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247 Manila Avenue, LLC and 212 Marin Boulevard, LLC v. Jersey City Zoning Board of Adjustment


December 2, 2010


On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4883-06.

Per curiam.


Argued telephonically October 22, 2010

Before Judges Carchman and Waugh.

Defendant Jersey City Zoning Board of Adjustment (Board) appeals the judgment of the Law Division overturning its affirmance of the Jersey City zoning officer's interpretation of the applicable zoning of two properties owned by plaintiffs 247 Manila Avenue, LLC (Manila LLC), and 212 Marin Boulevard, LLC (Marin LLC). We affirm.


We discern the following facts and procedural history from the record.


Plaintiffs are related limited liability companies, which acquired the two easternmost sections of property formerly owned by the Consolidated Rail Corporation (Conrail) in Jersey City.*fn1

Manila LLC acquired the block known as 441-447 Manila Avenue, and Marin LLC acquired the block known as 437 Luis Munoz Marin Boulevard. Both properties contain sections of the Sixth Street Embankment (embankment), which was constructed between 1895 and 1905 to provide rail access to the Jersey City waterfront. The embankment consists primarily of stone walls used to elevate the rail line, and is approximately 100 feet wide and spans six city blocks. The tracks and the bridges connecting portions of the embankment intersected by cross streets were removed after the rail line was decommissioned in 1995.


Because the history of redevelopment plans in the area is relevant to this appeal, we outline the planning and development background of the areas involved in this appeal. In 1975, Jersey City's governing body, the Municipal Council, adopted the "Grove Street NDP Area Redevelopment Plan" (Grove Street Plan) and the "Luis Munoz Marin Boulevard Redevelopment Plan" (Marin Plan) for the purpose of rehabilitating designated areas of land. After the Grove Street was adopted, the street was renamed Manila Avenue, but the Plan itself was not renamed.

Both of the redevelopment areas run north to south and each encompasses a portion of the embankment, which runs east to west. The Grove Street Plan area is between Erie Street and Manila Avenue. The Marin Plan area is between Manila Avenue and Marin Boulevard. The Grove Street Plan includes 441-447 Manila Avenue, and the Marin Plan includes 437 Marin Boulevard.

The Grove Street Plan refers to five permitted land uses in the redevelopment area: (1) thoroughfares and streets; (2) public use; (3) semi-public use; (4) residential use; and (5) commercial use. The Marin Plan mentions three permitted uses: (1) residential use; (2) public and quasi-public use; and (3) railroad use "as per the current activity." It included "[a]additional regulations, controls or restrictions" for the residential, public and quasi-public uses, but not for the railroad use. Although other property was to be acquired as part of the plans, neither plan proposed the acquisition of the railroad property.

In 1998, Jersey City's Planning Board issued the "Report Concerning the Determination of the Proposed Sixth Street Study Area as 'An Area in Need of Redevelopment.'" The Sixth Street area, which runs east to west, consists of the former railroad right-of-way, including the properties at issue in this appeal. The report suggested that those two properties "be taken out of [the Grove Street and Marin Plans] and made part of the Sixth Street Study area and Sixth Street Redevelopment Plan area." In a subsequent resolution concerning the findings of the report, the Jersey City Planning Board noted that "the area is presently essentially zoned R-2 under the zoning ordinance" and suggested that the embankments "be replaced with a use more compatible with the character of the neighborhood."

The report was presented to the Municipal Council, which passed a resolution "find[ing] that the Sixth Street Study Area meets the criteria established by [N.J.S.A. 40A:12A-5(b), (d) and (e)] and . . . [t]hat these lots be, and hereby are, declared in need of redevelopment." However, the Council never enacted an ordinance adopting a redevelopment plan for the Sixth Street Study Area.


On September 6, 2005, plaintiffs wrote to Anthony Lambiase, whom they characterized as Jersey City's "Zoning Officer," to request an opinion concerning the zoning of the Manila and Marin properties. In a letter dated September 21, 2005, which he signed as "Zoning Official," Lambiase responded that, because the redevelopment plans were silent as to the reuse of the former railroad bed, both parcels were zoned as "R-1" for residential zoning.

In November 2005, Manila LLC filed an application seeking planning approval to build one and two-family housing on the Manila property.*fn2 The proposed housing was consistent with the R-1 zoning use that Lambiase had advised Manila LLC was applicable to the property. However, in December 2005, Jersey City's Division of City Planning advised Manila LLC that its application was incomplete because it had listed the zoning as R-1 residential, rather than zoning consistent with the Grove Street Plan.

