August 8, 2008
JAMES D. BUTLER, PATRICIA L. BUTLER, MARVIN GLAZERMAN, WENDY J. PARMET, JOHN J. HALLANAN, JR., JOHN J. HALLANAN, III, ALEXANDER M. SCHKRUTZ, ROBIN SCHKRUTZ, ARTHUR ZIGMAN, ROSEMARY ZIGMAN, LOWER GIFFORD AVENUE BLOCK ASSOCIATION, CHARLENE BURKE, PRESIDENT, AND WEST BERGEN/LINCOLN PARK NEIGHBORHOOD COALITION, PLAINTIFFS-APPELLANTS,
JERSEY CITY ZONING BOARD OF ADJUSTMENT, BARBARA NETCHERT, DIRECTOR, DEPARTMENT OF HOUSING, ECONOMIC DEVELOPMENT AND COMMERCE AND ZONING OFFICER, CITY OF JERSEY CITY, ANTHONY LAMBIASE, DIRECTOR, DIVISION OF ZONING, CITY OF JERSEY CITY AND DJM GROUP, L.L.C., DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1713-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 4, 2008
Before Judges Lisa and Simonelli.
Plaintiffs filed an action in lieu of prerogative writs challenging the decision of defendant Jersey City Zoning Board of Adjustment (Board) granting two variances to defendant DJM Group LLC (DJM). The trial court affirmed the Board's decision. We affirm.
DJM purchased a vacant lot located at 91 Gifford Avenue, Jersey City (the lot). The lot is slightly larger than the standard 25 x 100 foot (2500 square feet) lot, and was located in the R-1 zone at the time of DJM's purchase. A two-family home is permitted in the zone. DJM submitted a site plan and a building permit application to construct a two-family home (the proposed home). No variances were required. The zoning officer approved the site plan on November 16, 2006, and on December 19, 2006, the Jersey City Construction Office issued a building permit.
DJM began construction on December 21, 2006. On January 9, 2007, plaintiff Charlene Burke (Burke), President of the West Bergen/Lincoln Park Neighborhood Coalition, sent a letter*fn1 complaining that the building was going to be closer to the street than most of the other homes on the block; and that the building's design features would not be consistent with the design of many of the older homes in the neighborhood, which were a mix of late-nineteenth to early twentieth century Queen Annes and Colonial Revivals that included the "character defining features" of full length porches, prominent roofs, an absence of uninterrupted wall expanses, attached garages and large mature trees in the front yards. The neighbors wanted the proposed home to meet certain design standards consistent with the older homes.
In an attempt to appease the neighbors, DJM voluntarily agreed to stop construction and to submit a new application. DJM would construct the same house, but would include certain design standards and move the house back to match the predominant front yard setbacks*fn2 of the houses on either side. Moving the house back would result in a larger front yard setback and a smaller rear yard setback. As such, variances were required for the new setbacks. DJM applied for the variances, but reserved its rights based upon the approval and permit it had already obtained. City officials encouraged DJM to move quickly with its new application because the zoning ordinance governing the lot was being amended.
At a special hearing on February 12, 2007, DJM's expert architect/planner opined that moving the house back and increasing the front yard setback would benefit the neighborhood and would present a better zoning alternative.*fn3 The expert also testified about the lack of detriment to granting the variances, and addressed the design changes DJM agreed to make.
Members of the public did not object to the variances.*fn4
Rather, they asked the Board to review the project for compliance with design standards contained in the ordinance, claiming the project failed to meet these standards. They also argued that the zoning officer failed to consider the design standards prior to approving the site plan.
The city's supervising planner testified that the zoning officer was not required to consider residential design standards; that the zoning officer had not relied on the design standards for the previous five years; and that the setbacks approved by the zoning officer were valid and DJM was not required to apply for a variance or site plan approval. The supervising planner noted that DJM voluntarily agreed to certain design changes; and that the Board had no authority to stop the application, because it conformed to the bulk standards.
The Board granted the variances on February 12, 2007, without requiring further design changes. The Board found that the variances would be "consistent with the prevailing front yard setback on Gifford Avenue and provide greater light, air, open space and compatibility with neighboring properties in the front yard than the front yard setback previously provided in [DJM's] building plans, and the benefits of the variances substantially outweigh any detriment." The Board also recognized DJM's acquiescence in changes to the color of the front brick and masonry; the design of the front door; the width of the front garage door; the landscaping; and the shape of the window above the front door. The Board also agreed to waive further design requirements for construction of the house, "except as stated on the record."
