On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5307-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, Nugent and Kestin.
Defendant Himeji, LLC, appeals from the April 21 and June 2, 2010 orders of the Law Division that reversed variances and site plan approval granted by the Union City Zoning Board of Adjustment for construction of an apartment building. The Board's responding brief joins in Himeji's argument that it acted lawfully in granting variances and site plan approval. Because the Law Division interpreted too narrowly the so-called positive criteria for granting variances under N.J.S.A. 40:55D-70d, we reverse and reinstate the Board's approval of the proposed development.
In December 2008, Himeji filed an application with the Board of Adjustment seeking to demolish three existing residential buildings at 1410-1418 Palisade Avenue and to construct in their place one building with five floors of apartments and three floors of garage space. The property consists of four contiguous lots and is 119 feet wide and 143 feet deep with an area of 16,779 square feet. The site is somewhat unique in that joining the four lots gives it frontage on both Palisade and Manhattan Avenues and it is situated on a man-made slope.
As modified in the course of proceedings before the Board, Himeji's proposed building would contain sixty apartments on four floors. Three additional floors below or sub-grade from Palisade Avenue would hold parking spaces for ninety-five cars.
The building would be sixty-three feet high on the Palisade Avenue side and eighty feet high on the Manhattan Avenue side.
The proposed project is not a permitted use at that location under the Union City zoning ordinance, and it deviates from several other zoning regulations. The property sits in the Residential District ("R zone"), which permits one- to four-family dwellings and family row houses. Conditionally permitted uses in the R zone include public housing developments for senior citizens, rooming houses, and limited multi-family developments. The property is also in the Steep Slope Overlay District ("SSOD"), which imposes additional restrictions on development. Across Manhattan Avenue from the property is the Residential Multi-Family ("RMF") zoning district, where high-rise buildings are permitted. Surrounding the property in both the R and RMF zones are residential buildings of four to six stories, the majority of which exceed the current height maximum of forty feet for the R zone.
The proposed project requires variances under the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to -112. Pursuant to N.J.S.A. 40:55D-70d, Himeji applied for a d(1) use variance; a d(6) height variance; and a d(5) density variance because the proposal has a density of 156 units per acre and the R zone only permits 30 units per acre and the SSOD only 4.6 units. The application also sought certain bulk and dimensional variances pursuant to N.J.S.A. 40:55D-70c - for lot area, lot coverage, building length, and front, side and rear yard setbacks. In addition, a waiver was needed from the Residential Site Improvements Standards ("RSIS"), which would require 113 parking spaces for the proposed density.
The Board heard the application on June 4 and July 9, 2009. Himeji presented expert testimony of an engineer, an architect, a traffic and planning expert, and a project planning expert. Two neighboring residents commented in support of the project. Plaintiff in this case, who is a resident of Palisade Avenue and a taxpayer in Union City, cross-examined Himeji's witnesses and was the only person who objected to the application.
On July 9, 2009, the Board voted to approve the development and granted the variances, waivers, and site plan approval. On September 10, 2009, it adopted a resolution summarizing the evidence presented at the hearing and making specific findings of fact in support of its decision.
Plaintiff filed an action in lieu of prerogative writs in the Superior Court, Law Division, to set aside the Board's decision. He alleged that Himeji failed to meet its burden of proof and that the Board's approval of the variances was contrary to the MLUL. After reviewing the parties' submissions and hearing argument, the Law Division reversed the Board's resolution of approval by order dated April 21, 2010. The court issued a memorandum decision stating its reasons for the reversal and concluding that the Board's action was erroneous because the property was not "particularly suitable" for the proposed use. In ...