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Price v. Wilt


July 20, 2009


On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2375-07.

Per curiam.


Argued February 10, 2009

Before Judges Parker, Yannotti and LeWinn.

Plaintiff Larry Price, a resident of Union City, appeals from an order entered on December 4, 2007 affirming the actions of the Union City Zoning Board of Adjustment (Board) in granting site plan and variance approvals to defendant Vincent Wilt and dismissing the complaint in lieu of prerogative writs. We reverse.

The facts relevant to this appeal are as follows. Wilt is a contract purchaser of property at 304-306 New York Avenue in Union City. The property, in an R-1 zone, consists of 6,300 square feet in a plot sixty-three feet wide by one hundred feet deep. A two and one-half story residential building and a one-story non-residential building are now on the property, both of which are scheduled for demolition. Wilt proposes to build a six-story, twenty-unit residential building with two levels of parking, one below grade, for a total of thirty-two spaces. The building will cover 76.46 percent of the site.

Wilt's application to the Board sought use, bulk, height and parking variances. The Board conducted public hearings on September 28, 2006 and February 15, 2007, at which it "heard the testimony of the applicant's witnesses, reviewed and considered the exhibits marked into evidence and received and considered the comments of the public."

Plaintiff attended the hearings and participated as a member of the public, asking questions of the applicant's planner, who testified at the hearings. Wilt's initial application proposed a seven-story, seventy-foot-tall building with twenty-four residential units. At the second hearing, the Board recommended that the building be reduced to six stories, sixty feet tall, with twenty units and that the balconies be eliminated. Wilt accepted those recommendations and amended his application accordingly.

On April 12, 2007, the Board adopted a resolution approving the amended application. The Board "determined that special reasons exist for the relief requested by the Applicant and can be granted without substantially impacting on the public good and without substantially impairing the intent and purpose of the Zone Plan and Master Plan." The Board further found "no credible opposition to the project," and described "the testimony of the Applicant's witnesses as credible." The Board had been concerned with the height and density of the initial proposal, but indicated its satisfaction with Wilt's amended plan reducing the size of the building.

On May 11, 2007, plaintiff filed a complaint in lieu of prerogative writs. He alleged that the Board's approval of the application was "unreasonable, arbitrary and capricious" and sought to have the court reverse it.

Both the Board and Wilt responded and a hearing was conducted on September 17, 2007. On October 16, 2007, the trial court affirmed the Board's approval and dismissed the complaint, but reserved ruling on the issue of whether Wilt was required to obtain a density variance pursuant to N.J.S.A. 40:55D-70d(5) and, if so, whether he had met his burden. The court requested plaintiff and Wilt to submit supplemental briefs on that issue. Thereafter, the court rendered its decision on November 27, 2007, finding that Wilt was not required to obtain a d(5) density variance because the property was not in Union City's Steep Slope Overlay District (SSOD). On December 4, 2007, an order was entered memorializing the court's decision.

In this appeal, plaintiff argues that (1) the Board gave no special reasons for the d(1) use variance; (2) Wilt did not present enhanced quality of proof for the d(1) use variance; (3) the variances granted impair the zone plan and ordinance; and (4) Wilt offered no proofs for the required d(5) density variance.

The decision of a municipal zoning board gives rise to a rebuttable presumption that the board properly exercised its discretion. Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965). The court may not substitute its judgment for that of the zoning board unless the objector proves that the board's action was unreasonable, arbitrary or capricious. Id. at 296-97. Our scope of review is limited, as well, to a determination of whether the board's decision was unreasonable, arbitrary or capricious. Booth v. Bd. of Adjustment of Rockaway, 50 N.J. 302, 306 (1967); Kramer, supra, 45 N.J. at 296-97; Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004). While we generally defer to the board's factual determinations, its construction or interpretation of a local ordinance is subject to de novo review. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993); DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, 174 (App. Div.), certif. denied, 181 N.J. 544 (2004).

