A reviewing court only determines whether in the granting of a variance the board followed the statutory guidelines and properly exercised its discretion. Burbridge v. Governing Bd. of Mine Hill Twp., 117 N.J. 376, 385 (1990); see also, Bressman v. Gash, 131 N.J. 517, 526-28 (1993).
A board's fact findings and conclusions are entitled to deference from the courts. Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58 (1999) ("[D]eference to the judgment of local zoning boards ordinarily is appropriate."); Menlo Park Plaza Assocs. v. Planning Bd. of Woodbridge, 316 N.J. Super. 451, 459 (App. Div. 1998). A presumption of validity is accorded governmental action. S. Burlington County N.A.A.C.P. v. Twp. of Mount Laurel, 92 N.J. 158, 305 (1983) ("[T]hose in government generally act within the powers granted to them and do so properly" and thus their actions are entitled to a presumption of validity.).
Plaintiff contends on appeal, as he did before the Law Division, that there was inadequate proof to support the grant of a d-1 use variance, and the variances granted impaired the zone plan and zoning ordinance, contrary to the mandate of N.J.S.A. 40:55D-70. He also contends that defendant did not provide special reasons supporting the grant of the variances by an enhanced quality of proof.
N.J.S.A. 40:55D-70 provides as follows:
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.
Because the proposed use is not inherently beneficial, like a school or hospital, the trial judge correctly held that defendant was required to prove to the Board that the general welfare will be served because the use is peculiarly fitted to the particular location for which the variance is sought. Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268, 279 (1967). The proofs must meet both the positive and negative criteria in the statute. Scholastic Bus Co. v. Zoning Bd. of Fair Lawn, 326 N.J. Super. 49, 56 (App. Div. 1999). The positive criterion requires that the applicant establish "special reasons" for the grant of the variance. Ibid. "The negative criteria require proof that the variance 'can be granted without substantial detriment to the public good' and that it 'will not substantially impair the intent and purpose of the zone plan and zoning ordinance.'" Sica v. Bd. of Adjustment, Twp. of Wall, 127 N.J. 152, 156 (1992).
Examining the proofs before the Board, the trial judge found that plaintiff had established special reasons and had offered an enhanced quality of proof that the variance sought was not inconsistent with the intent and purpose of the master plan and zoning ordinance. Medici v. BPR Co., 107 N.J. 1, 4, 21-23 (1987). The judge pointed out that there are many non-conforming uses among the immediate neighbors which can constitute an enhanced quality of proof that the variance would not change the character of the neighborhood or be detrimental to the zoning plan. Proof of substantial change in the character of a community which is overwhelmingly evident in Union City satisfied the enhanced quality of proof element. Saddle Brook Realty, LLC, v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 79-81 (App. Div. 2006).
The judge pointed out that the planning expert had testified that only one structure in the immediate area was industrial in nature, and only ten percent of the properties in the zone remained industrial. The surrounding area had evolved from industrial to residential to such an extent that the area now consisted "mostly of residential structures."
The judge also determined that the Board had expressly found that the subject was peculiarly fitted to the proposed use. Public transportation was available in the immediate area. The proposed residential use was close to the central district and would be an asset to the central portion of Union City. The need for newer housing, for which there was a demand, promoted the general welfare of the city. Additionally, it furthered the goals of the 1994 and 2000 master plans to encourage private developers to pursue housing development.
In reviewing the positive and negative aspects of the variance requested under N.J.S.A. 40:55D-70, the trial judge found that the Board evaluated the impact of the proposed use variance upon adjacent property. He also considered the extent to which the grant of the variance would usurp the authority of the governing body. He noted that the Board found that there was no substantial detriment to the zone plan or ordinances, that a desirable visual environment will be constructed with the new residential building, that there will be no increase in traffic in the surrounding area and that the changing conditions in the area were sufficient to reconcile the residential use with the master plan. Judge Charles found that these findings of the Board were supported by the evidence presented at the hearing.
In terms of the number of variances granted, Judge Charles found the decision in DeSimone v. Greater Englewood Housing Corp. No. 1, 56 N.J. 428, 443-44 (1970), instructive. Commenting on the DeSimone decision, Judge Charles had this to say:
There Justice Hall pointed out that under certain circumstances when a board grants a d-1 use variance for a project whose proposed bulk dimensions clearly do not fit the applicable bulk requirements, thereby necessitating wholesale bulk variances, said bulk variance applications may, under the appropriate circumstances, be deemed subsumed within the grant of the d-1 use variance for the project itself, thus reducing the standard of proof and eliminating the requirement of separate evaluation of each variance application.
Judge Charles found that the proofs, along with the facts and the circumstances presented here, satisfied the requirements for the grant of the other variances as subsumed within the d-1 use variance.
The Board's findings and conclusions have substantial support in the record before us. We find no error in the conclusions reached by the Law Division judge. While we acknowledge that zoning changes should ordinarily be by ordinance and that variances be the exception, we recognize that the zone in question has become a de facto residential area. Union City, with the density of its population confined to a very small geographical area, has great housing needs which the Board acknowledged. Light manufacturing that may at one time in the past have existed, is no longer prevalent. We are satisfied that the decision of the Board to grant the variance was not arbitrary, capricious or unreasonable.
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