On February 13, 2007, two amendments to the zoning ordinance became effective, and created a new R-1A zone that included the lot. For one-family and two-family homes, one amendment set a minimum lot size of 40 x 100 feet (4000 square feet), which rendered the lot non-conforming. The other amendment mandated that the front yard setback of homes within the zoning district "shall match the setback of the Primary Building Façade . . . of the closest permitted use on either side of the subject parcel, provided that the building setback to be matched shall be closest to the predominant (most frequently occurring) setback on the blockfront." This amendment clarifies the inconsistency between the prescribed "maximum" setback and the predominant setback.
Dissatisfied with the Board's decision, plaintiffs filed a complaint on April 3, 2007. Plaintiffs argued below, as they do here, that the Board's decision was arbitrary and capricious because there was no evidence in the record supporting the grant of the rear yard variance, and the that Board made no findings about the necessity of that variance other than the general finding that the benefits of the two variances outweighed the detriment to the neighborhood. Rejecting this argument, the judge found that:
Here, the Board had sufficient evidence before it to grant the variances. The owner had received permits, was entitled to build a house with a 1,390 square foot footprint and ten foot front yard setback. [DJM] agreed to increase the front yard and the Board recognized that [DJM] would need to reduce the rear yard in order to build the same house with a larger front yard. That finding is inherent within the findings of the Zoning Board and plaintiff[s'] argument that without the specific finding as the justified rear yard, I think is not persuasive. In fact, paragraphs three and six of the resolution address this issue inherently and really speak to the obvious need to have a smaller rear yard if you're going to have a larger front yard.
The increased front yard would place the house in line with the prevailing front yard setback, it would increase the open area in front of the house, presumably similar to other homes on the block and allow for additional landscaping for the streetscape. [DJM's expert], the only expert who testified at the hearing, . . . testified as to the advantage of moving the front yard setback and the lack of detriment to the granting of the variances.
Again, the statutory criteria set forth in [N.J.S.A.] 40:55D-70 were met by the testimony of  DJM's expert.
I find, . . . that there was sufficient evidence to show that the benefits of the variances substantially outweighed any detriment, which is the standard, effectively under Subsection C of [N.J.S.A. 40:55d-70] . . . and find them to have been met. And again, that criteria was addressed to the setback that was submitted in this application. It was more in keeping with the other homes that are situated on this block.
Plaintiffs also argued below, as they do here, that the Board acted arbitrarily and capriciously in failing to consider the design standards. Rejecting this argument, the trial judge found that:
The Board has the right to consider design standards but it's something within their total control and total discretion, and to the extent that they deemed it necessary to consider design standards they did so and addressed it in their findings, and to the extent they didn't, they waived them. I don't agree with [plaintiffs' argument] that there's something defective in the resolution related to that finding as to the waiver which renders the resolution and the approval a nullity. So, I agree and disagree with both parties on the position, but, again, the issue as it was addressed in the resolution of February 12, 2007, I find not to be arbitrary, capricious and unreasonable.
The design standards are -- that were cited at Section 345-62 [of the ordinance] and they're rather -- in terms of general concepts but, again, within the discretion of the, in my view, the Board . . . to decide how and in what manner they should be applied.
Classically, and certainly a site plan application would be more conducive to the application of those standards. No site plan approval is required because it's a [permitted] two family home but to the extent that [the Board] did make comment upon [it] in [the] resolution again, I find the Board's actions were proper.
Finally, plaintiffs argued below, as they do here, that the time of decision rule required the trial judge (and this court) to apply the amendments which became effective after the Board granted the variances. The trial judge found that:
[U]nder principles of equitable estoppel, the Courts recognize an exception to the time of decision rule when a developer has obtained investive rights in a project. The rule will not apply when a building permit is issued. The zoning officer had a reasonable basis for issuing the permit. The zoning officer and the applicant acting in good faith in processing and issuing the permit and the applicant relied in good faith upon the issuance of the permit. See [Urban Farms, Inc. v. Borough of Franklin Lakes, 179 N.J. Super. 203, 217 (App. Div.), certif. denied, 87 N.J. 428 (1981)].
[T]he operative issues are the reliance, the building permit that was issued and, in fact, the variance application was approved, which this Court has found not to be arbitrary and capricious. So, to suggest now when a variance is granted under existing law and then apply new law would render the variance grants ineffective and the Court is not inclined to do it. Equitable estoppel clearly applies in this case, so that the Court will not employ the time of decision rule.