The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136, authorizes municipal zoning boards to grant variances from local ordinances when an applicant satisfies the statutory criteria, specifically the "positive criteria by demonstrating a special reason to grant the variance . . . . [and] the statute's negative criteria by showing that a variance can be granted without substantial detriment to the public good and without substantially impairing the intent and the purpose of the zone plan and zoning ordinance." New York SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 335 (App. Div. 2004) (citations omitted).

Union City's R-1 zone permits construction of one, two, three and four-family residential buildings. The proposed twenty-unit building, therefore, requires a use variance under N.J.S.A. 40:55D-70d(1), commonly referred to as a d(1) variance. A d(1) variance can only be granted when the applicant has demonstrated "special reasons."

The New Jersey Supreme Court defined the "special reasons" requirement as follows: "[I]f the use for which a variance is sought is not one that inherently serves the public good, the applicant must prove and the board must specifically find that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use." Medici v. BPR Co., 107 N.J. 1, 4 (1987). In a footnote, the Court added: "Alternatively, the statutory special reasons standard can also be addressed by proof of undue hardship, i.e., that the property cannot reasonably be developed with a conforming use." Id. at 4 n.1.

In the hearings before the Board, the only testimony presented by Wilt with respect to the special reasons requirement was that of his planner, Michael Kauker, who opined that "with respect to this application and the development, . . . the general welfare is promoted because this site is particularly suited for the proposed multiple-family dwelling."

Plaintiff argues that Kauker's opinion did not take into account the restricted meaning generally given to the phrase "particularly suitable." Plaintiff characterizes Kauker's testimony as "a conclusionary statement with no support in the record."

In Medici, the applicant proposed a four-story, 116-room motel with a restaurant in an industrial zone in South Plainfield. 107 N.J. at 5. Hotels and motels were not permitted in the zone, but the applicant's planning expert testified that the site would take "advantage of the marketability and the identification of uses that come with the highway intersection, the highway access points that are either four-tenths of a mile to the west or one and three-tenths of a mile to the east, [of] the interchanges to 287, specifically." Id. at 7. The Court was not satisfied that this testimony met the standard of particular suitability. "The fact that the site is near an interstate highway does not distinguish it from any other property in the vicinity of the highway . . . . [O]n this record, the applicant has not sustained its burden of proof." Id. at 24-25. The Court established a standard for zoning boards with respect to the particular suitability requirement, stating: "[W]e emphasize that members of boards of adjustment, as well as their counsel, should review variance resolutions with care in order to verify that they adequately set forth the findings and conclusions required to sustain the board's action." Id. at 24 n.13.

In Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 210 (App. Div. 1999), we noted that boards should not grant variances based upon particular suitability when the site is merely a convenient location. We held that particular suitability is "where, generally, the use is one that would fill a need in the general community, where there is no other viable location, and where the property itself is particularly well fitted for the use either in terms of its location, topography or shape." Ibid. Moreover, the Supreme Court has noted that where the proposed building "would undoubtedly return . . . a larger profit on its investment[,] [t]his is not the test . . . by which a variance application should be measured." Id. at 213 (quoting Cerdel Constr. Co., Inc. v. E. Hanover Twp., 86 N.J. 303, 306-07 (1981)).

Here, no evidence was presented to the Board that the six-story apartment building was particularly suited for that site. Moreover, in our review of the record, we have found no evidence that the site could not be developed in conformity with the zoning ordinance. The Board's statement that in its "opinion . . . the site is particularly suited for the proposed development" is not supported by the record and is entitled to no deference. The variance granted for a six-story, twenty-unit residential building in the R-1 zone represents a drastic departure from the use contemplated for that zone in the master plan. Accordingly, we find that the Board's approval was unreasonable, arbitrary and capricious. The d(1) variance is, therefore, reversed.

Moreover, the applicant must present evidence demonstrating that the proposed building presents no substantial impairment to the intent and purpose of the zone plan and ordinance, commonly referred to as the "negative criteria." Medici, supra, 107 N.J. at 4-5. We note that the Medici Court further emphasized "for the guidance of boards of adjustment and their counsel, that in the event a use variance is challenged, a conclusory resolution that merely recites the statutory language will be vulnerable to the contention that the negative criteria have not been adequately established." Id. at 23.