In a letter dated March 1, 2006, Barbara Netchert, Director of the Department of Housing, Economic Development and Commerce, advised Manila LLC that her duties included those of "Zoning Officer" and that Lambiase's earlier ruling was incorrect. Netchert asserted that the Grove Street and Marin Plans "superceded [sic] all prior zoning designations and remove[d] any ambiguity that may possibly have existed in the past about whether some of Jersey City's oldest redevelopment plans constitute an overlay zoning district or instead supercede [sic] the city's development regulations." She further asserted that both plans designated the properties at issue as "railroad use" and that those designations had not been altered by the Municipal Council since the railroad lines were abandoned.

On April 19, 2006, Manila LLC requested that Netchert reconsider her decision. Manila LLC wrote again on May 16, 2006, requesting a zoning permit, pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -92, establishing that the property was located in a R-4 residential zone, which also permits one and two-family residential units.

Netchert replied to the April and May letters in a letter of May 26, 2006. She again asserted that the Manila property was governed by the Grove Street Plan and reiterated the positions set forth in her March 1 letter. She also stated that Manila LLC was not prevented "from following in a timely manner any rights of appeal."

On June 13, 2006, plaintiffs appealed to the Zoning Board, pursuant to N.J.S.A. 40:55D-70(a) and -72(a), and requested that their appeals be consolidated. Plaintiffs argued that Netchert's determination that the Manila and Marin properties were zoned for railroad use only under the governing redevelopment plans was incorrect, asserting that they were zoned for residential use. Although the Board took the position that the appeals were untimely because they actually concerned the ruling made by Netchert in her March 1 letter, plaintiffs argued that their appeals were from Netchert's letter of May 26, 2006, and were therefore filed within the twenty-day time to appeal under N.J.S.A. 40:55D-72(a). The Board voted unanimously to affirm Netchert's decision, but also noted its position that the appeals were untimely.


Plaintiffs filed a complaint in lieu of prerogative writs on October 10, 2006, appealing the Board's affirmance of Netchert's decision as to both properties. Judge Maurice J. Gallipoli heard oral argument on April 2, 2007, and issued a written opinion on June 25, 2007.

In his opinion, Judge Gallipoli found that the designation of the property for railroad use on the zoning maps attached to the redevelopment plans referred solely to the use of the property at the time the map was created, and that the designation "did not affect the underlying zone locations, which were zoned for residential use." He concluded that both the Manila and Marin properties were located in residential zones, and that residential development would be "consistent with the use of other land in the area" and the objectives of the applicable redevelopment plans. He further concluded that the Board erred in determining that the properties were zoned exclusively for railroad use. An order reversing the decision of the Board was filed on July 2, 2009.

This appeal followed.


Public bodies, such as municipal zoning boards of adjustment, are allowed wide latitude in exercising their delegated discretion because of their particular knowledge of local conditions. Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005). The scope of judicial review is to determine whether a zoning board of adjustment could reasonably have reached its decision on the record before it, not whether a better decision could have been made by the board. Ibid. The reviewing court is not to substitute its own judgment for that of the board. Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004). Assuming an adequate basis existed in the record for the zoning board's conclusions, deference to its judgment is generally appropriate. Lang v. Zoning Bd. of Adjustment of North Caldwell, 160 N.J. 41, 58 (1999).

A trial court's role is generally to determine whether the zoning board's decision was "arbitrary, capricious, or in manifest abuse of its discretionary authority." Jock, supra, 184 N.J. at 597. However, the deference accorded to the zoning board's judgments is not limitless, and determinations of law are subject to de novo review by a trial court. Fallone Props.,

L.L.C., supra, 369 N.J. Super. at 561.

An appellate court applies the same standard of review as the trial court. N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). "[T]he appellate court will give substantial deference to findings of fact, and will overturn discretionary rulings only if arbitrary and capricious." William M. Cox, New Jersey Zoning and Land Use Administration § 33-4 (2010). Special deference is not shown to the trial court's interpretation of the law and the legal consequences that flow from established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).


Having reviewed the issues raised on appeal in light of the record and the applicable law, we affirm substantially for the reasons expressed by Judge Gallipoli in his cogent opinion. We add the following.


We find no merit in defendants' argument that the appeals were from Netchert's March 1, 2006 letter and, therefore, untimely because not brought within the twenty days required by N.J.S.A. 40:55D-72(a).

The twenty-day time period "runs from the date an interested party knows or should know of the action of an administrative officer." Sitkowski v. Zoning Bd. of Adjustment of Lavallette, 238 N.J. Super. 255, 260 (App. Div. 1990) (citing Trenkamp v. Twp. of Burlington, 170 N.J. Super. 251, 268 (Law Div. 1979)). The purpose of this short time limit is to "insulate the recipient of a building permit or other favorable disposition from the threat of unrestrained future challenge. It was intended to provide a degree of assurance that the recipient could rely on the decision of the administrative officer." Ibid.

