August 6, 2009
LARRY PRICE, PLAINTIFF-APPELLANT,
GENESIS CONSTRUCTION CORPORATION AND UNION CITY ZONING BOARD OF ADJUSTMENT, DEFENDANTS-RESPONDENTS.
LARRY PRICE, PLAINTIFF-APPELLANT,
SUEDE PROMOTIONS, L.L.C., AND UNION CITY ZONING BOARD OF ADJUSTMENT, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 19, 2008
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 Bd., 221 N.J. Super. 381, 384-85 (App. Div. 1987); R. 1:36-3.
Because interpretation of the ordinance is a question of law, we are not bound by the Board's or the trial court's construction of this definition. Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Wyzykowski v. Rizas, 132 N.J. 509, 518-20 (1993). On the other hand, the Board is bound by our legal interpretation. Therefore, the issue is settled in this and future cases unless the Supreme Court decides otherwise. In short, regardless of the source of heat, a structure more than three stories and containing three or more dwelling units is not a conditional use in the R zone.
Suede Promotions, LLC, (Suede) proposes to erect a 10-story structure on a site which is approximately 150-feet by 87-feet, or 13,095 square feet. The site is located mid-block on the south side of 40th Street between Bergenline Avenue and Kennedy Boulevard. The site is located in the R Zone. As stated above, one, two, three, and four-family dwellings and one-family row houses are allowed in the R Zone, but not high rise apartment buildings.
The application calls for the erection of a structure that will consist of six residential floors over four levels of parking. There will be forty-two two-bedroom units and fifty-nine parking spaces. The proposed structure will have a two-foot setback in the front and a three-foot setback on the other three sides of the building. The building will be 88.5-feet high, 142.5-feet long, and will cover 87.5% of the site.
Suede filed an application with the Board seeking variances pursuant to N.J.S.A. 40:55D-70. The Board considered the application at two public hearings and adopted a resolution granting a conditional use variance pursuant to N.J.S.A. 40:55D-70(d)(3).
Price filed an action in lieu of prerogative writs in the Law Division. Following a trial, the same judge upheld the actions of the Board.
On appeal, Price contends that the proposed structure is a non-permitted high-rise building. We agree for the same reasons as in the companion case, and therefore do not consider the remaining arguments: the variances granted impair the zone plan and zoning ordinance; the site cannot accommodate problems associated with a d(5) variance; no adequate special reasons were given for the d(6) height variance; the applicant did not meet the requirements for c(2) variances; and "the role of the trial judge."
Reversed on A-1449-07T3 and A-2340-07T3.