July 19, 2011
MICHAEL CAPPELLUTI AND ISABELLA CAPPELLUTI, PLAINTIFFS-APPELLANTS,
CITY OF UNION CITY PLANNING BOARD AND ANTHONY R. MAUTONE, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3977-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 29, 2011 -
Before Judges Payne, Koblitz and Hayden.
On March 1, 2004, defendant, Anthony Mautone (developer), applied to defendant, Union City Planning Board (Board), for minor subdivision approval*fn1 and variances, pursuant to N.J.S.A. 40:55D-70c(1) and (2), that would permit him to construct two three-story, three-family houses at 207-209 Manhattan Avenue.
The property is also known as Lots 15 and 16, Block 191.01 on the Tax Map of the City of Union City, New Jersey. The variances sought for Lot 15 were for lot area, lot width, lot depth, side yard (one side), rear yard, and building coverage. The variances sought for Lot 16 did not include lot depth, but otherwise were the same.
The application was opposed by neighbors and other city residents, including plaintiffs, Michael and Isabella Cappelluti, who own a single-family home situated on Palisades Avenue that backs on the land to be developed. As the result of the construction, the Cappellutis will lose a substantial portion, if not all, of any view of the Manhattan skyline that they previously enjoyed from the rear of their house. The lots themselves are nonconforming, one being twenty- five feet by eighty-five feet and the other being twenty-five by one-hundred feet. Each was comprised of approximately one-half of the lot area required by zoning ordinances applicable to the R-1 zone in which the property was situated. An abandoned house is presently located on one of the lots; the other is vacant. The developer proposed that that the buildings to be constructed extend to within five feet of the rear lot line, whereas a twenty-five foot set-back was required, and to extend to within three feet of the side lot lines. The two buildings would be joined together. Nine parking spaces would be provided for each building, with four under the building at ground level, two on the apron and three would be across the street.
The application has been extensively litigated. Following an initial approval of variances*fn2 by the Board, the Cappellutis brought an action in lieu of prerogative writs, which was dismissed by the trial court. On appeal, we reversed, finding that a Planning Board member had participated in voting on the matter after having recused himself. Cappelluti v. City of Union City Planning Bd., No. A-5876-04 (App. Div. June 6, 2006) (slip op. at 12-17). Additionally we found that the Board's resolution was inadequate, in that its factual findings and legal conclusions were insufficiently specific, and the resolution failed to specify what variances were being granted. Id. at 21. Further, we found that the resolution failed to mention either the positive or negative statutory criteria of N.J.S.A. 40:55D-70c, although the witnesses at hearings in the matter had testified to those criteria. Id. at 21-22.
Upon remand, the Board held further hearings and ultimately approved the variances in a resolution dated March 27, 2007. However, when the resolution was again challenged in an action in lieu of prerogative writs, Judge Shirley Tolentino found the resolution to be deficient under the standards we had previously articulated. She thus remanded the matter, with instructions to comply with our opinion and to produce "more specific findings." Following further consideration, on July 28, 2009, the Board issued a more detailed resolution granting the requested variances. When the matter came again before Judge Tolentino, she affirmed the decision of the Planning Board in a written opinion.
This appeal followed. Again, the Cappellutis attack the Board's resolution and argue that the Board's decision is not supported by the evidence.
The Board's July 2009 resolution provided:
WHEREAS, The Board, after carefully considering the evidence presented by the applicant and [by] the adjoining property owners and there was a public hearing conducted on November 28, 2006, where as the testimony of the witnesses was heard under oath, the reports examined, the witnesses questioned by the Board, the exhibits described, the public testimony heard and the application prosecuted, the Board has made the following factual findings:
1. The Applicant is the owner of 207-209 Manhattan Avenue, Union City, New Jersey.
2. The Board acquired jurisdiction for a hearing upon the filing of the application and that the Applicant has properly published the notification of said hearing and notified the property owners, which proof of publication and notification are on file with the Board.
