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Larry Price v. Himeji


August 2, 2011


On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5307-09.

Per curiam.


Argued May 4, 2011

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 reaching that conclusion, the court stated that Himeji failed to prove there is "no other viable location" or that the property "must be the site for the project."

Himeji filed a motion for reconsideration, which the court denied on June 2, 2010. This appeal followed.

Decisions of zoning boards to grant or deny applications constitute quasi-judicial actions of municipal administrative agencies, Willoughby v. Plan. Bd. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997); Kotlarich v. Mayor of Ramsey, 51 N.J. Super. 520, 540-42 (App. Div. 1958), and they are presumed to be valid, Cell S. of N.J. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002); Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 285 (1965). Zoning boards "must be allowed wide latitude in their delegated discretion" because of their peculiar knowledge of local conditions. Jock v. Zoning Bd. of Adj. of Wall Twp., 184 N.J. 562, 597 (2005); accord Sica v. Bd. of Adj. of Wall Twp., 127 N.J. 152, 167 (1992); Kramer, supra, 45 N.J. at 296.

We apply the same standard as the Law Division must apply in reviewing the decision of the zoning board. Bressman v. Gash, 131 N.J. 517, 529 (1993); D. Lobi Enters., Inc. v. Planning/Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009). The question is whether the decision of the local board is "supported by the record and is not so arbitrary, capricious or unreasonable as to amount to an abuse of discretion." New Brunswick Cellular v. Bd. of Adj. of S. Plainfield, 160 N.J. 1, 14 (1999); Smart SMR of N.Y. v. Bor. of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1988); Kramer, supra, 45 N.J. at 285. A court must not substitute its own judgment for that of the board unless there is a clear abuse of discretion. See Cell S. of N.J., supra, 172 N.J. at 81-82. The burden is on the challenging party to show that the board's decision was arbitrary, capricious, or unreasonable. See Smart SMR of N.Y., supra, 152 N.J. at 327; Kramer, supra, 45 N.J. at 296.

The MLUL authorizes zoning boards to grant a use variance where the applicant shows both that "special reasons" justify the departure from zoning requirements (the "positive" criteria) and that the variance will not cause "substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance" (the "negative" criteria). See Sica, supra, 127 N.J. at 156; Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adj., 388 N.J. Super. 67, 75-76 (App. Div. 2006). Upon a showing of both the positive and negative criteria, the Board has the power to grant a variance to permit:

(1) a use or principal structure in a district restricted against such use or principal structure, . . . (5) an increase in the permitted density . . . or (6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure. [N.J.S.A. 40:55D-70d.]

"[A] court's review of a grant of a variance is limited to whether the municipal authorities could reasonably have concluded from the evidence that a special reason existed and that the negative criteria for granting a variance have been satisfied." Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990). "If there is such support in the record, approval will not be deemed arbitrary or capricious." Ibid. (citing Kramer, supra, 45 N.J. at 296).

Proof of "positive" criteria requires a showing of "special reasons," which are defined by the purposes of zoning listed in N.J.S.A. 40:55D-2. Id. at 386. Because Himeji's proposal was not one that inherently serves the public good, such as a school or public housing facility, and because Himeji could not show undue hardship if compelled to use the property in conformity with the permitted uses in the zone, it was required to prove that the property "is particularly suitable for the proposed use." Medici v. BPR Co., 107 N.J. 1, 17-18 (1987); Saddle Brook Realty, supra, 388 N.J. Super. at 76. The showing of the positive criteria in that respect is site specific - the applicant must show that the proposed use is "peculiarly fitted to the particular location for which the variance is sought." Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 279 (1967).

Here, in reversing the Board of Adjustment, the Law Division stated:

In [Fobe Assocs. v. Mayor of Demarest, 74 N.J. 519, 534-35 (1977), overruled in part, S. Burlington County NAACP v. Twp. of Mt. Laurel, 92 N.J. 158 (1983)], the Court further explained what "particularly suitable" meant in the context of a (d)(1) variance, stating that there must be proof and findings to the effect "that unless the [applicant's] project is erected at the particular site for which the variance is sought the general welfare inherent in provision of more multi-family housing will not be attained." In other words, in these cases the "particular site . . . must be the location . . . to promote the general welfare." Id. at 534 (quotation omitted and emphasis in original). Obviously, if other locations are available for multi-family construction then the proposed site is not a necessary one. Since [the applicant] offered no proof on this point, the Board was obliged to deny its application.

Himeji argues the Law Division's understanding of the law was mistakenly restrictive. The Board found that the subject property is "particularly suitable" for the proposed use, but the Law Division found it was not because there was no proof presented that other sites in Union City are unavailable for such an apartment building.

The cases do not provide a precise definition of the phrase "particularly suitable." In Medici, supra, 107 N.J. at 24, the Court concluded that the property for which a motel and restaurant were proposed was not "particularly suitable" for such development only because the site was near an interstate highway. Other properties in the municipality were also near the highway. In explaining what "particularly suitable" means, the Court stated: "any benefit to the general welfare derives not from the use itself but from the development of a site in the community that is particularly appropriate for that very enterprise." Id. at 18.

