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Dominic Sico; Janet M. Rausse; Lionel Fuentes, Sr. and Raquel Fuentes v. Park Terrace


January 17, 2012


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3947-10.

Per curiam.


Argued December 7, 2011

Before Judges Fuentes, Harris, and Koblitz.

This is an action in lieu of prerogative writs involving four (d)-series variances*fn1 for a twenty-two-story mixed use development in the Town of West New York. Plaintiffs appeal the Law Division's February 7, 2011 ruling by written opinion*fn2 affirming defendant West New York Zoning Board of Adjustment's (the Board) approval of defendant Park Terrace, LLC's (Park Terrace) application for use, floor area ratio, density, and height variances pursuant to the New Jersey Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. We reverse.


Park Terrace is the owner of the subject property: five vacant lots consisting of approximately 37,757 square feet currently being used by nearby apartment dwellers for the non-permitted use of a surface parking lot. The land is located on Park Avenue in West New York's Medium-Density Residential zone

(R-M Zone).*fn3 Permitted uses in the zoning district include apartment developments, which range from garden apartment complexes (not exceeding two stories) to elevator apartment buildings (not exceeding twelve stories). Professional offices and parking for residents of the premises are accessory uses. Neither commercial offices nor public parking are permitted as a principal use in the R-M Zone.

Park Terrace submitted a multi-variance development application to the Board in connection with its proposed twenty-two-story (220 feet) structure, consisting of 243 residential apartments,*fn4 6,770 square feet of commercial office space, and an attached six-story parking garage. The state-of-the-art parking garage was planned to contain 446 off-street parking spaces, to serve not just the residents living at the premises but also the general public.

Between November 2009 and April 2010, five public hearings were held to address Park Terrace's application. The Board approved the application, including all necessary variances, exceptions, and waivers. It memorialized its determination by a written resolution in June 2010.

Several (d)-series variances were needed because significant attributes of the development departed from the zoning ordinance. The commercial office space and public parking were not permitted uses in the R-M Zone. See N.J.S.A. 40:55D-70(d)(1). A floor area ratio (FAR) variance was sought because the development's FAR was 8.1:1 but the zoning ordinance only permitted an FAR of 3:1 for an elevator apartment building. See N.J.S.A. 40:55D-70(d)(4). A density variance was required because the structure proposed 280.35 dwelling units per acre, which was more than three times the maximum of eighty dwelling units per acre permitted by the zoning ordinance. See N.J.S.A. 40:55D-70(d)(5). Lastly, a height variance was unavoidable because the zoning ordinance limited elevator apartment buildings to twelve stories (135 feet). See N.J.S.A. 40:55D-70(d)(6).

Park Terrace proffered the testimony of five expert witnesses. First, an architect, Osvaldo Martinez, AIA, testified regarding the overall development plan, specifically describing the building, residential apartments, amenities, and the structure's typical floor plans. He explained the results of a sunlight and shadow study, which analyzed the neighborhood's existing natural lighting and projected the effect of the proposed structure on the locale based upon seasonality and time-of-day changes. Martinez submitted that the project would not produce a substantial negative impact on sunlight and shadowing in the surrounding residential neighborhood.

Next, a professional engineer, Richard Adelsohn, P.E., testified about the proposed site plan and the lot consolidation. He described the nature of the proposed semiautomated parking garage, the storm water management and drainage system (including a proposed underground detention scheme), the geological-technical analysis for the structure, the proposed foundation for the building, and the variances and waivers*fn5 requested.

A landscape architect, Jan Saltiel, C.L.A., testified about the project's proposed landscaping plan. The witness described the revisions that had been made to the original plan to incorporate changes that had been requested by the Board's planning consultant. Saltiel further explained the "positive environmental effects [that] the proposed storm water absorption and absorption of sunlight and heat at the rooftop levels would have."

A traffic engineer, Brian Intindola, P.E., then discussed the development's potential traffic and parking issues. He described the positive impact that the "additional seventy-four public parking spaces" would have on the municipality's scarce on-street parking.

