February 8, 2011
LARRY PRICE, PLAINTIFF-APPELLANT,
RAFFI ARSLANIAN AND UNION CITY ZONING BOARD OF ADJUSTMENT, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2059-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 30, 2010
Before Judges Graves and Waugh.
Plaintiff Larry Price appeals from a Law Division order affirming a decision by the Union City Zoning Board of Adjustment (the Board), which granted site plan and variance approval to defendant Raffi Arslanian (Arslanian or the applicant). For the reasons that follow, we affirm on the merits but remand for further factfinding with regard to plaintiff's claim that one of the Board members was not qualified to vote on the application.
Arslanian is the sole owner of property located at 2300 Summit Avenue, Union City (the property). The property is 102.2 feet wide and 98.2 feet deep, and is currently zoned for "I, Light Impact." Permitted uses include "light impact industr[y], [research and development] labs, data processing centers, fully enclosed wholesale and storage establishments, printing establishments and heavy retail and service commercial establishments." A two-story warehouse is located on the property.
Arslanian seeks to renovate the warehouse for mixed commercial and residential uses, and his application requested use, height, density, parking, and bulk variances. The Board heard Arslanian's application on January 8, 2009, and February 26, 2009.
Manny Pereiras (Pereiras), an architect, was the first of three expert witnesses to testify on the applicant's behalf. Pereiras stated that Arslanian sought to transform the structure's "shell" into a three-floor "eco friendly concept."*fn1
The first floor would consist of 5050 square feet of commercial space, divided into "five units, each with their own independent storefront." An additional 6117 square feet of commercial space would be constructed on the second floor. Furthermore, a newly-constructed third floor would add 9186 square feet of residential space, divided into ten two-bedroom units.
Pereiras further testified the building would be converted from a "hodge-podge of masonry" into an "attractive fa§ade" of brick, metal, synthetic stucco, and glass. Moreover, even with the addition of the residential space, the property will still remain "the lowest along the [surrounding] area." Pereiras concluded that the building would "blend in very well" to the surrounding architecture.
Craig Peregoy (Peregoy), a traffic engineer, acknowledged that "there's a lot going on in the area" because a high school, vocational school, and residential developments were being constructed in the vicinity. Taking those projects into consideration--and "[coming] up with a worst case scenario"-- Peregoy concluded that there would be an "insignificant increase in traffic" if Arslanian's application was approved. Peregoy also testified that "a big benefit of the project" is the net gain of twenty parking spaces: eleven within the property for the residential apartments and nine on the street.
Defendant's final witness was Michael Kauker (Kauker), a professional planner. He testified that the property is at the "extreme northerly edge" of the I, Light Impact zone. According to Kauker, the surrounding properties have "transitioned from [industrial] to residential," and the property at issue remains one of the last non-residential uses in the immediate area. Accordingly, Kauker concluded the renovation would "complete the pattern of residential development" and would be consistent with the "revitalization and redevelopment" that was taking place in the area.
The Board voiced concern at the public hearing on January 9, 2009, regarding the size of three of the apartments and the fact that there was unrestricted elevator access to the apartments. Arslanian submitted a revised application and, after a public hearing on February 26, 2009, the Board approved the modified application by a 5-0 vote. A formal resolution was adopted on March 12, 2009.
On April 22, 2009, plaintiff filed an action in lieu of prerogative writs limited to the Board's approval of a use variance pursuant to N.J.S.A. 40:55D-70(d)(1) (a D-1 variance).
Based on the record before the Board, the trial court affirmed the resolution granting the D-1 variance and dismissed plaintiff's complaint on December 22, 2009.
Plaintiff presents the following arguments for our consideration:
THE LACK OF A TRIAL.
THE OPINION OF THE TRIAL JUDGE.
ADEQUATE SPECIAL REASONS WERE NOT GIVEN FOR THE D-1 USE VARIANCE.
THERE WAS NO ENHANCED QUALITY OF PROOF FOR THE D-1 USE VARIANCE.
THE ROLE OF EXPERTS.
THE APPROVAL VOTE INCLUDED THE VOTE OF A DISQUALIFIED MEMBER (Issue not raised below).
We are satisfied from our examination of the record and applicable law that the matter was correctly decided by the trial court. Nevertheless, because the record does not convincingly resolve whether a member of the Board, Justin Mercado (Mercado), was a resident of Union City on the date of the vote, we affirm subject to further factfinding on this limited issue.