3. The Applicant submitted plans and other information and presented the testimony of the Applicant and/or witnesses.
4. The Applicant wishes to construct two three family homes as well as seeking a minor subdivision. The proposed building will be owner occupied. Mr. Izquierdo gave expert opinion that [it] furthers the master plan in that it promotes the family structure. Mr. Izquierdo testified that it promotes the general welfare and cities prosper from stable families raising children.
5. Based on the application, Mr. Izquierdo, and other witnesses at the hearing the Board finds that the proposed project consists of two lots; one consists of a home that has been abandoned for a number of years and the other is a irregular lot (25x85) that is vacant and undeveloped.
6. There already exist a significant number of properties consisting of multiple dwellings on Manhattan Avenue. Mr. Izquierdo gave a very precise description of the character of the neighborhood and surrounding properties. Mr. Izquierdo testified that approximately 88% of the properties in this area consist of multiple dwelling three family or more. Mr. Izquierdo testified that architecturally, with a very modern and contemporary, and trendy look the proposed project conforms to the neighborhood standards. The Board found Mr. Izquierdo's testimony very credible.
7. The size and height of the new construction is within the prevailing norm for structures in this area. Mr. Izquierdo testified that the proposed project would be 39 feet or three stories. The proposed construction will be one full story lower than the adjacent building. The record reflects that many properties in the neighborhood have been granted similar side yard and backyard variances. Mr. Izquierdo testified that by attaching the two structures it leaves three feet and one inch on either side as well as a five foot rear yard, and thus does not encroach on any of the neighbors.
8. The new construction provides nine parking spaces for each three family house for a total of eighteen parking spaces; each house will have four parking spaces on the ground floor and 2 on the apron. The Board's expert, Mr. Spatz, testified that parking is allowed in an R-1 zone as a accessory use exclusively for the storage of the residents on the premises [sic]. Mr. Izquierdo testified that the proposed project provides parking for a husband and wife, as well a daughter or visitor. The project provides sufficient parking and will not cause congestion.
9. There is sufficient space for access by Fire Department and other emergency vehicles. Mayor Stack ordered a fire drill on that block and confirmed that a ladder unit could adequately access the area.
10. The Board recognizes the new construction will have a detrimental effect on light, air, and privacy. Mr. Izquierdo presented architectural drawings and photographs that demonstrate that the fact that the proposed building is one full story lower offsets any potential encroachment. Mr. Izquierdo also stated that the proposed project used window alignment to increase privacy and diminish potential encroachment.
11. Mr. Izquierdo testified that Manhattan Avenue is the highest point on the
[P]alisades with unimpeded views of the New York skyline and Hudson River that make this a unique location. The proposed project maximizes this unique location and is designed to maximize the view making this project location [sic] and making it a very aesthetically attractive place to live. The Board finds this unique location to be sufficient special reasons to justify a deviation from the zoning ordinance and thereby satisfies the positive criteria.
12. The new construction will adequately replace the existing structure and replenish the housing stock. The proposed project replaces a very old house and a vacant lot, thereby replenishing the housing stock and attracting families to the areas. The Board finds this to be beneficial to the community and [a] desirable result.
13. The proposed construction is aesthetically pleasing and offers a living standard that will attract new residents and serve to revive the area. Mr. Izquierdo presented plans and explained that the proposed project is architecturally very attractive and incorporates high ceilings, a Jacuzzi and other amenities that make it  very attractive and comfortable for the residents.
14. The Board heard testimony from laypersons and residents of the surrounding area. The Board considers that many of the objectors had similar variances previously granted for their properties. The Board found this testimony to lack credibility and [to be] unconvincing. Furthermore the Board found that Mr. Izquierdo['s] credible and believable testimony  adequately explained and rebutted the objections. The Board found credibility in the testimony of Mr. Izquierdo and Mr. Spatz.
15. Based on the testimony of the Board's own expert, Mr. Spatz, and photographs demonstrating the flat nature of the site, the Board finds that it is within its discretion to waive the steep slope Ordinance.
