520 VICTOR STREET CONDOMINIUM ASSN., and SAWMILL CONDOS, LLC, Plaintiffs-Appellants,
RAYMOND PLAZA and TOWNSHIP OF SADDLE BROOK ZONING BOARD OF ADJUSTMENT, Defendants-Respondents
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3019-08.
Bannon Rawding McDonald & Mascera, attorneys for appellants (Gregory Mascera, of counsel and on the brief).
Sunshine, Atkins, Minassian, Tafuri & D'Amato, P.A., attorneys for respondent Raymond Plaza (Donald L. Minassian, on the brief).
Charles H. Sarlo, attorney for respondent Township of Saddle Brook Zoning Board of Adjustment.
Before Judges Yannotti, St. John and Leone.
Plaintiffs appeal from a judgment of the Law Division affirming the resolution of approval by Defendant, the Zoning Board of Adjustment ("Board") of the Township of Saddle Brook ("Township"), of an application for variances and development by Defendant, Mr. Raymond Plaza ("Plaza" or "the Applicant"). Plaintiffs raise numerous challenges to the Board's resolution, including its requirement of a $400, 000 contribution by Plaza.
We conclude that the Board did not comply with N.J.S.A. 40:55D-42 or the pertinent Township ordinance when it required the $400, 000 contribution. Accordingly, we reverse the Law Division's judgment in part, vacate the Board's approval of Plaza's application, and remand to the Board for reconsideration.
Plaza's 2006 application sought permission to develop three multi-story residential buildings on a property on Fifth Street in the Township. He amended his application to limit eighty percent of the condominium units to persons at least fifty-five years old. Plaza's application was opposed by Plaintiff 520 Victor Street Condominium Association ("Plaintiff"), which operated an adjacent multi-family residential development called Saw Mill Commons.
Plaza sought to build these condominium buildings in the Township's Industrial Zoning District, which did not permit multi-family residential housing. Accordingly, Plaza's application sought a use variance as well as other variances.
The Board conducted hearings on Plaza's application throughout 2007. On December 11, 2007, the Board voted to approve the application. On March 3, 2008, the Board adopted a Resolution of Approval, making findings on fact and conclusions of law. The Board granted a use variance and other variances, and approved the site plan. The Board made the approval subject to sixteen conditions, one of which was that Plaza make the $400, 000 contribution.
Plaintiffs filed in the Law Division a complaint in lieu of prerogative writs, seeking to void the Board's resolution. On June 17, 2011, after a two-day trial, the judge issued an order for judgment with a lengthy opinion dismissing the complaint with prejudice and affirming the Board's actions, finding they were not arbitrary, capricious, or unreasonable.
Plaintiffs appeal the judge's affirmance of the Board's actions. "[W]hen reviewing the decision of a trial court that has reviewed municipal action, we are bound by the same standards as was the trial court." Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J.Super. 552, 562 (App. Div. 2004). "[W]hen a party challenges a zoning board's decision through an action in lieu of prerogative writs, the zoning board's decision is entitled to deference." Kane Props., LLC v. City of Hoboken, 214 N.J. 199, 229 (2013). "[Z]oning boards, 'because of their peculiar knowledge of local conditions[, ] must be allowed wide latitude in the exercise of delegated discretion.'" Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)). "'The questions on appeal are only whether or not the action of the board was arbitrary, capricious or patently unreasonable, and whether it acted properly under the statute, that is, in accordance with the statutory standard.'" Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 54-55 (1998) (citation omitted).
Plaintiffs' complaint did not mention the $400, 000 contribution, but the issue was discussed at length before the Law Division. The judge rejected the argument "that this contribution in and of itself necessitates that this Court reverse all the approvals granted to the defendant by the Board, " but stated that the "contribution does give this Court great concern." We conclude that the judge erred by failing to set aside the approval because the Board conditioned its approval on a contribution, which did not conform with the applicable laws and ordinance.
Here, the Board conditioned approval of the site plan on Plaza's contribution of $400, 000 to pay for sanitary sewer, stormwater, and drainage improvements "off-tract." Whether a zoning applicant may pay for off-tract improvements is governed by the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. Under N.J.S.A. 40:55D-39a, "[a]n ordinance requiring approval by the planning board of . . . site plans . . . may include . . . [p]rovisions for off-tract water, sewer, drainage, and street improvements which are necessitated by a . ...