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Price v. Saroza


December 17, 2008


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2665-07.

Per curiam.


Argued December 8, 2008

Before Judges Carchman and Sabatino.

Plaintiff Larry Price, pro se, appeals the Law Division's order of December 21, 2007, which upheld the Union City Board of Adjustment's ("the Board's") issuance of multiple variances to defendants Nestor Saroza, Amber Saroza, and Maria Saroza ("the Sarozas"). The Board issued the variances, and the trial court sustained them, upon an assumption that the Sarozas' proposed four-story apartment building was a conditionally permitted use in the residential zone of Union City where the subject property is located. Because that assumption was erroneous, we vacate the trial court's order and remand for further proceedings.

The subject properties owned by the Sarozas consist of Block 161, Lots 37 and 38, on what is commonly known as 522-524 29th Street in Union City. The combined parcel is slightly more than 47 feet wide and 100 feet deep. It encompasses 4,748 square feet. At present, the properties contain a two-family house and the adjoining lot contains a detached one-family house. The premises are located in the "R" residential zone, which generally permits up to four-family dwellings and one-family row homes.

The Sarozas wish to raze the two existing structures on the parcel and build a four-story apartment building in their stead. The proposed building would contain eight rental units with ten parking spaces in a garage to be built underneath the structure.

The Sarozas characterize their proposed apartment building as a limited multi-family development. Under the pertinent Union City zoning ordinance, "limited multi-family developments" are conditional uses in the R zone, provided that such developments meet the requirements of Note 21 to the ordinance. Note 21 specifies, among other things, that: (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, as may be appropriate, with the criteria for "garden apartment developments" set forth in Note 12 of the ordinance.

Only two types of apartment houses are contemplated by the city's zoning ordinance: garden apartments and high rises. Those terms are defined as follows:

18:3-5 Apartment House, Garden Type. A residential structure of not more than three stories containing three or more dwelling units. 18:3-6 Apartment House, High Rise. A residential structure of more than three stories, containing three or more dwelling units and containing a heating plant which supplies heat to all tenants.

[(Emphasis added).]

The ordinance does not allow high-rise apartment buildings in the R zone, but garden apartments are a conditionally permitted use. The number of stories of the proposed structure becomes critical to the use classification in the R zone. In particular, Note 12(6) to the ordinance specifies that:

(6) No garden apartment building shall exceed a height of three and one-half stories or 50 feet, and no accessory structure shall exceed a height of one story or 15 feet.

[(Emphasis added).]

Nine variances were sought for the Sarozas' project: six conditional use variances under N.J.S.A. 40:55D-70(d)(3) for lot coverage, lot size, structure height, front setback, building length, and parking; a density variance under N.J.S.A. 40:55D-70(d)(5); and two variances under N.J.S.A. 40:55D-70(c)(2) for side yard and rear yard setbacks.

The Sarozas presented their land use application to the Board over multiple hearing dates in December 2006 through February 2007. They principally relied upon the expert testimony of a licensed architect and planner. Plaintiff, a resident of Union City, opposed the Sarozas' application, although he did not submit proofs himself.

At the end of its hearings, the Board voted to approve the variances. In its implementing resolution, the Board described the planned apartment building as a conditional use. It authorized the assorted variances for lot coverage, lot size, setbacks, density, structure height, building length, and parking. Among other things, the Board found that the site is particularly suited for the proposed apartment building, would add to the city's housing stock, would enhance parking, and promote a desirable visual environment.

Subsequently, plaintiff filed this action in lieu of prerogative writs in the Law Division, challenging the Board's action. Assessing the matter de novo under the review standard of Coventry Square, Inc. v. Westwood Zoning Bd. of Adj., 138 N.J. 285, 298-99 (1994), which applies to variances for conditional uses, the Law Division judge upheld the Board's action. The court declined to apply the more stringent review criteria of Medici v. BPR Co., 107 N.J. 1, 15 (1987), which pertain to variances for uses that are not permitted within the relevant zone. Under Medici, an applicant must show not only the statutory "special reasons" justifying a deviation from the uses specified for the zone, see N.J.S.A. 40:55D-70(d)(1), but also "an enhanced quality of proof and clear and specific findings . . . that the variance sought is not inconsistent with the intent and purposes of the master plan and the zoning ordinance." Id. at 21. See also Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adj., 388 N.J. Super. 67, 80 (App. Div. 2006) (applying the stringent requirements of Medici).

Plaintiff challenges these determinations on appeal. Among other things, he maintains that the large number of variances needed for this project signifies that the application is, in essence, an improper attempt to rezone by variance. He also contends that the trial court erred in examining the positive and negative criteria here under the more relaxed Coventry Square standard of review in lieu of the more exacting Medici standard.

We bear in mind that the Sarozas' proposed apartment building would consist of four stories. As such, the project does not fit the definition of a "garden apartment" under Section 18:3-5 of the zoning ordinance because it is more than three stories. The building also exceeds the three-and-a-half-story height allowance set forth in Note 12(6), although it is slightly under the fifty-foot limit also specified in that Note. Accordingly, the project is not a conditional use, and the trial court erred in failing to apply the Medici review standards.

We have reached similar conclusions in other Union City variance cases involving the same plaintiff and proposed buildings over three stories. See, e.g., Price v. 3623 Parkview, LLC, No. A-4838-06T2 (App. Div. Dec. 8, 2008) (treating a four-story thirty-three unit residential building within the R zone as a prohibited use); Price v. Hudson Heights Development, LLC, No. A-4766-06T1 (App. Div. Dec. 8, 2008) (holding that a four-story residential building, consisting of three floors over parking, was a not a conditionally permitted use in the R zone); Price v. Malas Enters. 2, LLC, No. A-5422-06T2 (App. Div. Aug. 1, 2008) (holding that a building with five residential floors over three levels of above-ground parking was a prohibited use in the R zone); Price v. Rocha, No. A-5420-06T2 (App. Div. Aug. 1, 2008) (determining that an eighteen-story high-rise building was not a permitted use in the R zone); Price v. Union City Zoning Bd. of Adj., No. A-6411-06T3 (App. Div. July 9, 2008) (concluding that a seven-story, multi-family structure was a prohibited use in the R zone); and Price v. Union City Zoning Bd. of Adj., No. A-5340-05T3 (App. Div. June 25, 2007) (finding that an apartment building with six residential stories above two levels of parking, one of which is above ground, is not a permitted use in the R zone). We held in all of these other appeals, that the Board erred by treating the applications as conditional uses and failing to consider the respective variance applications under the Medici standards. We do likewise here.*fn1

The Law Division's order of December 21, 2007 is consequently vacated, and the matter is remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

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