August 1, 2008
LARRY PRICE, PLAINTIFF-APPELLANT,
JOSE ROCHA AND UNION CITY ZONING BOARD OF ADJUSTMENT, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5829-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 24, 2008
Before Judges Cuff and Fuentes.
Plaintiff Larry Price appeals from the order of the Law Division dismissing his action in lieu of prerogative writs.
Plaintiff challenged the decision of defendant, the Union City Zoning Board of Adjustment ("Board"), granting defendant Jose Rocha's application to construct a high rise building at the corner of 7th Street and New York Avenue in Union City. We reverse.
The current proposal is the second development application that Rocha has presented for this site. The property is located in Union City's R Zone. 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."
Rocha presented his first application to the Board on February 10, 2005. He sought variances for the construction of an eighteen-story high-rise apartment building, containing eighty-four two-bedroom units and a 101-space enclosed parking garage. Price was at the hearing and objected. The Board granted the application along with the corresponding variances.
Price filed an action in lieu of prerogative writs challenging the approval. By order dated February 14, 2006, the trial court reversed the Board's decision granting the variances and declared the resolution memorializing that decision null and void. In so doing, the trial court gave the following description of the nature and scope of the proposed project:
(1) The assembled lots that comprised the application contained 10,000 sq. ft., but the minimum sized lot for the proposed project was 20,000 sq. ft. Thus, a C-type variance was needed for lot area.
(2) High-rise dwelling unit density was 110 units per acre and the application contemplated 366.18 units per acre, requiring a D-type variance.
(3) Building coverage permitted was 40% in the zone, but the application contemplated 90.25%, requiring a C-type variance.
(4) Set back requirements were 10 feet, but the application provided no set back so as to maximize the size of the 84 units.
(5) Building length was limited to 74 feet; the application contemplated 95 feet.
(6) The height of the proposed 18-story building, 187 and 1/2 feet, was greater than the permitted 3 1/2 stories or 50 feet, requiring a D-type variance.
(7) Parking spaces provided were less than the required 126 spaces necessitating a variance for parking.
(8) For garden apartments, the ordinance allowed a maximum density of thirty (30) units/acre in the "R" zone, which would allow Rocha to only build eight (8) units on the proposed site, instead of the eighty-four units intended.
Addressing the applicable legal standards referred to as the "positive and negative criteria," Rocha's experts testified that: (1) the project would add to Union City's housing stock; (2) the project would beautify the neighborhood and increase property tax revenues; (3) other high-rise buildings were likely to be built in the area in the near future; (4) the project would not impair Union City's master plan; and (5) the project would eliminate an existing nonconforming use (vacant industrial buildings).
In reversing the grant of variances, the trial court held that defendant had failed to establish "special reasons" for the grant of the "d(1)" prohibited use variance under the Municipal Land Use Law ("MLUL").*fn1 The court noted that increasing the City's housing stock itself was not a "special reason," since the project was not for public housing or housing otherwise serving the public interest. Further, the elimination of a pre-existing nonconforming use also did not constitute a sufficient "special reason."
The court reasoned that such a goal could just as easily be accomplished by a project not requiring the multitude of variances requested in Rocha's application. The elimination of this single nonconforming use, in an area principally surrounded by nonconforming uses, would not have a sufficient impact on the character of the neighborhood.
The court also concluded that the project would impair the City's master plan, "otherwise the multitude of variances required would not have all been necessary." Finally, the trial court rejected the Board's inclusion of aesthetics as a "special reason," stating that "aesthetics have never been held to provide the special reasons for a variance when the application seeks approval of a nonconforming use." The trial court denied defendant's motion for reconsideration; no appeal was taken from this order.
Following this decision by the Law Division, Rocha acquired a second 10,000-square-foot lot adjacent to the initial 10,000-square-foot lot. Thereafter, Rocha filed a second application seeking to develop the newly augmented 20,000-square-foot site at New York Avenue and 7th Street. This second application is the subject of the present appeal.
Rocha presented the second application before the Board on September 7, 2006. Price again appeared as an objector, this time arguing that principles of res judicata mandated the rejection of Rocha's second application. According to Price, the amended project was substantially identical to the project previously rejected by the Law Division. The Board disagreed, emphasizing that the second application involved a combined lot of 20,000 square feet; this was twice the size of the lot in the first application.
