On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-0851-07 and L-2473-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Waugh and Newman.
In these two appeals by Larry Price (Price), a citizen of Union City, we consider two challenges to variances granted by the Union City Zoning Board of Adjustment (Board). We reverse on both appeals.
Genesis Construction Corporation (Genesis) sought to erect a seventy-two-unit residential building on an undersized lot in Union City. The Genesis site is approximately 191 feet by 176 feet, or 33,119 square feet. It is located mid-block on the north side of 12th Street, between Central Avenue and Morris Street. The project calls for the demolition of various buildings presently located on the site.
The site is located in the R Zone on the official Union City Zoning Map. Residential uses allowed by right in the R Zone are one, two, three and four-family dwellings and one-family row houses. Public housing developments for senior citizens, rooming houses, and limited multi-family developments are conditionally-permitted uses. Structures that fall within the ordinance's definition of "Apartment House, Highrise" are not permitted in the R Zone as a conditional use.
Genesis proposes to construct a five-story structure with one floor of parking and four residential floors. The plans call for 32 one-bedroom units and 40 two-bedroom units as well as 100 parking spaces. The proposed structure will have a three-foot setback from the property line on all four sides and will be 50-feet high, 170-feet long, and will cover 90.6% of the site.
Genesis filed an application with the Board seeking a use variance as well as nine other variances for: density; height; lot coverage; parking; building length; loading space; front yard set-back; side yard set-back; and rear yard set-back. At the conclusion of three public hearings, the Board approved the application and granted all variances. The Board agreed with Genesis that the proposed structure was not an "Apartment House, High Rise." Rather, the Board concluded that the proposed structure is an "Apartment House, Garden-Type," which is described as "not more than three stories containing three or more dwelling units." An "Apartment House, Garden Type" is a conditionally permitted use in the R zone.
Price filed an action in lieu of prerogative writs. The Law Division judge upheld the decision of the Board.
On appeal, Price contends that the proposed structure is a non-permitted high-rise building. We agree and, therefore, do not consider the remaining three arguments: that the numerous variances granted impair the zone plan; no adequate special reasons were given for an N.J.S.A. 40:55D-70d(5) density variance; and the applicant did not meet the requirements for N.J.S.A. 40:55D-70c(2) variances.
It is clear to us that the proposed five-story, seventy-two-unit structure is an "Apartment House, High Rise." Thus, it is not a permitted conditional use in the R zone. The application should have been rejected on that basis alone.
The Union City ordinance defines an "Apartment House, High Rise" as "[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." Union City, N.J. Code § 18-3.6. Several panels of the Appellate Division have construed this language of the Union City ordinance and concluded that the reference to the heating source is "superfluous" in defining an Apartment House, High Rise. See Price v. N.Y. Avenue, LLC, No. A-0362-07 (App. Div. Nov. 7, 2008) (six-story, fifty-dwelling-unit building); Price v. Malas Enters. 2, LLC, No. A-5422-06 (App. Div. Aug. 1, 2008) (eight-story, thirty-five-dwelling-unit building); Price v. Rocha, No. A-5420-06 (App. Div. Aug. 1, 2008) (eighteen-story, eighty-four-unit building); Price v. Union City Zoning Bd. of Adj., No. A-4017-06 (App. Div. Aug. 1, 2008), certif. denied, 196 N.J. 599 (2008) (seven-story, thirty-dwelling-unit building); Price v. Union City Zoning Bd. of Adj., No. A-6411-06 (App. Div. Jul. 9, 2008) (nine-story, fifty-six-dwelling-unit building); and Price v. 13-14 Union, LLC, No. A-6490-06 (App. Div. May 21, 2008), certif. denied, 196 N.J. 462 (2008).
Although these were unpublished decisions that do not have precedential value for the rest of the world, they are binding on the Board, which was a party in every one of the cases. See Raymond v. New Jersey State Parole ...