On appeal from Superior Court of New Jersey Law Division, Hudson County, L-1491-07.
The opinion of the court was delivered by: Waugh, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Payne and Waugh.
Plaintiff Larry Price appeals the dismissal of his action in lieu of prerogative writs challenging the grant of a density variance with respect to the construction of an eighteen-story, multi-family residential building in the City of Union City. We reverse and remand for further consideration by the Board.
Defendant Strategic Capital Partners, LLC (Strategic Capital) is the owner of a tract of land located at 1410-1416 Manhattan Avenue in Union City. The tract is designated as Block 185, Lots 12, 14, and 15, and is located in the Multi-Family Residential Zoning District (R-MF zone) and the Steep Slope Overlay Zoning District (SSOD zone).
Strategic Capital seeks to construct a luxury high-rise residential building on the property, following the demolition of the existing two-story masonry building and other improvements currently on the site. The proposed eighteen-story building would provide ninety-eight parking spaces in an internal parking garage located on the first five floors and ninety, one-and two-bedroom residential units on the remaining thirteen floors.
Strategic Capital applied for the necessary approvals from defendant Union City Zoning Board of Adjustment (Board). Because the property is located in the SSOD zone, the proposed building would ordinarily be limited to thirty residential units. Strategic Capital applied for a density variance, pursuant to N.J.S.A. 40:55D-70(d)(5), seeking to treble the permitted density. The height of the proposed building, eighteen stories, is permitted in the R-MF zone and not prohibited in the SSOD zone. The density variance ultimately granted by the Board is the subject of Price's appeal.
On January 18, 2007, the Board held a public hearing on the application. Strategic Capital presented testimony from four professionals: (1) a registered architect; (2) a professional civil engineer; (3) a professional traffic engineer; and (4) a professional planner. Additional testimony was provided by a professional planner who serves as the Board's planning consultant.
The architect described the existing building and the architecture of the proposed residential building. The civil engineer testified that, because the proposed residential building would not adversely affect the municipal water supply or sewer system, the ninety-unit density would have no greater adverse effect on the surrounding properties than a building providing only thirty units.
The traffic engineer testified that the proposed residential building would not significantly increase traffic in the area, based upon a traffic study performed at the intersections on both ends of the project site. He also explained the availability of public transportation to and from the proposed residential building and the adequacy of the proposed parking. He concluded that the proposed ninety-unit building would have no greater impact on traffic generation or level of traffic service than would a thirty-unit building.
The professional planner testified in support of the density variance required for the project. In addition, he confirmed that the property is located in the R-MF zone, where high-rise structures are a permitted use.
Various neighbors and others testified at the hearing. Some voiced support for the application, generally expressing the view that it would be a benefit to Union City and would help improve the Manhattan Avenue neighborhood. Others expressed objections to the proposal, focusing on the size of the structure; the method for calculating density within the SSOD zone;*fn1 and the Board's authority to grant any density variances within the SSOD zone.
The Board approved the application by a unanimous vote at its January 18, 2007, hearing. The approval was memorialized in a resolution adopted on February 8, 2007, which reached the following relevant conclusions:
a. The Project is a permitted use in the RMF Zone and the Steep Slope Overlay Zone.
b. The Application meets all of the bulk requirements of the R-MF Zone and the Steep Slope Overlay Zone, with the exception of the maximum permitted density.
c. The Project could actually have been taller and larger than proposed in the Application and would have still complied with all of the bulk and use requirements of the R-MF Zone and the Steep Slope Overlay Zone.
d. Regardless of whether the maximum allowable density for the Property is 7, 20, 30 or 70 residential units, the Board, in determining whether or not to grant the density variance, must determine whether the Applicant has proved that:
(i) the Property remains suitable for the Project at the increased density,
(ii) the variance promotes one or more of the purposes of zoning set forth in the MLUL [Municipal Land Use Law],
(iii) the variance does not substantially impair the intent [or] purpose of the City Zone Plan and Zoning Ordinance, and
(iv) the variance does not substantially impair the public good.
e. Ordinance §18-5.4.i, which prohibits the Board's granting of a density variance from the requirements of the Steep Slope Ordinance, is a provision in conflict with the MLUL; as demonstrated by New Jersey case law, including [Lawrence M.] Krain [Associates, Inc.] v. [Mayor of] Maple Shade, 185 N.J. Super. 336 (Law Div. 1982).
f. The Property is currently underutilized and unsightly.
g. The Project would enhance the aesthetic appearance of the Property and the surrounding neighborhood through development of an otherwise underdeveloped and unsightly property with an ...