The Board unanimously approved Rocha's second application, together with the required variances. In its October 12, 2006, memorializing resolution the Board included the following description of the nature and scope of this project.
5. The Applicant wishes to demolish existing buildings and construct a fourteen (14) story, one hundred twenty-nine (129) unit multifamily building on the premises commonly known as 608-614 New York Avenue and 309-315 7th Street, Union City, New Jersey . . . .
6. The property is located in the R Zone and high rise development is not permitted in the R Zone such that a use variance is required.
7. A minimum lot area of 1,600 square feet is required. The site has an area of 20,000 square feet which is conforming.
8. A front yard setback of ten (10) feet is required. The Applicant proposes two (2) feet, which is non-conforming and requires a variance.
9. A combined side yard setback of twelve (12) feet is required. The Applicant proposes seven (7) feet, which is non-conforming and requires a variance.
10. One side yard setback of nine (9) feet is required. The Applicant proposes five (5) feet, which is non-conforming and requires a variance.
11. A rear yard setback of twenty-five (25) feet is required. The Applicant proposes five (5) feet, which is non-conforming and requires a variance.
12. A maximum density of 30 units per acre is allowed. The 20,000 square feet would allow for the development of fourteen (14) units, which does not conform and a variance is required.
13. A maximum lot coverage, by buildings, of 60% is allowed. The proposed building covers 89.75% of the site, which does not conform and a variance is required.
14. A maximum building height of 3-1/2 stories and 50 feet is permitted. The proposed building will have fourteen (14) stories and a height of 158"-7' [sic] feet, which does not conform and a variance is required.
15. The Residential Site Improvement Standards (RSIS) requires the provision of parking based on a ratio of 0.8 for each one bedroom unit and 1.3 parking spaces for each two bedroom unit. The 10 one bedroom and 119 two bedroom units would require the provision of 168 parking spaces. The site plan provides for a provision of 170 parking spaces in a multi-level parking garage, which is conforming to the RSIS.
Price once again sought judicial review of the Board's actions. This time, Price argued that the Board was precluded from considering Rocha's second application under the doctrine of res judicata. The trial court rejected this argument. Price now appeals, arguing that the court erred in failing to apply res judicata to bar Rocha's second application. He also argues that even if this legal doctrine is not applicable, Rocha failed to present special reasons justifying the relief requested. Thus, the decision of the Board granting the application was arbitrary and capricious, and inconsistent with established principles of zoning law.
We are satisfied that the Board's actions approving this project cannot stand, because the applicant did not meet his burden to establish special reasons justifying the extraordinary relief requested. As such, we need not reach the argument based on the doctrine of res judicata.
Here, the principal permitted 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 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 18-3.5 defines "Apartment House, Garden-Type" as a "residential structure of not more than three stories containing three or more dwelling units."
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). 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). Clearly, however, the interpretation of a zoning ordinance is a legal issue, ultimately resolvable by courts. N.Y. SMSA, supra, 370 N.J. Super. at 331.
An ordinance should generally 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). However, "[w]hen the words in a statute are clear, and their literal application is compatible with the overall legislative design, the interpretive process is satisfied by enforcement of the plain meaning of the words." Jones v. Naser City Transp. Corp., 388 N.J. Super. 513, 514 (App. Div. 2006).
Because the project is prohibited in the R Zone, we will use the standards articulated by the Supreme Court in Medici v. BPR Co., 107 N.J. 1 (1987). There is nothing in the record before us that supports the notion that this project qualifies as an inherently beneficial use, serving the public good. As such, "the applicant must prove and the board must specifically find that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use." Id. at 4.
The record developed before the Board is insufficient to meet this standard. In fact, it is clear that such a project would be inconsistent with the City's zoning scheme. The Board's actions here are thus an attempt to rezone the area through the granting of variances, a practice particularly disfavored by our courts. Saddle Brook Realty, L.L.C. v. Twp. of Saddle Brook Zoning Bd. of Adj., 388 N.J. Super. 67, 75 (App. Div. 2006) (quoting Vidal v. Lisanti Foods, Inc., 292 N.J. Super. 555, 561 (App. Div. 1996)).