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Price v. Saroza

December 17, 2008

LARRY PRICE, PLAINTIFF-APPELLANT,
v.
NESTOR, AMBER AND MARIA SAROZA AND ZONING BOARD OF ADJUSTMENT OF THE CITY OF UNION CITY, DEFENDANTS-RESPONDENTS.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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