On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4564-09.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 9, 2010 - Decided Before Judges Parrillo, Yannotti and Espinosa.
The opinion of the court was delivered by
Plaintiff, Larry Price, who was successful in the Law Division in having the Union City Zoning Board of Adjustment's (Board) resolution in favor of defendant, Hudson Heights Development, LLC (Hudson Heights or defendant), declared null and void, appeals, voicing dissatisfaction with the court's rationale, not its final result. Lacking the requisite adversity and genuineness of controversy, and because appeals are taken from judgments and not from opinions, the instant appeal is dismissed for want of jurisdiction.
Briefly, by way of background, plaintiff is a resident and taxpayer of Union City, where Hudson Heights owns property on 37th Street that it seeks to develop. Because the property is located in a mixed residential zone, which does not permit multi-family development, a use variance is required to implement defendant's plan to demolish an existing residential structure and construct in its stead a multi-family building.
To this end, on December 23, 2005, Hudson Heights filed an application with the Board seeking approval to build an eight-story multi-family structure consisting of 96 residential units and 121 off-street parking spaces.*fn1 A public hearing on the proposal was held on January 12, 2006. The Board approved the application and a memorializing resolution was adopted on February 9, 2006. No appeal was ever filed challenging the Board's action in approving defendant's site plan application.
On July 12, 2006, Hudson Heights filed a new application, seeking site plan and variance approval to construct a four-story, forty-eight unit multi-family residential building on the same property. Following a public hearing on the proposal, the Board approved the application and adopted a memorializing resolution on October 12, 2006.
Thereafter, plaintiff filed a timely complaint in lieu of prerogative writs, seeking to invalidate the Board's approval of defendant's forty-eight unit plan. Following a hearing, the Law Division dismissed plaintiff's complaint. Plaintiff appealed and we reversed, holding that the Board incorrectly applied the "D3" conditional use variance standard rather than the proper standard of a "D1" use variance, and remanding the matter to the Board for reconsideration. Price v. Hudson Heights Development, LLC, No. A-4766-06T1 (App. Div. Dec. 8, 2008). Hudson Heights took no further action with respect to its forty-eight unit application and thus no final approvals were obtained.
During the pendency of that appeal, Hudson Heights requested and received two one-year extensions on the site plan and variance approval that it had previously obtained from the Board for the ninety-six unit project. The first was granted on April 12, 2007 and the second was granted on May 8, 2008.*fn2
However, on January 7, 2009, defendant filed yet another application with the Board, this time seeking major subdivision, site plan and variance approval for the construction of eight three-family homes on the same property. After a public hearing on the proposal, the Board approved the application and adopted a memorializing resolution on February 24, 2009.
Hudson Heights did not take any additional steps to perfect the major subdivision plan and no permits were issued in furtherance of that project. Instead, defendant reverted to its original plan to develop its property as an eight-story, ninety-six residential unit structure. To effectuate that plan, defendant sought building permits from the Union City Building Department, but when the construction code officer noticed multiple approvals for the same property, he consulted with David Spatz, the City Planner, before issuing any permits. Spatz, questioning whether the original approvals were still valid, instructed defendant to seek advice from Thomas Sarlo, the Board's attorney, which defendant did via letter of July 28, 2009. Although Spatz opined that defendant's approval for the ninety-six unit structure had not expired because of the interim extensions and applicability of the Permit Extension Act, all agreed that defendant should formally request clarification from the Board. As a result, the matter was listed on the Board's July 30, 2009 agenda as an "interpretation," N.J.S.A. 40:55D-70(b), and, on that date, the Board confirmed that defendant's original approval was still valid.
Plaintiff then filed another complaint in lieu of prerogative writs, seeking to invalidate the Board's July 30, 2009 action on the ground that defendant abandoned its ninety-six residential unit plan by its subsequent applications. At the conclusion of trial on November 6, 2009, the Law Division judge declared the Board's July 30, 2009 determination null and void, concluding that the Board "had no authority to hear this ...