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Michael Cappelluti and Isabella Cappelluti v. City of Union City Planning Board and Anthony R. Mautone

July 19, 2011


On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3977-08.

Per curiam.


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 ...

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