Those considerations are not applicable here. It is true that plaintiffs knew about Netchert's decision when it received her March 1, 2006 letters. However, because her letters sua sponte overruled the earlier, contrary decision by Lambiase, it was reasonable for plaintiffs to explain their reasons for disagreeing and to seek reconsideration before appealing to the Board. Plaintiffs' appeal was filed in a timely manner after Netchert finally responded, on May 26, 2006, to their two requests for reconsideration.


With respect to the merits of the decision, the judge correctly relied on Dumont Lowden, Inc. v. Hansen, 38 N.J. 49, 54-55 (1962) in interpreting the zoning implications of the railroad designations found in the Grove Street and Marin plans.

We are satisfied that the zoning map of Dumont may not reasonably be read as having left the 17-acre West Shore R.R. Co. tract entirely unzoned. The map purported to zone the entire borough and it contained nothing which evidenced anything to the contrary. The fact that public premises such as schools, parks and firehouses were designated as such did not mean that they were on unzoned properties; on the contrary, the designations simply referred to current uses and did not affect the underlying zone locations which were controlled by the map legend. See Appley v. Bernards Twp., [128 N.J.L. 195 (Sup. Ct.), aff'd, 129 N.J.L. 73

(E. & A. 1942)]. Similarly, the West Shore R.R. Co. designation on the 17-acre tract simply referred to its then railroad use, and did not alter the fact that in conformity with the map's legend, its solid white background placed the tract within the District A residence zone. If any of the neighboring residents had studied the map at the time of the passage of the zoning ordinance, they presumably would have concluded that the tract, though then properly used for railroad purposes, was in the District A residence zone and would be controlled by the limitations of that zone in the event the railroad use ever ceased.

They certainly would not have concluded that upon cessation of the railroad use the tract would be entirely unzoned and thereby usable for business or industrial purposes even including those distasteful uses which are specifically excluded from the business and industrial zones by the terms of the ordinance. [Ibid.]

The Board seeks to avoid the holding in Dumont Lowden by arguing that both properties were actually zoned for "railroad use," as opposed to being either part of an underlying residential zone or unzoned. We are not convinced. First, that argument would only apply, if at all, to the Marin Plan, which is the only one that refers to a "railroad use" in the text of the plan. Second, railroad use is not a zoning category in general use, and it is not included in Jersey City's general zoning ordinance.

Third, the Planning Board's resolution adopting the report concerning Sixth Street Study Area states that "the area is presently essentially zoned R-2 under the zoning ordinance." While we agree with the Board that the Municipal Council's failure to adopt an ordinance to implement a Sixth Street Redevelopment Plan left the two properties at issue in their original redevelopment areas, we find the Planning Board's understanding of the zoning situation for the Sixth Street area, which encompasses the embankment, to be significant.

Fourth, the Board's argument that the redevelopment plans actually rezoned the whole area, including a "railroad zone," is not persuasive. The Board relies on Section 345-38 of the Jersey City Code of Ordinances, which provides that

[i]n any area officially declared and delineated as a redevelopment area by duly adopted ordinances, the standards and designations contained in the Redevelopment Plans for such legally adopted Plans shall take precedence over any standards contained in this Chapter. Where the standards and controls of the Plans do not provide alterations to the provisions of this Chapter, those provisions of this Chapter that remain unchanged shall prevail. [Jersey City, N.J., Zoning Ordinance § 345-38 (2009) (emphasis added).]

Although the Board argues that the quoted language applies to the actual zoning of the property, we conclude that the language actually relates to issues such as density, set backs and other requirements for building in the applicable zone. Thus, while neither plan mentions anything about actual changes in zoning, they both set forth specific requirements such as density, set backs, and similar land-use issues.

Consequently, Judge Gallipoli correctly determined that the designation of the properties for railroad use by the redevelopment plans "did not affect the underlying zone locations, which were zoned for residential use." Relying on facts in the record, he noted that "the 247 Manila property was designated for railroad use but located within the R-2 residential zone, and the 212 Marin property was designated for railroad use and located in either an R-1 . . . or R-4 residential zone according to the underlying zoning."

While redevelopment plans may alter zoning, N.J.S.A. 40A:12A-7(c), "a redevelopment plan, by its terms, must indicate whether it supersedes local zoning ordinances within the redevelopment area or whether it constitutes overlay zoning." Weeden v. City Council of Trenton, 391 N.J. Super. 214, 225 (App. Div.), certif. denied, 192 N.J. 73 (2007) (emphasis added) (stating that statutorily authorized overlay zoning "leaves in place the existing zoning regulations applicable to an area, but superimposes an additional set of requirements," while superseding zoning requires an amendment to the district zoning map). The redevelopment plans did not change the residential zoning of the properties, although they did change the parameters of the permitted uses in the redevelopment area.

Consequently, there was overlay residential zoning rather than complete supercession of the underlying residential zoning by a "railroad use." Residential use is fully consistent with the objectives of both the Grove Street and Marin Plans, and with the actual uses in the surrounding area.


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