On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-0198-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Grall and Waugh.
Plaintiff Larry Price appeals from an order of the Law Division dismissing his action in lieu of prerogative writs.
Price challenged the Union City Zoning Board of Adjustment's grant of a "conditional use variance" for the construction of a seven-story (above-grade) apartment building in an "R" residential zone in which a "high rise" apartment building of more than three stories is a prohibited use.
Defendant GBTC Properties, L.L.C., initially sought approval for the construction of a fifty-six unit residential building with seven levels of apartments above three levels of parking, one of which was below grade level. It subsequently revised the proposal to forty-two residential units with five levels of apartments above three levels of parking, one of which would be below grade level. For the sake of clarity, the revised proposal will be referred to as a seven-story building, seven being the number of stories above grade level.
The building was to be constructed in an "R" mixed residential zone. Under existing zoning regulations in Union City, an apartment building of seven stories is not a principal use permitted in the R zone. The question before us is whether it was a "conditional use" because it constituted a "limited multi-family development," an undefined term, or a prohibited use because it constituted an "Apartment House, High Rise," which is defined 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." Section 18-3.6 of the City of Union City Zoning Ordinance.
Following a public hearing, the Board approved the project and granted a "use variance," pursuant to N.J.S.A. 40:55D-70(d)(1), for the construction of the proposed seven-story building in the R zone. Price filed an action in lieu of prerogative writs challenging that decision. On December 6, 2006, the trial judge remanded the matter to the Board because he determined that the memorializing resolution was "inarticulate" and did not adequately explain the Board's findings and their factual basis.
Rather than explaining its findings and their factual basis, however, the Board held a relatively brief discussion on remand and issued another memorializing resolution on February 22, 2007. That resolution approved the project with a "conditional use variance" under N.J.S.A. 40:55D-70(d)(3). By order dated June 29, 2007, the trial court dismissed Price's action with prejudice, concluding that the Board had the authority to consider the application as a "conditional use variance" and to "interpret and implement its zoning ordinance."
Price initially challenges the Board's determination to switch legal theories from "use variance" to "conditional use variance," arguing that the height restrictions of Section 18- 3.6 of the zoning ordinance is clearly applicable and precludes consideration of a "conditional use variance." We agree and remand the matter to the Board for further consideration not inconsistent with this opinion. We need not, therefore, reach the other issues argued on appeal.
The principal permitted multi-family use in the "R" zone consists of two-to-four family dwellings. One of the conditional uses for this zone is: "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." However, "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 ...