"[W]hen reviewing the decision of a trial court that has reviewed municipal action, [the Appellate Division is] bound by the same standards as was the trial court." Fallone Props., L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). Thus, review turns on "whether the grant or denial was arbitrary, capricious or unreasonable," id. at 560, and "is founded on adequate evidence," Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990).
As a starting point, the decision of a board of adjustment is entitled to a presumption of validity. Kramer v. Bd. of Adj., 45 N.J. 268, 296 (1965). However, less deference is afforded to decisions that grant, rather than deny, a D-1 use variance. Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 208 (App. Div. 1999); see also Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 275 (1967) ("Variances to allow new nonconforming uses should be granted only sparingly and with great caution since they tend to impair sound zoning."). Thus, the board of adjustment cannot, "in the guise of a variance proceeding, usurp 'the legislative power reserved to the governing body of the municipality to amend or revise the [zoning] plan.'" Feiler v. Fort Lee Bd. of Adj., 240 N.J. Super. 250, 255 (App. Div. 1990) (quoting Leimann v. Bd. of Adj., 9 N.J. 336, 340 (1952)), certif. denied, 127 N.J. 325 (1991).
N.J.S.A. 40:55D-70 governs the grant of use variances. In pertinent part, the statute provides:
The board of adjustment shall have the power to:
d. In particular cases for special reasons, grant a variance . .. to permit:
(1) a use or principal structure in a district restricted against such use or principal structure . . . .
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.
Accordingly, the statute "requires an applicant to prove both positive and negative criteria to obtain a use variance." Smart SMR v. Fair Lawn Bd. of Adj., 152 N.J. 309, 323 (1998). The positive criteria require an applicant to demonstrate "special reasons" for the variance. Sica v. Bd. of Adj., 127 N.J. 152, 156 (1992). When the purposed use is not inherently beneficial,*fn2 an applicant must generally prove that "the use promotes the general welfare because the proposed site is particularly suitable for the proposed use." Medici v. BPR Co., 107 N.J. 1, 4 (1987). To satisfy the negative criteria, an applicant must prove that the variance "can be granted without substantial detriment to the public good." N.J.S.A. 40:55D-70; see also Sica, supra, 127 N.J. at 156. An applicant must also establish through "an enhanced quality of proof . . . that the grant of a use variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici, supra, 107 N.J. at 4.
In the present matter, plaintiff contends that Arslanian failed to prove both the positive and negative criteria to obtain a D-1 use variance. We do not agree.
With respect to the positive criteria, Kauker testified that the property's distinctive location warranted its transition from industrial to mixed use:
The property itself is located in the [I, Light Impact zone]. It's uniquely situated right at the extreme northerly edge of that [zone].
The corner property, which is the subject, would be the last remaining [industrial] property on that northerly edge, so as to complete the pattern of residential [development] along that northerly edge.
Immediately across the street from the subject property is where the [residential] zone commences, and proceeds in a westerly fashion.
So, as you proceed to the west, essentially, that residential edge is reestablished.
[W]hat we're attempting to do is establish a mixed use, a node at the corner which is responsive to the need that's developed by virtue of the activities that are evolving in this area, such as the high school, the vocational school, the current development of . . . a hundred unit high rise project, a block and a half away.
[W]hat you have evolving in this neighborhood . . . is a significant amount of revitalization and redevelopment in a form of residential activity and public serving activities, that create a need for a neighborhood service commercial mode, so as to not have people go all the way over to the boulevard to be serviced by commercial neighborhood activities.
The Board credited Kauker's testimony and incorporated his findings into its resolution:
The Board finds and determines that the Applicant satisfied [his] burden in showing that "special reasons" existed for the Board to exercise its jurisdiction in granting the relief requested. It is not disputed that the applicant's proposed use was not inherently beneficial. Thus, the applicant was required to prove and did prove to the Board that the general welfare will be served because the use is peculiarly fitted to the particular location for which the variance is sought. . . .
[T]he subject site is particularly fitted to the proposed use since . . . [there is a] need for newer housing and commercial space, for which there is a demand to the transition . . . . The City's housing needs must be acknowledged and taken into consideration. The Board also accepts [Kauker's] credible testimony that there are no available parcels of land for the proposed development in other locations and zones where it is permitted.
It is the position of the Board of Adjustment that the Applicant's unrefuted expert testimony coupled with the aforesaid analysis supports the finding that the Applicant satisfied the positive criteria of the use variance.