16. There is a sewer easement affecting this property. The [Board] recognizes that the easement issue must be negotiated and settled between the parties and finds that it may grant this variance conditioned on the satisfaction [of] the easement.
WHEREAS, the Board has determined that the relief requested by the Applicant can be granted without substantially impacting on the public good and without substantially impairing the intent and purpose of the Zone Plan and Master Plan for the following reasons:
1. It is the Board's determination that the location of the property and its proximity to the Hudson River and New York afford sufficient special reasons and justify a deviation from the Zoning Ordinance thereby satisfying the Positive Criteria.
The construction of two three family homes as well as a minor subdivision would be in the public interest without any detrimental effects to the community for the following reasons:
a) The proposed structure conforms to neighborhood standards;
b) The design is consistent with recent development;
c) The project increases the likelihood of owner occupied home stock in the community;
d) Unique situation caused by a sub-standard lot would make strict application of zoning ordinance a hardship upon the property;
2. The project would not be in conflict with the character of the neighborhood or with the master plan of the City.
3. It is the Board's determination that encroachment on light, air and privacy is satisfactorily minimized by the building design and the detriment is outweighed by the benefit thereby satisfying the Negative Criteria.
4. There was no credible opposition to the project.
5. The application of the City of Union City Zoning Ordinance Section 18-5.4 "the steep slope ordinance" to this project is hereby waived given the evidence presented to this Board relative to the flat nature of the site.
6. No variances are required as to Lots 5 & 6 in Block: 190.01 for their use as a parking area, as such use is ancillary in nature to the residential use contemplated for lots 15 & 16.
7. The application for a minor subdivision was abandoned by applicant since it was determined that all lots mentioned herein are currently separately existing lots on the tax and assessment map of the City of Union City.
8. The approval of the application would be subject to a legal resolution of the sewer easement affecting Lots: 16 in Block: 191.01.
WHEREAS, the Planning Board has determined that special reasons do exist for the relief requested by the applicant;
WHEREAS, the Board has determined that the relief requested by the applicant can be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning Ordinance of the City of Union City; and
NOW THEREFORE, BE IT RESOLVED, by the Planning Board of the City on this 28th day of July, 2009, that the application of ANTHONY MAUTONE is hereby approved, thereby granting the variances sought by applicant herein, as indicated above, for the reasons set forth herein, with the following conditions attached hereto:
1. Applicant is to install lighting in front, back and sides.
2. A tree is to be planted in the front of the structure.
We set forth the standards for our review of the Board's action in our earlier opinion in this case. There, we stated:
Recognizing that the Legislature has vested the municipality, through the Zoning Board of Adjustment,*fn3 with discretion in deciding whether to grant a specific variance, New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 305 N.J. Super. 151, 165 (App. Div. 1997), rev'd on other grounds, 160 N.J. 1 (1999), we give deference to the Board's determination, absent a finding that it acted in an arbitrary, capricious, or unreasonable manner. Trinity Baptist Church of Hackensack v. Louis Scott Holding Co., 219 N.J. Super. 490, 498 (App. Div. 1987). Therefore, there is a rebuttable presumption that the public body has correctly exercised its discretion; stated differently, the Board's decision is "'presumptively valid.'" New Brunswick Cellular Tel. Co., supra, 160 N.J. at 14 (quoting Smart SMR of New York, Inc. v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998)). Thus, we must determine whether the Board's decision "'is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion.'" Ibid.
We accord a Board wide latitude to exercise its delegated discretion due to its "'peculiar knowledge of local conditions.'" Witt v. Borough of Maywood, 328 N.J. Super. 432, 453 (Law Div. 1998) (quoting Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965)), aff'd, 328 N.J. Super. 343 (App. Div. 2000). The challenging party bears the burden of proving that the Board's action was unreasonable. Lincoln Heights Assoc. v. Twp. of Cranford Planning Bd., 314 N.J. Super. 366, 389 (Law Div. 1998), aff'd, 321 N.J. Super. 355 (App. Div.), certif. denied, 162 N.J. 131 (1999).
[Slip op. at 17-18.]