In Fobe Assocs., supra, 74 N.J. at 534-35, the Court stated: "there was neither proof nor findings that unless the [applicant's] project is erected at the particular site for which the variance is sought the general welfare inherent in provision of more multi-family housing will not be attained."

The Court's decision, however, did not turn on whether the property was particularly suited for multi-family housing. The Court concluded that the local board's denial of a variance should be affirmed because the applicant had not proven the required negative criteria under the variance statute. Id. at 537-38.

In Funeral Home Management v. Basralian, 319 N.J. Super. 200, 208 (App. Div. 1999), we held that the subject property was not particularly suitable for a funeral home because "the Board made no finding that a funeral home use was not available in other locations in the area, or indeed, that there was a community need for such use." Id. at 211. We said "we have found peculiar suitability special reasons exist where, generally, the use is one that would fill a need in the general community, where there is no other viable location, and where the property itself is particularly well fitted for the use either in terms of its location, topography or shape." Id. at 210.

In Saddle Brook Realty, supra, 388 N.J. Super. at 81, we reversed the Board's grant of a use variance to build a fast food restaurant. We held the property was not "particularly suitable" for that use because the applicant did not establish the location "is a more suitable location . . . than any other location in the . . . commercial district, which is a prerequisite for finding that there are special reasons justifying a use variance." Id. at 77. See also Mocco v. Job, 56 N.J. Super. 468, 477 (App. Div. 1959) (use variance was improperly granted because no evidence in the record showed that "the particular site in this residential district must be the location for the variance here sought in order to promote the 'general welfare'").

These cases understandably led the Law Division to conclude the applicant must show that other properties could not be used to fulfill a need for the particular use, and the applicant's property must be the site for the proposed use in order to promote the general welfare. Although such proofs are often relevant, the meaning of "particularly suitable" is not so restrictive that it requires such a precise showing in every case.

In general, "'[s]pecial reasons' is a flexible concept" that depends on the specific facts and circumstances of each application and the purposes of zoning ordinances as authorized by the MLUL. See De Simone v. Greater Englewood Housing Corp., 56 N.J. 428, 440 (1970). Himeji's application can be distinguished from the factual circumstances of the cited cases in which variances were denied. Himeji presented uncontested evidence that Union City has a need for new housing and its property is particularly suited for the multi-unit residential building proposed. In addition, the Board made specific findings relevant to the question of whether other sites are available to fulfill the community need for housing.

The Board stressed that "the site will provide newer housing, which is needed for Union City's growing population." It cited statistics regarding the population growth in the city and its overcrowding problem. The Board also found that vacant land is "extremely scarce," only three percent of the total number of parcels in the entire city. The Board explained that "Union City is a built-out community" and that "the majority of newer housing results from redevelopment of parcels as opposed to development of vacant parcels." The Board said it is not aware of any suitable and available vacant sites in the city that permit the development of high-rise buildings, and it noted a lack of "available sites in the permitted zone."

Although the Board did not specifically state there is no other viable location for construction of a multi-family dwelling, or that Himeji's property "must" be the property for development of a multi-unit apartment building, such a finding was not indispensable. If it were, neither of two or more sites that would fulfill a community need could obtain a use variance.

The cases we have cited are more accurately understood as dependent on the absence of sufficient evidence of particular suitability. Here, Himeji presented ample uncontested evidence of the suitability of its land for multi-family housing.

The Board noted the subject property "is conveniently located to mass transit and provides adequate on-site parking." It also said that "the immediate area consists of development that is above and beyond the permitted uses" of one- to four-family dwellings. The Board said it "is fully familiar with the site in question and opines that the total square footage of the site is adequate to accommodate the density and height of the building."

In its resolution, the Board listed nine reasons as further support for its conclusion:

1) The property is located at the narrowest portion of the zone and its slope is only ten percent.

2) The property is at the edge of the R zone and adjacent to the RMF zone where high-rise dwellings are a permitted use.

3) Located nearby in the R zone are several existing mid to high-rise developments of similar height.

4) The assemblage of four contiguous lots makes the property unique for such a development.

5) The dual frontage on Palisade and Manhattan Avenues permits design flexibility.

6) The slope is only ten percent, as opposed to thirty percent in portions of the RMF zone, and there is no exposed rock on the property.

7) Palisade Avenue is a major corridor with a wide right of way, thus separating the proposed project from buildings of lesser height on the other side of the avenue.

8) The existing buildings on the site include ten non-conforming units in need of substantial rehabilitation.

9) The property is not located on the Palisades Cliff but consists of a man-made slope.

The Board's findings are entitled to deference. There was sufficient evidence in the record to support its discretionary determination that the property is "particularly suitable" for the proposed use. We conclude that the Law Division erred in requiring a more stringent showing than reflected in the Board's detailed findings of fact. Himeji proved "special reasons" for the granting of the use, density, and height variances.



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