On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5830-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Yannotti.
Plaintiff Larry Price appeals from an order entered by the Law Division on April 17, 2007, which dismissed his action in lieu of prerogative writs. The court affirmed the issuance by the Union City Zoning Board of Adjustment of site plan approval and variances for the construction by defendant Hudson Heights Development, LLC of a four-story residential building in the City. For the reasons that follow, we reverse.
Here, Hudson Heights proposed to construct a "limited multi-family residential development" on property located at 115-129 37th Street in Union City. The property is in the City's "R-Zone." The proposed building consists of three residential floors over a single grade-level of parking. The structure will contain twelve two-bedroom units, twenty-four one-bedroom units and twelve studio apartments.
The Board considered the application at its meeting of September 21, 2006. Hudson Heights presented testimony from Albert Arencibia, the architect of the building; Craig Peregoy, a traffic engineer; and Michael Kauker, a professional planner. Thereafter, the Board voted to approve the site plan and variances from the zoning requirements for maximum density, maximum lot coverage, front yard setback, rear yard setback, side yard setbacks, building length, building height, and parking. On October 12, 2006, the Board adopted a resolution that memorialized its action.
On December 4, 2006, plaintiff filed his action in the Law Division seeking to invalidate the Board's action. Plaintiff alleged that the Board's action was void because Hudson Heights had not filed with the Board a statement disclosing the names and addresses of all persons holding at least ten percent of its stock, as required by N.J.S.A. 40:55D-48.1. Plaintiff also alleged that the Board's action in approving the variances was arbitrary, capricious and unreasonable.
The trial court heard the matter on April 3, 2007, and placed its decision on the record on that date. The court rejected plaintiff's contention that the Board's action was void because Hudson Heights had not filed the stockholder disclosure statement before the Board acted. The court determined that Hudson Heights' failure to file the disclosure statement was an "oversight" that was cured when Hudson Heights later filed the statement. The court additionally found that there was sufficient credible evidence in the record to support the Board's decision to approve the site plan and the variances. The court concluded that the Board's action was not arbitrary, capricious or unreasonable. The trial court entered an order dated April 17, 2007, which memorialized its findings and dismissed plaintiff's complaint. This appeal followed.
Plaintiff argues that the Board's action was "defective" because Hudson Heights did not file the stockholder disclosure statement before the Board acted. Plaintiff further contends that the Board's decision to grant Hudson Heights a density variance pursuant to N.J.S.A. 40:55D-70(d)(5) was arbitrary, capricious and unreasonable. Plaintiff also challenges all nine of the variances, arguing that the variances would substantially impair the City's zone plan and zoning ordinance.
The standard of review that applies when a trial court reviews a decision of a local zoning board is well-established. Such a decision "may be set aside only when it is 'arbitrary, capricious or unreasonable.'" Cell South of N.J., Inc. v. Zoning Bd. of Adj., 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). A court may "not substitute its judgment for that of [the zoning] board 'even when it is doubtful about the wisdom of the action.'" Ibid. (quoting Cellular Tel. Co. v. Zoning Bd. of Adj., 90 F. Supp.2d 557, 563 (D.N.J. 2000)). The decision of a zoning board is presumed to be valid, and "the party 'attacking such action [has] the burden of proving otherwise.'" Id. at 81-82 (quoting N.Y. SMSA Ltd. P'ship v. Bd. of Adj., 324 N.J. Super. 149, 163 (App. Div.), certif. denied, 162 N.J. 488 (1999)). We apply the same standard of review. N.Y. SMSA Ltd. P'ship v. Bd. of Adj. of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004).
Here, the Board determined that the proposed structure was a "mid-rise development" that was a conditional use in the R-zone. The Board thus considered the application under the standards set forth in Coventry Square, Inc. v. Westwood Zoning Bd. of Adj., 138 N.J. 285, 298-99 (1994), which apply when variances are sought from the requirements for conditional uses. The Board found that the more exacting burden of proof under Medici did not apply to its consideration of the variance requests. Medici establishes standards of proof when a request is made to permit a prohibited use in a district where the use is not allowed. Medici, supra, 107 N.J. at 18-21.
In our judgment, the Board erred by treating the structure proposed by Hudson Heights as a conditional use in the R-Zone. The City's zoning ordinance provides that the R-Zone primarily consists of one, two and four-family dwellings. The ordinance also permits "limited multi-family developments" as conditional uses in the R-Zone, provided that such developments meet the requirements of Note 21.
The Note 21 requirements are: (1) the site must be at least 10,000 square feet; (2) the development must be "compatible with the neighborhood" in which it will be constructed; and (3) the proposed structure must comply with the criteria for "garden apartment developments" set forth in Note 12. The Note 12 criteria pertain to, among other things, minimum lot size, dwelling units per acre, ...