On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2375-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...