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Price v. Union City Zoning Board of Adjustment


August 1, 2008


On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5403-05.

Per curiam.


Argued June 24, 2008

Before Judges Cuff and Fuentes.

Plaintiff Larry Price appeals from the order of the Law Division upholding the decision of defendant Union City Zoning Board of Adjustment to grant the application of defendant 414- 416 13th Street, LLC ("13th Street"), to construct a multi- family apartment house on a site currently zoned to limit development to a maximum of four family dwellings. We reverse.

13th Street's proposed apartment house consists of siX residential stories with five two-bedroom units on each floor.

Beneath the residential levels, 13th Street proposes two parking levels, one above grade and one below.

The property is located in Union City's "R Zone" and currently contains a nonconforming use in the form of a commercial bakery. The principal residential uses allowed by right in the R Zone are "one, two, and four family dwellings" and row houses for one family use. Conditional residential uses for this zone are "public housing developments for senior citizens" and "limited multi-family developments."

Union City's zoning ordinance does not define "limited multi-family developments." The ordinance does provide, however, that:

Note 21. Limited multi-family developments shall be permitted subject to site plan approval by the planning board and provided that:

(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.

[(Emphasis added).]

"Garden apartment developments" are one of only two types of apartment house envisioned by the Union City zoning ordinance:

18-3.5 Apartment House, Garden-Type. A residential structure of not more than three stories containing three or more dwelling units.

18-3.6 Apartment House, High Rise. 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.

Note 12 of the zoning ordinance provides the following criteria for "garden apartment developments," relevant to this case:

(1) There shall be a minimum site of 10,000 square feet for each such garden apartment development.

(2) The number of dwelling units per net residential acre or fraction thereof shall not exceed 30 in three and one-half story structures and 25 in two story structures.

(3) The maximum percentage of any lot that may be covered by all structures shall not exceed 40 percent.

(4) There shall be provided a perimeter setback of at least ten feet from the right of way of a street on which a building fronts. Surface parking facilities, as permitted in this chapter, may take place within the perimeter setback provided such parking does not extend within three feet of a property line.

(5) No principal building shall exceed a length of 75 feet.

(6) No garden apartment building shall exceed a height of three and one-half stories or 50 feet, and no accessory structure shall exceed a height of one story or 15 feet.

(7) On site parking shall be provided at the following ratios: . . . 2-bedroom units - 1.5 parking spaces . . . .

(8) There shall be provided at least one loading space, as defined in this chapter for each development.

Note 13 of the ordinance deals with "high-rise apartment buildings:" a prohibited use in the R Zone. With respect to such high-rise buildings, the ordinance provides that "[n]o high-rise apartment building shall exceed a height of 22 stories or 230 feet." As noted above, "high-rise apartment buildings" are not permitted in the R Zone, either by right or as a conditional use.

On July 13, 2005, 13th Street appeared before defendant Zoning Board seeking site plan approval for its apartment house project. In conjunction with its application, 13th Street sought both "c" and "d" variances under the Municipal Land Use Law ("MLUL")*fn1 for "height, density, lot coverage, parking space, setbacks, lot area, [and] building use." The Board unanimously granted 13th Street's application, memorializing its decision in a resolution dated September 8, 2005.

In the September 8, 2005 resolution, the Board acknowledged the following details of 13th Street's application.

5. The Applicant wishes to construct a multifamily building, specifically a seven (7) story, thirty (30) unit multifamily building, on the premises commonly known as 414-416 13th Street, Union City, New Jersey . .

. . Specifically, the project will consist of thirty (3[0]) two bedroom apartments over one below grade and one grade level of parking.

6. The property is located in the R, Mixed Zone. Mid-rise multi-family development is a permitted use in the R Zone, subject to the conditions of Note 12 of the Union City Zoning Ordinance. Since the conditions of Note 12 are not satisfied a use variance is required. The application will be reviewed against the standards of the R Zone as well as the standards of Note 12 for mid rise development where applicable.

7. A minimum lot area of 10,000 square feet is required for mid-rise development. The site has an area of 7,500 square feet, which does not conform and a variance is required. A minimum lot area of 5,000 square feet is required in the R Zone.

