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Price v. 636 37th Street, L.L.C.

Superior Court of New Jersey, Appellate Division

October 31, 2013

LARRY PRICE, Plaintiff-Appellant,
v.
636 37th STREET, L.L.C. and UNION CITY ZONING BOARD OF ADJUSTMENT, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 12, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3952-11.

Larry Price, appellant pro se.

Adolofo L. Lopez argued the cause for respondent 636-37th Street, L.L.C. (Ledesma, Diaz, Lopez & Norris, P.C., attorneys; Mr. Lopez, on the brief).

Gregory F. Kotchick argued the case for respondent Union City Zoning Board of Adjustment (Durkin & Durkin, LLP, attorneys; Mr. Kotchick, of counsel and on the brief).

Before Judges Yannotti and Hayden.

OPINION

MARGARET M. HAYDEN, J.A.D.

Plaintiff Larry Price (Price) filed a complaint in the Law Division challenging a decision of defendant Union City Zoning Board of Adjustment (the Board) to grant certain variances to defendant 636 37th Street, L.L.C. (the applicant). Price appeals from a January 26, 2012 order dismissing his complaint with prejudice. For the reasons that follow, we affirm.

The applicant owned the property located at 636 37th Street, Union City. The two and one-half story structure was built in 1913 as a four-family dwelling. Sometime later, an additional two apartments were illegally constructed in the basement, which did not comply with the housing codes. The property has been utilized and taxed as a six-unit apartment for over thirty years. It is located in the R-Zone in Union City, which permits one- through four-unit family dwellings.

The R-Zone also allows limited multi-family dwellings, called garden apartments, as a conditional use. Section 18-3.5 of the Union City zoning ordinance defines a garden apartment as "[a] residential structure of not more than three stories containing three or more dwelling units." The ordinance provides ten specifications for garden apartment developments. The applicant meets at most four of these specifications.

The applicant filed an application with the Board, pursuant to N.J.S.A. 40:55D-70(d) of the Municipal Land Use Law (MLUL), seeking variances and Board approval to upgrade the two basement apartments to bring them in compliance with the housing code and the zoning ordinance. At the April 21, 2011 hearing on the application, the Board heard the testimony of the applicant's two experts, Orestes Valella, a licensed architect, and Kevin O'Brien, a licensed planner. Both experts opined that the proposal conformed to the requirements for a "special reasons" variance.

The applicant's experts described the reasons the application met the positive criteria for the variances: (1) the proposed structure conformed with neighborhood standards; (2) similar multi-family uses currently existed in the area; (3) the proposed alterations would make the substandard units safe and improve the aesthetic aspect of the structure; (4) the bulk, shape and scale of the structure would remain similar to other buildings in the area; (5) the units would be modernized, including installation of a new electrical system, new plumbing, new fire ratings, greater ceiling height and fire sprinklers; (6) the neighborhood would benefit from bringing the building into conformity with the modern building code; and (7) the improvements would create needed and desirable housing located near a mass transit system and highways.

Both experts also were in accord that the application satisfied the negative criteria as well. Since the applicant was merely improving the conditions that existed for many years, in the experts' opinions there would be no substantial detriment to the neighborhood, public good, general welfare, or the Master Plan and zoning ordinance. The Board also considered the testimony of its own expert engineer, David Spatz, who supported the project and opined that it qualified for a conditional use variance ...


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