Here, Wilt argues that Kauker's testimony with respect to change and developmental trends in the community met the enhanced quality of proof required for a d(1) variance. We disagree, as did the Court in Medici.

[P]roof that the character of a community has changed substantially since the adoption of the master plan and zoning ordinance may demonstrate that a variance for a use omitted from the ordinance is not incompatible with the intent and purpose of the governing body when the ordinance was passed. Reconciliation on this basis becomes increasingly difficult when the governing body has been made aware of prior applications for the same use variance but has declined to revise the zoning ordinance. [Id. at 21-22.]

As plaintiff notes in his brief, "this is not the first [d(1)] use variance in the R-1 Zone; it is not even the tenth."*fn1

We have not been presented with any evidence indicating that the governing body of Union City has, in fact, revised its zoning plan or ordinance.

We next address the Board's grant of the d(5) density variance. At the hearing before the Board, the applicant took the position that no density variance was required and, consequently, he presented no proofs with respect thereto.

Union City Ordinance §18-5.4a establishes "special land use development controls for portions of the City of Union City in the vicinity of the Palisades cliffs" to preserve the cliffs as a prime natural resource, protect persons and property from potentially hazardous conditions, preserve views and encourage innovative design. The protected area, referred to as the SSOD, is subject to certain density restrictions:

The Allowed Density for a site shall be the number of dwelling units permitted on the site in the District in which the site is located without regard to the Steep Slope regulations. These densities are shown on the following Table 1. [Union City Ordinance §18-5.4e(3).]

Table 1 indicates that an R-1 district is limited to a maximum of seventeen units per acre.*fn2 The question then is whether the maximum density in the table applies to R-1 zones outside the SSOD. Plaintiff contends that a plain reading of the ordinance, particularly the language "without regard to the Steep Slope regulations," indicates that it does.

The Board specifically acknowledged that a density variance was required for the project. It did not, however, apply the density table in §18-5.4e. Rather, it applied the thirty-unit-per-acre standard articulated in Note 12 of Union City's Schedule of District Regulations, which provides that for "garden apartment developments" approved by the planning board, "[t]he number of dwelling units per net residential acre or fraction thereof shall not exceed 30 in three and one-half story structures and 25 in two story structures."*fn3

Plaintiff argues that the trial court erred in affirming the Board's interpretation of the zoning ordinance, in that it applied the Note 12 density for garden apartment developments rather than the R-1 density stated in Table 1 referenced in the SSOD section of the zoning ordinance. Wilt responds that Union City zoning ordinances do not include a density restriction for R-1 zones outside of the SSOD and that is why he does not need a d(5) variance.

When interpreting a statute or ordinance, our primary consideration is "to discern and implement the Legislature's intent." State v. Drury, 190 N.J. 197, 209 (2007). We first look to the statute's plain meaning, and "[i]f the meaning of the text is clear and unambiguous on its face, [we] enforce that meaning." State v. Reiner, 180 N.J. 307, 311 (2004).

We agree with plaintiff that the plain language of §18-5.4e(3) -- "without regard to the Steep Slope regulations" -- clearly indicates the governing body's intent to limit the R-1 zone to seventeen units per acre throughout the municipality.

The only reference to R-1 density requirements in the Union City zoning ordinances is in Table 1. Nothing in the table indicates that the seventeen-unit-per-acre density limit for an R-1 zone applies only to R-1 zones located within the SSOD, however. Indeed, the absence of R-1 density standards elsewhere in the zoning ordinances along with the plain language of §18-5.4e(3) lead us to conclude that the seventeen-unit-per-acre limitation is intended to apply to R-1 zones throughout the municipality.

In the absence of an application for a garden apartment development or a density variance, the Board should have applied the R-1 density to an application to develop a lot in the R-1 zone. Since Wilt presented no evidence respecting a density variance, the Board's action in granting one was clearly unreasonable, arbitrary and capricious.

Accordingly, we reverse and vacate the order entered by the trial court on December 4, 2007 and the resolution adopted by the Board on April 12, 2007 granting the approvals.


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