8. A maximum density of 30 units per acre is allowed for mid rise development. The 7,500 square foot site would allow the development of 5 units. The proposed 30 units do not conform and a variance is required.

8. [sic] A maximum lot coverage, by buildings, of 40% is allowed for mid rise development. The proposed multifamily building will cover 86% of the site, which does not conform and a variance is required. The R Zone allows coverage of 60%.

9. A front setback of 10 feet is required. The proposed building will have a three (3) foot setback from 13th Street, which does not conform. The R Zone also requires a rear yard of 20 feet and side yards of 3 and 9 feet. The proposed building is set back three (3) feet from the rear and side lot lines, which does not conform.

10. A maximum building height of 3 stories and 40 feet is allowed in the R Zone. The proposed seven (7) story building will have a maximum height of 70 feet, which does not conform. Note 12 allows a height of 3.5 stories and 50 feet for mid rise multi family development.

11. The Residential Site Improvement Standards requires the provision of 2 parking spaces for each two bedroom unit. The proposed thirty (30) two bedroom units would require the provision of 60 parking spaces. The site plan provides 47 parking spaces, which does not conform to the "RSIS" standards and a variance is required.

Based on the expert testimony of 13th Street's professional planner and traffic engineer, the Board determined that "special reasons exist for the relief requested by Applicant and can be granted without substantially impacting on the public good and without substantially impairing the intent and purpose of the Zone Plan and Master Plan." Specifically, the Board found that granting the variances would further the purposes of zoning because the project will remove a nonconforming use and the proposed use would be in character with the neighborhood and Master Plan. Based on the traffic and parking testimony, the Board further found that the proposed apartment house would not be a substantial detriment to the public.

Plaintiff, having objected to 13th Street's application before the Zoning Board, filed an action in lieu of prerogative writs on October 28, 2005. He argued that 13th Street's failure to abide by the ordinance's "garden apartment development" standards required the Zoning Board to review defendant's application as being for a "d(1)" prohibited use variance, and not for a "d(3)" conditional use variance. In a telephonic oral decision, the trial court dismissed plaintiff's complaint and upheld the Board's grant of 13th Street's requested variances.

In rejecting plaintiff's argument that 13th Street's project is a thinly veiled high-rise apartment building, the trial court noted that defendant's application was for a "limited multi-family development." The court further noted that:

Although a limited multi-family development is a conditionally permitted use in the R-Zone, it is not a defined term in the definition section of the zoning ordinance . . . nor are "limited," or "multi-family," or "development," or "limited multi-family" defined terms.

It is well settled that, under N.J.S.A. 40:55D-70(b), a Zoning Board of Adjustment has the power and jurisdiction to interpret and implement its zoning ordinance. Thus, it is clear in the instant case that the defendant Zoning Board had the authority to interpret the term limited multi-family development. The plaintiff has not identified any definitional or other provision in the ordinance which compelled the defendant Zoning Board to deem the structure a high rise as opposed to the mid-rise characterization adopted by the Board, which is also an undefined term.

Indeed, note 13 is probative of the issue and supportive of the Board's decision not to deem the structure a high rise. Clearly, a major definitional component of a high rise is its height or number of stories. Note 13, entitled High Rise Apartment Buildings, allows up to 22 stories. Since the seven-story structure involved in the subject application does not come close to that, the defendant Board's decision to view the project as a permitted conditional use as opposed to a prohibited high rise use was well within the Board's legal authority and not legally erroneous.

We use the same standard of review required of the trial court. N.Y. SMSA v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). Although we begin with a presumption of validity, Jock v. Zoning Bd. of Adj. of Wall, 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 Props. v. Bethlehem Twp. 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, 117 N.J. 376, 385 (1990).

We are satisfied that the trial court erred in upholding the Board's interpretation of the ordinance. Under the Union City zoning ordinance, the proposed building is a high rise apartment house because it exceeds the height allowed for garden apartments. As we held in Price v. 13-14 Union, L.L.C., No. A- 6490-06 (App. Div. May 21, 2008) (slip op. at 8):

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.

We thus reverse substantially for the reasons expressed in Price, supra.


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