LARRY PRICE v. UNION CITY LLC 608 24TH STREET LLC UNION CITY ZONING BOARD OF ADJUSTMENT (2013)

Plaintiff Larry Price (Price) filed a complaint in the Law Division, challenging a decision by the Union City Zoning Board of Adjustment (Board) to grant certain variances to defendants K & J Union City, LLC and 608 24th Street, LLC (the applicants).   Plaintiff appeals from an order entered by the trial court on October 3, 2012, dismissing his complaint with prejudice.   We affirm.

The applicants are owners of four contiguous lots, which form an irregular, rectangular lot that runs from 24th to 25th Street in Union City (City).   The property is located in the City's R–Zone, in which one, two and four-family residential buildings are permitted, with a limit of forty feet in height and a lot coverage of forty percent.

The applicants have operated a scrap metal yard on the property as a non-conforming use for more than twenty years.   They propose to develop the property by constructing two four-story, fifteen-unit buildings, one facing 24th Street and one facing 25th Street, over a partially-below-grade parking garage.   The structures as initially proposed would include thirty-two individual residential units and thirty-two parking spaces.   The building on 24th Street would be 55 feet high, and the building on 25th Street would be 59.5 feet high.   The parking garage will cover 100 percent of the lot, while the buildings would cover 80.5 percent of the property.

The applicants filed an application with the Board seeking variances required for the project pursuant to N.J.S.A. 40:55D–70, specifically a(d)(1) use variance, a(d)(5) density variance, a(d)(6) height variance, and other bulk variances.   The Board conducted hearings on the application, at which the applicants presented testimony from planner Edward Kolling, architects Dean Marchetto and Bruce Stieve, and traffic engineer Joseph Staiger.   Plaintiff opposed the application but presented no expert testimony.

The Board asked the applicants to reduce the number of units to thirty, in order to create several larger units.   The applicants agreed and the final plans submitted to the Board reflected the requested change.

The Board issued a resolution dated April 12, 2012, in which it found that the applicants had satisfied the positive and negative criteria for the issuance of a use variance and the other variances requested.   The Board authorized the applicants to develop the property in accordance with their plans and specifications, the City's zoning ordinances, building and health codes and other applicable statutes and regulations.

Thereafter, Price filed his complaint in the Law Division against the Board and the applicants.   Price challenged the grant of the (d)(1) use variance, the (d)(5) density variance, and the (d)(6) height variance.   He alleged that the applicants had not satisfied the criteria for the issuance of these variances.   He claimed that the Board's action in approving the application was arbitrary, capricious or unreasonable.   Price sought a judgment declaring the Board's resolution null and void.

The judge heard oral argument in the matter on September 20, 2012, and on September 24, 2012, placed his decision on the record.   The judge concluded that there was sufficient credible evidence in the record to support the Board's decision to grant the variances sought for the project.   The judge entered an order dated October 3, 2012, dismissing the complaint with prejudice.   This appeal followed.

Price argues that (1) the applicants failed to justify the issuance of a(d)(1) use variance;  (2) the applicants did not present an enhanced quality of proof for the use variance;  (3) the applicants did not prove special reasons for the (d)(5) density variance;  (4) no special reasons were provided for the (d)(6) height variance;  and (5) the variances granted impair the zoning ordinance.

We are satisfied from our review of the record that these arguments are without sufficient merit to warrant extended discussion.   R. 2:11–3(e)(1)(E).   We affirm the order dismissing the complaint with prejudice substantially for the reasons stated by the judge in the decision placed on the record on September 24, 2012.   We add the following.

A decision of a local land use board is presumed valid and the party attacking such action has the burden of proving otherwise.  New York SMSA Ltd. P'ship v. Bernard Twp. Bd. of Adjustment, 324 N.J.Super. 149, 163 (App.Div.) (citing Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965)), certif. denied, 162 N.J. 488 (1999).   On appeal from a zoning board decision, the trial court is limited to determining whether the board's decision was arbitrary, capricious or unreasonable.  Cell South of NJ, Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81–82 (2002) (citing Medici v. BPR Co., 107 N.J. 1, 15 (1987)).

Price claims that the applicants did not justify the issuance of a use variance pursuant to N.J.S.A. 40:55D–70(d)(1) and the trial judge erred by concluding otherwise.   We do not agree.   To obtain a use variance, an applicant must satisfy the so-called positive and negative criteria under the statute.   Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J.Super. 67, 75–76 (App.Div.2006).

To satisfy the positive criteria, the applicant must show “special reasons” to justify the issuance of the variance.  N.J.S.A. 40:55D–70(d)(1).   The applicant also must satisfy the negative criteria, which requires proof 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(d).

To satisfy the positive criteria, the applicant must show that “ ‘the use promotes the general welfare because the proposed site is particularly suitable for the proposed use.’ ”  Smart SMR of New York, Inc. v. Borough of Fair Lawn, 152 N.J. 309, 323 (1998) (quoting Medici, supra, 107 N.J. at 4).   To satisfy the negative criteria, in matters that do not involve an inherently beneficial use, the applicant also must present an enhanced quality of proof and secure “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.

We are convinced that there was sufficient credible evidence in the record for the Board's finding that the applicants had satisfied the criteria for issuance of the use variance.   The record supports the Board's finding that the applicants satisfied the positive criteria for issuance of the variance.   The applicants established special reasons for the variance, showing that the property is particularly suitable for the proposed use.

The proposed structure will replace a non-conforming industrial use with a residential use, compatible with other permitted uses in the R–Zone.   Moreover, the buildings will provide the City with needed housing.   Kolling testified as to the City's need for new housing.   He noted that about eighty percent of the City's housing stock was built before 1960.

In addition, the property is well suited to the use, in terms of its location, which is in close proximity to public transportation.   Marchetto opined that the site is particularly suited for the proposed use based on its size and its shape as a through lot between two streets, which is not common in the City.

Kolling also testified that there are no other available parcels of land in the City of sufficient size in an area zoned for high-rise buildings.   While Price maintains that Kolling failed to present sufficient support for this assertion, zoning boards of adjustment are allowed wide latitude in their delegated discretion because of their peculiar knowledge of local conditions.   Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005).

The record also supports the Board's determination that the applicants established the negative criteria and also presented an enhanced quality of proof showing that the variance sought is not inconsistent with the intent and purpose of the zone plan and ordinance.   As the Board noted in its resolution, the area in which the proposed structures will be built is in a state of transition to multi-family use and the variances would not change the character of the community.

The Board also noted that the proposed use would advance many goals of the master plan, including providing a balance of land uses and development patterns, providing a range of housing choices, promoting and reinforcing the City as a desirable place to reside, and improving the quality of life for the City's residents.   As the trial judge found, the expert testimony supported the Board's findings.

We have considered Price's other contentions and conclude that they are without sufficient merit to warrant discussion.   R. 2:11–3(e)(1)(E).

Affirmed.

PER CURIAM