Park Terrace's last witness was a professional planner, Gregory Polyniak, P.P., P.E., who testified about his planning analysis. He highlighted the elimination of the existing non-permitted use -- the surface parking lot -- at the subject property and why it would be beneficial to do away with that use. Polyniak further described the effect of neighboring high-rise, high-density residential developments located just blocks from the subject property, which tower twenty-six stories, making them taller than the proposed project.

Polyniak opined that the application demonstrated special reasons warranting use variance approval. His rationale was based upon the following discrete observations:

"the proposed development provides a diversity in housing stock for the residents of the [T]own of West New York";

"the development provides a development compatible with those within the surrounding areas. . . . It fits within the eastern corridor of the [T]own of West New York and the development in the area";

"the development provides [a]esthetic value as it eliminate[s] an entire at grade parking lot with landscaping and this existing parking lot is, as everybody is aware of, is a sea of asphalt with a non-conforming use with respect to the RM district";

"the proposed development provides a new building with a substantial landscape buffer surrounding the structure";

"the proposed development provides an interior automated parking garage which removes vehicles entirely from view as they enter the building and park";

"the proposed development provide[s] a green roof, a sixth floor rooftop with recreation amenities";

"the proposed development also provides a streetscape improvement which include a brand new sidewalk along the site's frontage, new street trees and new wall mounted lighting to provide new streetscape in the area of the project";

"this project constructs an additional [seventy-four parking] spaces to solve the town wide problem";

"the development[,] which includes residential units, office space, [and] a parking garage will buttress the existing residential property values when compared to an open sea of asphalt parking lot."

In addition, when discussing whether the site was particularly suited for the proposed use, Polyniak stated that

The site is particularly suited for office use. The population is prevalent in the area for this use. It promotes the use of mass transit in the area. It provides the ability for those who live in the area to work in the area furthering state [policies] one being smart growth. And with the present infrastructure available, the site is useable for such, which includes again the office parking residential uses because, again, it will satisfy other requirements set forth by state policy's smart growth. . . . [I]t provides the ability for people to live and work in the area and in this neighborhood. By doing so it creates an active community through the use of mass transit and the ability to live and work in the area within this neighborhood.

At the close of Park Terrace's presentation of documentary evidence and expert witnesses, the Board heard from twenty-one members of the West New York community. Many expressed support for the project, others objected to it. Those in support expressed lay opinions advocating the elimination of the present eyesore of a parking lot, endorsing adding to the supply of off-street parking through the additional parking facilities, commending the probable economic stimulus the community would enjoy by an influx of more residents who would likely support nearby commercial businesses, and applauding the improvement to West New York's visual environment. Those opposing the project commented on its negative effect on natural light in the neighborhood, condemned increased traffic congestion, criticized the jarring effect of such a tall structure in close proximity to the existing single- and two-family dwellings, and decried the negative effect upon street life caused by parts of the structure's geometry.

Ultimately, the Board concluded that Park Terrace's experts, particularly Polyniak, "supported the requests for the D and C variances and design waiver." The Board found that the challenging "issues presented due to increased floor area ratio, density, and height [were] addressed in the project design and the site."

The Board's resolution expressly noted that there was community support for the project. Those advocating its approval were noted as touting an increase in commerce in West New York, urging the need for greater parking alternatives in the neighborhood, approving the project's aesthetics, endorsing the array and diversity of housing opportunities, and welcoming "a solid and increased tax ratable for the Town."

The Board also noted that objectors had argued that the project was too dense and presented too much increase in traffic, vehicles and congestion, that the building would produce substantial increase in shadowing, lack of sunlight and air, crowding of the neighborhood, and disturbance of their present views of New York City, and that it would produce the need of more public services and an increased number of school age children.

The public opposition was further accurately characterized as contending that the proposal was not compatible with the municipality's Master Plan or with the existing neighborhood scheme located west on "57th Street and 58th Street, which is predominantly two-family homes (although zoned for buildings up to 12 stories in height)."

The Board made the following findings, in pertinent part, in support of its development approval:

One benefit of this project is the proposed parking. As testified to by [Park Terrace's] experts, the proposed parking garage is semi-automated, state-of-the-art, and the first in New Jersey that will have an environmentally-friendly automated operation that will reduce or eliminate the gas fumes usually caused by cars waiting in line to park or driving around parking levels.

Further, parking will be provided for the tenants from the two 26-story buildings across the street at 5701 Kennedy Boulevard East and 5601 Kennedy Boulevard East (Overlook Terrace), who will not be displaced to parking on the streets, even though the surface parking lot where they currently park will be eliminated.

Further, the twelve parking spaces provided for the new commercial/professional units and the additional seventy-four public spaces, or a total of eighty-six parking spaces, will be reserved for daily or monthly rentals to West New York residents or persons employed and working in West New York only.

Another benefit of this project is that the applicant has included landscaping, trees, and shrubbery all around the proposed building on the street level, as well as on the amenities deck on the parking garage roof, to beautify the area in general and this site in particular, which is presently vacant and underdeveloped as a surface parking lot. The developer has proposed to make this area as "green" and beautiful as possible by placing landscaping, trees, and shrubbery between the neighboring residences and the proposed new building.

A further general benefit of this project is that it helps to satisfy another [town] problem in the scarcity of its housing stock. This project will provide new housing with parking for residents of the building as well as for the existing neighborhood.

Another benefit is that the proposed site is particularly suited for this project in that it is presently underdeveloped or undeveloped, being vacant or an asphalt parking lot in a residential area on a main transportation corridor. Additionally, this project will contribute a significant and increased tax ratable for the Town of West New York.

The Board finds that the applicant has satisfied its burden of proof pursuant to the [MLUL] for the approvals. Specifically, the testimony and exhibits . . . indicate that the benefits of granting the variances and approvals substantially outweigh any detriment. The Board finds that the proposal is not out of character with current existing buildings across from the subject property and nearby on adjoining streets facing the City of New York.

Further, the Board finds that, using prudent zoning and planning principles, the request for the subject approvals will not adversely affect the existing neighborhood, or the community as a whole, in consideration of the benefits that will be received. The [Board] hereby determines that the overall objectives of the MLUL and the Town's Zoning Ordinances and Master Plan are met with the approval of the application. . . .

NOW, THEREFORE, BE IT RESOLVED that the [Board] hereby GRANTS the D Variances for Use (high-rise building, commercial-professional office space, and commercial parking garage), Floor Area Ratio, Density, and Height of more than ten percent in both number of stories and total height; C Variances (subsumed) for front and rear yard setbacks, minimum lot area, parking space size, parking drive aisle size, and exceeding single driveway width; and Design Waiver for exceeding number of curb cuts; and Approval of Consolidation of Lots.

In July 2010, plaintiffs filed a seven-count verified complaint in lieu of prerogative writs seeking to reverse the action taken by the Board, contending that Park Terrace "failed to meet its burden of proof and that the action of the Zoning Board was arbitrary, capricious or unreasonable." In December 2010, a one-day trial was conducted, followed by the trial court's written opinion in February 2011, affirming the Board's action. The trial court specifically concluded:

The [c]court notes [p]laintiffs' argument that the Board's resolution must state its findings with particularity and that the Board is proscribed from considering the totality of the testimony presented. The [c]court finds, however, that

[p]laintiffs' argument improperly champions the letter of the law over the spirit. The

[c]court finds that the Board heard a great amount of testimony from uncontroverted independent witnesses over the course of several hearings. Additionally, the [c]court finds that the Board's resolution contains sufficient, particularized evidentiary findings. In short, giving the substance and content of the municipal proceedings below, the [c]court cannot say that the Board's decision, based on sufficient factual findings, was arbitrary, capricious or unreasonable.

This appeal ensued.


"[W]hen reviewing the decision of a trial court that has reviewed municipal action, [the Appellate Division is] bound by the same standards as was the trial court." Fallone Props., L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004); see also CBS Outdoor, Inc. v. Borough of Lebanon Plan. Bd., 414 N.J. Super. 563, 577 (App. Div. 2010). Thus, our review of the underlying action, which aligns with the scope of review employed by the Law Division, is limited. See Bressman v. Gash, 131 N.J. 517, 529 (1993) (holding that appellate courts are bound by the same scope of review as the Law Division and should defer to the local land-use agency's broad discretion).

It is well-established that "a decision of a zoning board may be set aside only when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor, 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). "[P]ublic bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adj. of Wall Twp., 184 N.J. 562, 597 (2005). Therefore, "[t]he proper scope of judicial review is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Ibid.

It is equally well-settled that use variances should be granted sparingly and with great caution. Kinderkamack Rd. Assocs., L.L.C. v. Mayor & Council of Bor. of Oradell, 421 N.J. Super. 8, 21 (App. Div. 2011) (citing N.Y. SMSA, L.P. v. Zoning Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004)). "Because of the legislative preference for municipal land use planning by ordinance rather than variance, use variances may be granted only in exceptional circumstances." Id. at 12. Accordingly, it is for this reason that courts give less deference to the grant of use variances than to denials. Nextel of N.Y. v. Bor. of Englewood Cliffs Bd. of Adj., 361 N.J. Super. 22, 38 (App. Div. 2003). Moreover, given the enormous hurdles that stand in the way of use variances, courts have been admonished for almost twenty-five years to be particularly vigilant in their review of use variance approvals for commercial non-inherently beneficial uses. See generally Medici, supra, 107 N.J. at 25; see also Nuckel v. Bor. of Little Ferry Plan. Bd., 208 N.J. 95, 102 (2011) (noting that the burden on a use variance applicant is "not insignificant"). A use variance is the Holy Grail of the land development community; it must be rightfully earned and well-justified before a court will bless its bona fides.

In order to obtain such a variance, an applicant must satisfy both the so-called positive and negative criteria of the MLUL. See, e.g., New Brunswick Cell. Tel. Co. v. Bor. of S. Plainfield Bd. of Adj., 160 N.J. 1, 6 (1999). Under the positive criteria, an applicant must show special reasons to justify the proposed use variance. N.J.S.A. 40:55D-70(d)(1). As the Court has stated, "'special reasons' takes its definition and meaning from the general purposes of the zoning laws" enumerated at N.J.S.A. 40:55D-2. Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 386 (1990). There are three scenarios in which such reasons may be found:

(1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility, see Sica v. Bd. of [Adj.] of Wall, 127 N.J. 152, 159-60, (1992); (2) where the property owner would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone, see Medici v. BPR Co., 107 N.J. 1, 17 n.9, (1987); and (3) where the use would serve the general welfare because "the proposed site is particularly suitable for the proposed use." [Smart SMR v. Borough of Fair Lawn Bd. of [Adj.], 152 N.J. 309, 323 (1998)] (quoting Medici, supra, 107 N.J. at 4). [Nuckel, supra, 208 N.J. at 102 (quoting Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adj., 388 N.J. Super. 67, 76 (App. Div. 2006)).]

Park Terrace concedes that its special reasons rise or fall on the third option, that is, is the proposed site particularly suitable for the proposed use?

In contrast, the negative criteria require an applicant to prove "that [the] variance can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70(d).

Additionally, a proponent of a noninherently-beneficial commercial use, as here, must surmount an additional threshold. Since 1987, such an applicant is obliged to satisfy "an enhanced quality of proof" by securing "clear and specific findings by the board of adjustment that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici, supra, 107 N.J. at 21. This enhanced quality of proof must "reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Ibid. It is a formidable obstacle for any developer.

Applying the foregoing principles, we now turn to the record presented to the Board, and review the decision of the Board that flowed from such evidence.

The Board found particularized site suitability based upon an aggregate of discrete factors: (1) "residential and professional office uses are compatible with the existing surrounding neighborhood"; (2) "[i]t is consistent with Statewide Smart-Growth and Transit-Friendly policies, being located on and near several transportation corridors and providing density within already-developed areas"; (3) the project will "beautify the area in general and the site in particular, which is presently vacant and underdeveloped as a surface parking lot"; (4) "the project will provide new housing with parking for residents of the building as well as for the existing neighborhood"; and (5) the property "is presently underdeveloped or undeveloped, being vacant or an asphalt parking lot in a residential area on a main transportation corridor." Notwithstanding the overall benefits, as identified by the Board, which might accrue from the development, none of its proffered reasons individually, or in the aggregate, satisfy the high standard required for particularized suitability under the MLUL and its long-standing jurisprudence.

