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PC Air Rights, L.L.C. v. Mayor and Council of the City of Hackensack

June 28, 2010


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5350-05.

Per curiam.


Argued February 3, 2010

Before Judges Wefing, Messano and LeWinn.

Plaintiff appeals from a judgment entered by the trial court in January 2009 following the conclusion of remand proceedings we ordered. After reviewing the record in light of the contentions advanced on appeal, we affirm.

This appeal is the second time these parties have been before this court in connection with plaintiff's efforts to construct a high-rise apartment building in Hackensack. On each occasion, plaintiff has appealed from determinations of the trial court that impeded those development efforts.

We give the following brief summary of plaintiff's development efforts. Plaintiff is the contract purchaser of Lots 9 and 10 in Block 627 in Hackensack. The contract seller is New York Susquehanna and Western Railway Corporation; closing of the contract is contingent upon plaintiff securing the necessary development approvals. Lots 9 and 10 are not contiguous but are divided by Prospect Avenue, a north-south dedicated public thoroughfare. Lot 9, which is on the east side of Prospect, is the larger of the two; it consists of 151,940 square feet while Lot 10, on the west side of Prospect, has 49,595 square feet. Combined, the two lots total 201,535 square feet.

The contract of sale between plaintiff and the railway divided the two lots into three separate tracts, A, B, and C.

It defined Tract A as "the fee of air space plus the easement for support and access over the [railway's] line" between Prospect Avenue and Summit Avenue. Summit parallels Prospect and lies one block to the west. Tract A occupies Lot 10. Tracts B and C are on Lot 9; Tract B runs between Prospect Avenue and Overlook Terrace and Tract C runs between Overlook Terrace and Second Street.

At the time plaintiff initially submitted its development application, in December 2003, Lot 10 was divided into two zoning districts, R-1, single family dwellings; and R-3, which permitted both single-family and multi-family dwellings while Lot 9 was divided into three zoning districts, R-3; R-2A, which permitted one and two family dwellings and garden apartments; and R-3B, which permitted professional office buildings as well as those uses permitted in R-2A.

Plaintiff sought approval for the construction of a twenty-three story high-rise apartment building, with associated appurtenances, all of which were to be located on the east side of Prospect Avenue, on Lot 9. Plaintiff proposed to erect this building over the railway's right of way, utilizing the air rights it proposed to purchase. Plaintiff's site plan application, however, utilized both Lot 9 and Lot 10 to satisfy requirements of the Hackensack zoning code. The City's code enforcement official deemed the site plan application incomplete because it was not accompanied by requests for use and bulk variances. Plaintiff appealed that determination to the Zoning Board of Adjustment (the "Zoning Board"), contending no variances were required. The Board, however, upheld the determination of the code enforcement officer in this regard.

While plaintiff's appeal was pending before the Zoning Board, the City amended its zoning ordinance in several regards, one of which was that that portion of Lot 9 which had been zoned R-3B was changed to R-2. After the Zoning Board passed its resolution upholding the determination with respect to the need for variance relief, plaintiff filed an action in lieu of prerogative writs seeking various forms of relief. Following a bench trial, the trial court concluded that the rezoning to R-2 constituted impermissible spot zoning. It also set aside the remainder of the zoning amendments on procedural grounds but granted the City the opportunity to correct those procedural defects. Further, it concluded that the fact that Lots 9 and 10 were not contiguous prevented the use of Lot 10 being included in the calculations for the development of Lot 9.

Plaintiff appealed the trial court's judgment to this court. After considering and disposing of each of plaintiff's challenges, we remanded the matter to the trial court for consideration of whether the City's zoning ordinance permitted the aggrandizement of non-contiguous lots for purposes of calculating compliance with the zoning code and whether the lot coverage restrictions contained in the City's zoning code were calculated on a per lot basis. We deemed that remand necessary in light of the fact that none of the parties had presented to us the relevant portions of the City's zoning ordinance. We also directed the trial court to consider, based upon its answers to those questions, whether plaintiff was required to seek variance relief to proceed with its proposed project. Plaintiff has appealed from the trial court's judgment that such aggrandizement of lots is not permitted under Hackensack's zoning ordinance and that the ordinance requires that the calculations to compute maximum coverage restrictions be done on a per lot basis.

We are satisfied the trial court was entirely correct in this regard. We note first that we are reviewing the trial court's interpretation of the City's zoning ordinance, and are thus dealing with a question of law. Our review, in consequence, is de novo. Mountain Hill, L.L.C. v. Zoning Bd. of Adjustment of Middletown, 403 N.J. Super. 210, 234-35 (App. Div. 2008) (stating, "[w]hen the sole issue before us is the meaning of language in an ordinance, the trial judge's determination is not entitled to any special deference because the issue is one of law which is always subject to review de novo."), certif. denied, 197 ...

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