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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,
636 37th STREET, L.L.C. and UNION CITY ZONING BOARD OF ADJUSTMENT, Defendants-Respondents.


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.



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 as a limited multi-family development. Price appeared at the hearing to oppose the application, but did not present his own expert.

After considering the evidence presented, the Board unanimously approved the application. In a written resolution, dated July 26, 2011, the Board found that the proposed use of the property was as a garden apartment under the zoning ordinance and thus a conditional use variance, rather than a prohibited use variance, was required. Further, the Board found that the applicant had satisfied the positive and negative criteria for the issuance of the requested variances.

Thereafter, Price filed a complaint in the Law Division against the Board and the applicant. Price contended that the project required a prohibited use variance, N.J.S.A. 40:55D-70(d)(1), not a conditional use variance, N.J.S.A. 40:55D- 70(d)(3), because the six-unit building was not a permitted use and did not meet the ordinance specifications for garden apartment conditional use. Additionally, Price contended, the applicant had not satisfied the positive and negative criteria requirements for a use variance and thus the Board's decision was arbitrary, capricious, and unreasonable. Price also challenged the Board's decision as deficient because the applicant did not provide separate special reasons for a density use variance under N.J.S.A. 40:55D-70(d)(5). Defendants answered that the Board employed the proper legal standard and the decision was reasonable and supported by the evidence in the record.

The trial judge heard oral argument on January 27, 2012. The judge concluded that there was sufficient credible evidence in the record to support the Board's decision to grant the variances. The judge entered an order dismissing the complaint with prejudice. This appeal followed.

We begin by considering the legal principles that guide our analysis. In reviewing a zoning board's decision, we are bound by the same standard as the trial court. Grubbs v. Slothower, 389 N.J.Super. 377, 382 (App. Div. 2007). Decisions of zoning boards to grant or deny applications constitute quasi-judicial actions of municipal administrative agencies, Willoughby v. Planning Bd. of Deptford, 306 N.J.Super. 266, 273 (App. Div. 1997), and they are presumed valid. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002). Zoning boards "'must be allowed wide latitude in the exercise of [their] delegated discretion'" because of their special knowledge of local conditions. Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adjustment, Sea Girt, 184 N.J. 562, 597 (1965)); see also Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005).

A municipal board's fact-finding should control if supported by substantial evidence in the record, but a court of law is not bound by the board's determination on legal matters. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993); Grubbs, supra, 389 N.J.Super. at 383. Nevertheless, due to its thorough familiarity with local conditions and the community's characteristics, courts usually accord deference to a board's interpretation of its zoning ordinance. Grubbs, supra, 389 N.J.Super. at 383.

For this reason, a board's decision will only be set aside if it is "'arbitrary, capricious, or unreasonable.'" Berkeley Square Ass'n, Inc. v. Zoning Bd. of Adjustment of Trenton, 410 N.J.Super. 255, 263 (App. Div. 2009) (quoting Cell S. of N.J., supra, 172 N.J. at 81), certif. denied, 202 N.J. 347 (2010). The burden to prove arbitrary and capricious action is always on the plaintiff. Cell S. of N.J., supra, 172 N.J. at 81. We owe less deference, however, to the grant of a variance than its denial. See Medici v. BPR Co., 107 N.J. 1, 21-22 (1987).

Price first contends that, because the proposed structure is not a garden apartment under Union City's ordinance, the applicant needed a prohibited use variance, not a conditional use variance. We find this argument to be without merit.

Although both are "special reasons" variances, a prohibited use variance allows the applicant to engage in a use not permitted in a zone, while the conditional use variance allows the applicant to engage in a use permitted under certain conditions, despite failure to completely meet those conditions. Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 287 (1994). Price's argument ignores the fact that it is the inability of the proposed conditional use to meet all the conditions of the use that triggers the need for an application for a conditional use variance. "A variance for a deviation from a condition allows the applicant to engage in a conditional use despite the applicant's failure to meet one or more of the conditions[.]" Ibid.

