On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-3389-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Alvarez.
Plaintiffs Louis and Marissa Picardo appeal from a March 2, 2010 order of the Law Division dismissing their complaint in lieu of prerogative writs against defendant Zoning Board of Adjustment of the City of Hoboken (Board).*fn1 We affirm.
The Picardos own a small apartment building located on Castle Point Terrace in Hoboken, an area currently zoned for one- and two-family houses. The Picardos contend that, before the zoning ordinance was amended in 2005 to reduce the number of allowable units to a maximum of two, they had five pre-existing units in their building. They contend that the five-unit apartment building was a pre-existing non-conforming use. The majority of the building was two stories, with a small partial third story at the front of the structure. The Picardos live in an apartment on the second floor.
In 2007, the Picardo's decided to expand their apartment by adding two bedrooms, a laundry room, two bathrooms and an elevator. The expansion required extending the building's existing partial third story to cover the entire second story. Instead of seeking a variance to expand their pre-existing non-conforming use, the Picardo's simply applied for a construction permit.*fn2 On July 3, 2007, the City's acting zoning officer issued a first certificate of zoning compliance, and the construction official issued a construction permit on January 22, 2008.
Soon after plaintiffs commenced construction, their neighbors, Julian and Gretchen Brigden, filed suit to stop the construction. By order dated April 1, 2008, Judge Gallipoli remanded the matter to the Hoboken Zoning Board and directed the Brigdens to file with the Board "any appeals" from the determinations of the local zoning and construction officials approving the construction.
The Board issued a stop work order. Following a hearing on April 15, 2008, the Board also issued a decision on May 20, 2008, concluding that the Picardos needed a variance to expand their prior non-conforming use. According to the Board's May 20 decision, witnesses who testified at the hearing, including the Picardos' architect, described the building as having three apartments. Both the architect and the zoning officer claimed they did not know that the area had been down-zoned to only allow one and two family houses. Mr. Picardo, who was the former Hoboken tax assessor, did not testify at the hearing to explain that he acted under such a misunderstanding, if that was the case.
Following the Board's May 2008 decision, the Picardos filed the application for variance relief which gave rise to this appeal.*fn3 Contrary to the evidence at the April hearing, the June 2, 2008 variance application described the existing structure as having five units. The application sought a variance to expand a nonconforming use, N.J.S.A. 40:55D-70d(2), and a bulk variance under N.J.S.A. 40:55D-70c(2), to allow a smaller side yard setback on one side. In the application, the Picardos admitted that they could expand their own apartment without adding to the dimensions of the building by "reclaiming one of the other units in the building." However, the application stated that "they [did] not wish to affect the lives of those residents."
The Board held several days of hearings on the application. One of the issues that arose at the hearing was the number of apartments in the building. The Picardos had changed architects after the April Board hearing, and their new architect, Russell Bodnar, testified that he had inspected the building and it had five apartments. Through their attorney, the applicants produced leases for four of the apartments, purporting to show that all four apartments had been continuously rented to tenants since before the 2005 zoning amendment. However, their counsel conceded that the Picardos had not obtained certificates of occupancy for these apartments, as required by Hoboken's municipal ordinance.
The Board members repeatedly asked that Mr. Picardo testify about the number of units in the building. The objectors' attorney did so as well, and asked the Board to draw a negative inference if he did not testify, pursuant to State v. Clawans, 38 N.J. 162, 170-71 (1962). However, Mr. Picardo did not testify.
The applicants presented the following additional testimony in support of their application. According to their planning expert, Edward Kollar, the building is in a historic district of Hoboken. He confirmed that the historic, peaked fa§ade of the building would not be affected by the addition, which would not be visible from the front of the building. He agreed that the addition ...