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Price v. 3623 Parkview

December 8, 2008

LARRY PRICE, PLAINTIFF-APPELLANT,
v.
3623 PARKVIEW, LLC, AND UNION CITY ZONING BOARD OF ADJUSTMENT, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5126-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 5, 2008

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 3623 Parkview, LLC (Parkview) of a four-story, thirty-three unit residential building in the City. For the reasons that follow, we reverse.

In this matter, Parkview proposed to construct a "limited multi-family residential development" on vacant land at the southwest corner of Park Avenue and 37th Street in Union City. The property is located 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 nine studio apartments, eighteen one-bedroom units and six two-bedroom units.

The Board considered the application at its meeting of June 29, 2006. Parkview 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, provided it was revised to eliminate the commercial space on the ground floor and include a two-and-one-half foot setback on 37th Street.

In approving the site plan, the Board granted Parkview variances from the zoning requirements for maximum density, maximum lot coverage, front yard setback, rear yard setback, side yard setbacks, building length, building height, parking, and loading berth. On September 14, 2006, the Board adopted a resolution that memorialized its action.

On October 24, 2006, plaintiff filed his action in the Law Division seeking to invalidate the Board's action. The trial court heard the matter on April 3, 2007, and placed its decision on the record on that date. The court found that there was sufficient credible evidence in the record to support the Board's findings and its action was not arbitrary, capricious or unreasonable. The trial court entered an order dated April 17, 2007 dismissing plaintiff's complaint. This appeal followed.

Plaintiff argues that the Board's decision to grant Parkview the height variance pursuant to N.J.S.A. 40:55D-70(d)(6) was arbitrary, capricious and unreasonable. Plaintiff additionally argues that Parkview failed to present sufficient evidence to justify the grant of the density variance sought under N.J.S.A. 40:55D-70(d)(5). Plaintiff also challenges all nine of the variances, arguing that the variances would substantially impair the City's zone plan and the 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 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 found that the 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 such a use is not allowed. Medici, supra, 107 N.J. at 18-21. In considering Parkview's application the Board employed the less-exacting standards under 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.

In our judgment, the Board erred by treating Parkview's proposed structure 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 minimum lot size, dwelling units per acre, maximum ...


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