Moreover, with regard to the negative criteria, the 2008 Union City Draft Master Plan (DMP), which was subsequently adopted in April 2009, includes specific findings and recommendations regarding the area where the property is located, Area #3:
A number of industrial and commercial uses in this area are slowly becoming inactive and are in transition into other uses. A strong trend towards multi-family residential housing can be clearly [seen] within the area and this trend also seems to be most beneficial to the area because of its strong connection with . . . two solid residential areas in the north and another in the south . . . . These characteristics make this area perfect for allowing the transformation into residential to continue. . . . [(Emphasis added).]
Kauker testified that the proposed use of the property was consistent with the DMP:
The project itself is consistent with your proposed draft Master Plan, from a point of view that it meets the following paragraph, as described in the Master Plan draft.
And that paragraph reads for the area number 3 . . . it recommends that the land use patterns adjust the existing zoning to enable industrial uses to transition into residential uses, which is exactly what's being done with this particularly proposed project.
The enhanced quality of proof is established for this application, by virtue of the fact that we are directly complementary to, and compliant with the new Master Plan, which specifically states that this particular area should be the subject of additional residential development, and a minimization of the existing, I, industrial use activities.
That, in and of itself, establishes a compatibility with the Master Plan.
Once again, the Board again accepted Kauker's testimony and findings:
The Board accepts the opinion of [Kauker] that the proposed project carries out a purpose of zoning.
The Board has taken a deliberate and exhaustive approach in making sure that the proposed development would not substantially impair the intent and purpose of the zone plan and zoning ordinance. The Board further reconciled the proposed use variance with the zoning ordinance's omission of the use from those permitted in the district.
It is the Board's opinion that it has not usurped the authority of the governing body in the approval of the subject application. While the Board acknowledges that zoning changes should ordinarily be by ordinance and that variances [are] the exception, the Board recognizes that the zone in question has become a de facto residential area .
The Board accepts the applicant's witnesses that the variances sought are not inconsistent with the intent and purpose of the master plan and zoning ordinance thereby satisfying "the enhanced quality of proof burden" that is required. . . . The Board is satisfied that the redevelopment of the site from a warehouse into mixed use of residential and commercial would not change the character of the neighborhood or would be a detriment to the zone plan. In fact, the proposed use is consistent and compatible with the other uses in the surrounding area.
The trial court determined that the Board's findings and conclusions were supported by adequate credible evidence and, based on our independent review of the record, we concur. Because the property is the last industrial use in the northern edge of the I, Light Impact zone, it is particularly suitable for the proposed use, which will continue the "revitalization and redevelopment" that has been taking place. Moreover, the testimony provided by Kauker established that the D-1 variance is not inconsistent with the master plan. See Hawrylo v. Bd. of Adj., 249 N.J. Super. 568, 579 (App. Div. 1991) (stating that a board of adjustment "is free to accept or to reject the opinions of [an expert] proffered by an applicant or objector").
In his final point, plaintiff argues for the first time that Mercado, a member of the Board, was not a resident of Union City when the Board granted Arslanian a D-1 variance by a 5-0 vote--the minimum for passage pursuant to N.J.S.A. 40:55D-70(d). Therefore, according to plaintiff, "the application fails" because Mercado's vote should be disqualified. In response to plaintiff's allegation, the Board requested the Hudson County Board of Election (BOE) to conduct an investigation into Mercado's residency. The BOE concluded that Mercado resided in Union City "in early February 2010." However, the Board voted in favor of Arslanian's application on February 26, 2009--one year prior to the BOE's finding.
Plaintiff contends that he was unable to present this issue to the trial court because he learned of the discrepancy in Mercado's residency after his appeal was filed. Generally, we do not consider issues raised for the first time on appeal. Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). However, given that the residency issue arose after the trial court's decision and the public interest in zoning matters, a remand for further factfinding is appropriate. See Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 56 (1998) (recognizing that a "zoning board '[has] a substantial public interest in preserving the integrity of the zoning ordinance'") (quoting Zoning Bd. of Adj. v. Datchko, 142 N.J. Super. 501, 508 (App. Div. 1976)).
In view of the foregoing, we affirm on the merits, subject to a remand to the Law Division for the limited purpose of determining Mercado's residency on the date of the vote, February 26, 2009, and the legality of the Board's resolution. Jurisdiction is not retained.