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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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: