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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 ...

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