The judge dismissed the complaint and ordered the construction official to issue a building permit based on the modified site plan approved by the Board.
A trial court's review of a municipal board's actions on planning matters is limited to determining whether the board's decision was arbitrary, capricious or unreasonable. Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965); Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App. Div. 2001). As explained by the Supreme Court in Kramer:
Courts cannot substitute an independent judgment for that of the boards in areas of factual disputes; neither will they exercise anew the original jurisdiction of such boards or trespass on their administrative work. So long as the power exists to do the act complained of and there is substantial evidence to support it, the judicial branch of the government cannot interfere . . . .
Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved. [Kramer, supra, 45 N.J. at 296-97 (citations omitted).]
Thus, we will "not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Zoning Bd. of Adjustment of Borough of N. Caldwell, 160 N.J. 41, 58-59 (1999); accord Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990) (citing Fobe Assocs. v. Mayor of Demarest, 74 N.J. 519, 538 (1977)). However, conclusions on matters of law are not entitled to any particular deference. Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999); Atl. Container, Inc. v. Twp. of Eagleswood Planning Bd., 321 N.J. Super. 261, 269 (App. Div. 1999) (citations omitted). The same scope of review applies on appeal. Cohen v. Bd. of Adjustment of Borough of Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007) (citing N.Y. SMSA Ltd. P'ship v. Bd. of Adjustment, Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004)); Charlie Brown of Chatham, Inc. v. Bd. of Adjustment for Twp. of Chatham, 202 N.J. Super. 312, 321 (App. Div. 1985).
Applying these standards, we conclude that the Board's grant of the variances was not arbitrary, capricious or unreasonable and was supported by substantial evidence in the record. The testimony of DJM's expert about the benefits and detriments of the variances demonstrated that the grant of the rear yard variance would have a positive impact on neighborhood, and would satisfy plaintiffs' concern that the front of the proposed home would comply with the predominant front yard setback on the block and conform to the front yard setback of adjacent properties.
We are also satisfied that the Board considered design standards and the home's compatibility with the characteristics of surrounding homes. As part of DJM's application for the variances, it agreed to a number of design changes that addressed the concerns Burke raised. Also, the Board heard and considered the public's objections to the home's design. The Board's resolution reflected the design changes and the Board's waiver of any deviations from the design standards.
Finally, we agree that the "time of decision" rule does not apply here. As our Supreme Court noted in Riggs v. Twp. of Long Beach, 101 N.J. 515, 520-21 (1986), rev'd on o.g., 109 N.J. 601 (1988):
A time-of-decision rule problem arises when, after a lower court or administrative agency decision, there is a change in the relevant law that governs the disposition of the issues on appeal. The question in such cases is which law should control the reviewing court's decision: the law in effect when the issues arose and were initially presented for the lower tribunal's determination or the new or amended law that is in effect at the time the appellate court must render its decision.
Under the rule, we will apply the most recent iteration of an ordinance when the legislating body "intended that its modification be retroactive to pending cases." Kruvant v. Mayor and Council of Twp. of Cedar Grove, 82 N.J. 435, 440 (1980). "The purpose of the principle is to effectuate the current policy declared by the legislative body -- a policy which presumably is in the public interest." Ibid. For example, we have noted that "a municipality may amend its zoning ordinances 'during the pendency of a site plan application . . . even if the ordinance is amended in direct response to a particular application.'" Eastampton Ctr., L.L.C. v. Planning Bd. of Twp. of Eastampton, 354 N.J. Super. 171, 196-97 (App. Div. 2002) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378-79 (1995)). However, "when one party has obtained a vested right under the prior law, the later law may not be applied if this will divest that right." Riggs, supra, 101 N.J. at 521 (citing S.T.C. Corp. v. Planning Bd. of Twp. of Hillsborough, 194 N.J. Super. 333, 335-36 (App. Div. 1984)). "[O]nce the final site plan application was approved, [the developer's] rights were vested and the [municipality] could not thereafter impose further conditions on that approval." Britwood Urban Renewal, L.L.C. v. City of Asbury Park, 376 N.J. Super. 552, 570 (App. Div. 2005) (citing S.T.C. Corp., supra, 194 N.J. Super. at 336).
Here, the Board approved the modified site plan and granted the variances. Thus, DJM's rights were vested, barring retroactive application of the ordinance amendments.