Particular suitability for a use variance can be shown where (1) "the use is one that would fill a need in the general community," (2) "there is no other viable location," or (3) "the property itself is particularly well fitted for the use either in terms of its location, topography or shape." Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 210 (App. Div. 1999) (reversing a board of adjustment's grant of a use variance); see also Kinderkamack Rd. Assocs., supra, 421 N.J. Super. at 21 (affirming a board of adjustment's denial of a use variance); Saddle Brook Realty, LLC, supra, 388 N.J. Super. at 76 (reversing a board of adjustment's grant of a use variance).

In light of the stringent Medici standards repeated and reinforced in Kinderkamack Road Associates, Saddle Brook Realty, LLC, and Funeral Home Management, Inc., none of the Board's reasons supports a finding of particular suitability under the MLUL. The focus, of course, of particularized site suitability in this case was on the discordant commercial offices and public parking. Nothing that Polyniak and the other witnesses attested to remotely demonstrated that (1) either or both non-permitted uses would fill a need in the general community; (2) there was no other viable location for such uses; or (3) the land's topography, location, or shape was well fitted for such uses. Regardless of whether the project would be attractive, compatible with its urban setting, or even profitable to the community, Park Terrace failed to demonstrate that "'the particular site . . . must be the location for the variance.'" Funeral Home Mgmt., supra, 319 N.J. Super. at 209 (quoting Fobe Assocs. v. Mayor of Demarest, 74 N.J. 519, 534 (1977) (emphasis in original)). The most that can be said is that Polyniak's opinions, and the Board's conclusions, would be powerful arguments to marshal before the governing body if it were considering a zoning change. We conclude that Park Terrace failed to establish the positive criteria that special reasons existed under N.J.S.A. 40:55D-70(d)(1) and thus it did not sustain the requisite burden of proof before the Board.

We also determine that the Medici enhanced quality of proof was not satisfied. These proofs may be satisfied, for example, by evidence that "the character of a community has changed substantially since the adoption of the master plan" or that "a variance for a use omitted from the ordinance is not incompatible with the intent and purpose of the governing body when the ordinance was passed." Medici, supra, 107 N.J. at 21. The Court warned that "[r]econciliation on this basis becomes increasingly difficult when the governing body has been made aware of prior applications for the same use variance but has declined to revise the zoning ordinance." Id. at 21-22.

It is not enough to merely demonstrate that a particular use aligns with a current recommendation contained within an upto-date municipal master plan. Instead, a use variance applicant has the formidable task of reconciling the proposed use variance with the fact that the zoning ordinance omitted the use from those permitted in the district. Id. at 21-23. If these proofs are neglected, or if a board of adjustment fails to explicitly find and explain them, the public interest suffers a substantial risk that a board of adjustment will arrogate the zoning authority of the municipality to itself, rather than allowing it to reside where it belongs, in the hands of the elected governing body. Id. at 22 (noting that the enhanced standard guards against "'arbitrary action and untrammeled administrative discretion'" (quoting Ward v. Scott, 11 N.J. 117, 126 (1952))); see also Feiler v. Bor. of Fort Lee Bd. of Adj., 240 N.J. Super. 250, 255 (App. Div. 1990), certif. denied, 127 N.J. 325 (1991).

The Board found that Park Terrace had reconciled the proposed commercial offices and public parking with West New York's master plan and zoning ordinance. Nothing in the record supports the Board's conclusory determination. The Board did not specifically address the history of the zoning ordinance or master plan, discuss changes in the character of the area that would justify departure from the local legislation, or present a cogent rationale to serve as a foundation for an enhanced quality of proofs. Its reasoning is unsupportable because Park Terrace's proofs failed to meet the obligatory enhanced quality needed to sustain a use variance under N.J.S.A. 40:55D-70(d)(1).

Reversed and remanded for the entry of a judgment vacating the action of the Board.*fn6

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