Moreover, an applicant's inability to comply with some of the zoning ordinance's conditions need not materially affect the appropriateness of the site for the proposed conditional use. Id. at 297. The critical question in determining which variance should be sought is the nature of the deviation from the zoning ordinance. Id. at 297-98. Here, the defining feature of a garden apartment is the height of the structure and its use as a residential building with a limited number of apartments. Plainly, the applicant's two and one-half story, six-unit building meets these basic features. The fact that the property does not meet many of the ordinance's peripheral specifications for a garden apartment simply highlights the need for a conditional use variance. See id. at 298.

Price next maintains that, even if a conditional use variance application was appropriate, the Board's decision to grant such a variance here was arbitrary, capricious, and unreasonable because the applicant did not satisfy the special reasons requirement. We disagree.

Although authorizing the granting of use variances, the MLUL "carefully defines the grounds on which that authority may be exercised." Himeji, supra, 214 N.J. at 284. The MLUL sanctions use variances where the applicant shows that the variance "can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70. The grant of a use variance "requires proof of both positive and negative criteria." Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 156 (1992).

With respect to the positive criteria, where, as here, the desired use is not inherently beneficial to the public good, the applicant must show "special reasons" why the variance should be granted. Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 386 (1990). Such special reasons may include the promotion of health and safety, the prevention of sprawl, and the creation of a desirable visual environment. See ibid. In particular, the applicant must show that the proposed use is "peculiarly fitted to the particular location for which the variance is sought." Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268, 279 (1967); see also Medici, supra, 107 N.J. at 18.

Additionally, with respect to the negative criteria, the focus is site specific and requires an assessment of the proposed variance's impact on the surrounding properties and consideration of whether it will cause "damage to the character of the neighborhood." Id. at 22 n.12 (citing Yahnel v. Bd. of Adjustment of Jamesburg, 79 N.J.Super. 509, 519 (App. Div.), certif. denied, 41 N.J. 116 (1963)). The potential benefits must preponderate over that damage in order to weigh against the proposed variance. See Yahnel, supra, 79 N.J.Super. at 519.

Further, applicants seeking a use variance must offer "an enhanced quality of proof . . . 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. Such enhanced proof "must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Ibid.

The applicant's burden in seeking a conditional use variance, however, is not as stringent as a prohibited use variance. Coventry Square, supra, 138 N.J. at 287; CBS Outdoor, Inc. v. Lebanon Planning Bd., 414 N.J.Super. 563, 579-80 (App. Div. 2010). "Proofs to support a conditional-use variance need only justify the municipality's continued permission for a use notwithstanding a deviation from one or more conditions of the ordinance." Coventry Square, supra, 138 N.J. at 298. This is because the use is approved for the district under certain conditions, but the applicant's proposed use deviates from one or more standards or specifications imposed on such use. Coventry Square, supra, 138 N.J. at 287; CBS Outdoor, supra, 414 N.J.Super. at 580.

A reviewing court must look at the same criteria in both cases, but the level of proofs required to satisfy negative criteria differs. Coventry Square, supra, 138 N.J. at 293 (citing Tullo v. Twp. of Millburn, 54 N.J.Super. 483, 491 (App. Div. 1959)). "Thus, a conditional-use variance applicant must show that the site will accommodate the problems associated with the use[.]" Id. at 299.

We are satisfied that the record contains sufficient credible evidence for the Board's finding that the applicant met the criteria for issuance of the conditional use and other variances. The building contained substandard, illegally constructed units that had been built many years ago. The proposed modifications would further the purposes of zoning, by creating desirable, safe, aesthetically improved apartments in a prime location near mass transport.

Similarly, as the experts testified, the variance would not be detrimental to the general welfare, would not impair the zoning plan, and would not negatively impact the surrounding areas and properties. The existence of the two basement apartments for over thirty years without any evidence of negative impact supports this testimony.

In sum, the Board's decision reflects that it considered the evidence presented to it and reasonably determined that the applicant had satisfied its statutory burden under N.J.S.A. 40:55D-70(d). The decision was not arbitrary, capricious, or unreasonable.

Finally, Price argues that the applicant did not provide separate "special reasons" for a density variance, N.J.S.A. 40:55D-70(d)(5), and that the variances substantially impaired the zoning ordinance. We have thoroughly considered these arguments in light of the record and conclude they are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).


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