Having thoroughly reviewed the record in this matter, we are satisfied that the Board did not act arbitrarily, capriciously or unreasonably in granting the variances issued in this matter, that its determinations were adequately based on evidence contained in the record, and that the July 2009 resolution that memorialized its action conformed to the requirements that we recognized in our earlier opinion. In particular, we note that, unlike prior resolutions, which were terse and conclusory, leaving the reasons for the approval unstated, the current resolution makes sixteen explicit findings of fact, each supported by testimony or other evidence in the record, and those factual findings are logically connected to and support the Board's eight specific conclusions of law.
To obtain a c(2) ordinance, an applicant must show
(1) that [the application] relates to a specific piece of property; 2) that the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance requirement; (3) that the variance can be granted without substantial detriment to the public good; (4) that the benefits of the deviation would substantially outweigh any detriment; and (5) that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance.
[Wilson v. Brick Twp. Zoning Bd., 405 N.J. Super. 189, 198 (App. Div. 2009) (quoting William M. Cox, New Jersey Zoning and Land Use Administration, § 6-3.3 at 143 (Gann 2008) (citing Ketcherick v. Borough of Mountain Lakes, 256 N.J. Super. 647, 657 (App. Div. 1992); Green Meadows at Montville, L.L.C. v. Planning Bd. of Montville, 329 N.J. Super. 12, 22 (App. Div. 2000))).]
In this case, the developer, through his witnesses and the Board's expert, demonstrated that the application related to specific undersized lots*fn4 in Union City, and that the proposed development would advance the purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -92, by affording an opportunity for multiple families to obtain attractive and newly-constructed residential housing in an area that had not been well developed, having been partially vacant and otherwise occupied by an abandoned house. He similarly established that the housing was likely to be owner-occupied, it conformed to prevailing residential standards, it was proposed to be located in a particularly scenic area within the City, thereby benefiting multiple families, and it thus revitalized the community.
The Board determined that there would be some detriment to the public good arising from the proximity of the proposed structure to the rear lot line of the Cappellutis' property, but that negative impact would be lessened by the manner in which the windows were to be placed in the building and by the building's height, which was less than that of adjoining buildings. The Board further determined that any detriment was outweighed by the substantial benefits to be gained by the City from the project.
As a final matter, the Board found on the basis of the testimony of the developer's architectural and planning expert, Jose Izquierdo, that the construction would not substantially impair the intent and purpose of the zoning plan, but instead it would conform to neighborhood standards. Thus, we find that the necessary c(2) standards were met by substantial evidence in the record and that the Cappellutis failed to meet their burden of proving that the Board's action was unreasonable. Lincoln Heights, supra, 314 N.J. Super. at 389.
On appeal, the Cappellutis additionally argue that the property was not properly subdivided. However, as we have noted, the land had already been divided into separate lots as set forth on the City's tax map. Further subdivision does not appear to have been necessary. The Cappellutis argue as well that the Board did not properly weigh the credibility of the witnesses. However, examination of the Board's resolution discloses explicit credibility findings, including the finding that the objections of many of the objectors were suspect because they were the beneficiaries of variances similar to those that the developer sought in this case. Finding support for the Board's credibility determinations, we defer to them. Jackson v. Concord Co., 54 N.J. 113, 117 (1969).
An objection is also raised to the Board's conclusion that lots across the street could be used for parking as an accessory use without a further variance grant. If, as is alleged, the land in question is owned by the County, its authorization will be required for the use. We have not been informed of any ordinance that would preclude construction of the project envisioned by the developer if authorization to use these parking spaces is withheld.
As a final matter, we reject the Cappellutis challenge to the Board's waiver of the City's steep slope ordinances. The construction at issue is on the west side of Manhattan Avenue, and sufficiently removed from the face of the Palisades to render those ordinances inapplicable. In this respect, we defer to the Board's "peculiar knowledge of local conditions," as providing a foundation for its determination that the property was essentially flat and its consequent waiver decision. Kramer, supra, 45 N.J. at 296.