Opinion
DOCKET NO. A-1880-14T1
07-20-2016
DANIEL DIDIO and JAMES NATALE, Plaintiffs-Appellants, v. JOSEPH FELICE AND WEST NEW YORK ZONING BOARD OF ADJUSTMENT, Defendants-Respondents.
Cynthia A. Hadjiyannis argued the cause for appellants. Kevin J. Coakley argued the cause for respondent Joseph Felice (Connell Foley LLP, attorneys; Mr. Coakley, of counsel and on the brief; Allyson M. Kasetta, on the brief). Kevin G. Boris argued the cause for respondent West New York Zoning Board of Adjustment (Shain, Schaffer & Rafanello, P.C., attorneys; Marguerite M. Schaffer, of counsel and on the brief; Mr. Boris, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1907-14. Cynthia A. Hadjiyannis argued the cause for appellants. Kevin J. Coakley argued the cause for respondent Joseph Felice (Connell Foley LLP, attorneys; Mr. Coakley, of counsel and on the brief; Allyson M. Kasetta, on the brief). Kevin G. Boris argued the cause for respondent West New York Zoning Board of Adjustment (Shain, Schaffer & Rafanello, P.C., attorneys; Marguerite M. Schaffer, of counsel and on the brief; Mr. Boris, on the brief). PER CURIAM
Plaintiffs Daniel Didio and James Natale appeal from an order of the Law Division relating to the approval of a final site plan and variances by defendant West New York Zoning Board of Adjustment (Board) permitting the applicant, defendant Joseph Felice, to build a six-story elevator apartment building in the Town of West New York (Town). The judge denied plaintiffs' request to void the approvals and dismissed their complaint. Having reviewed the record in light of applicable law, we affirm.
I.
The site in question is located at 6025-6031 John F. Kennedy Boulevard East (Boulevard East) and designated as Lots 34 and 35 in Block 36 on the Tax Map of the Town (the Property). The Property is a 9,160 square-foot, partially vacant lot, located on the corner of Boulevard East and Monitor Place. Felice filed an application with the Board for site plan approval and variance relief in connection with the construction of a six-story, elevator, multi-family apartment building (the Project). The Property is located in the Town's R-M, Medium Density Residential Zone District, which permits the construction of an elevator apartment development not exceeding "a height of 12 stories or 135 feet."
On June 24, July 11, and July 25, 2013, hearings for Felice's application for the construction of the Project were held before the Board, at which time defendant's experts testified. Albert Arencibia, a registered architect, testified as to the plan for the Project, which he described as "a six-story building, two floors of parking and four floors of residential, with a duplex on the fourth floor." The building would be "on the corner of Monitor fronting on JFK Boulevard right along the bend." The site itself is slightly less than 10,000 square feet and is not a "straight square lot." Arencibia described the on-site parking as a ground-floor garage with twenty-one parking spaces, and an additional twenty parking spaces on the second floor.
Arencibia proceeded to explain how the building would fit in with the existing structures in the Boulevard East neighborhood. Although a single-family home with a detached garage and an empty lot were currently on the Property, the adjacent Boulevard East lots contained buildings between five and eight stories. High rise buildings were also in the area. Arencibia testified that, with the exception of the existing single-family home, the Boulevard East neighborhood was essentially comprised of mid-rise buildings.
Arincibia testified that the building was designed to merge with the overall feel of the area. He stated, "we tried to look conceptually at what's happening in the neighborhood. . . . What we tried to do is a combination with different materials as far as kind of tying the building into the neighborhood, make it feel it is part of the neighborhood as well."
Engineer Carl Jenne testified concerning the variances and approvals being sought with respect to the Project. For example, Jenne stated that they were proposing a loading space of thirty feet on Monitor Place, which would require an approval from the Mayor and Council. Additionally, a variance would be necessary for the parking spaces, as they would be providing forty-one spaces, as opposed to the sixty-five spaces required by the Residential Site Improvement Standards (RSIS). The proposed aisles of the garages would be eighteen feet, rather than the recommended twenty-four feet. The size of the spaces themselves would be smaller than required by the Town ordinance.
Craig Peregoy, a licensed professional engineer, testified as an expert in traffic engineering. He began with a discussion of the existing traffic patterns in the area, noting that the heaviest volume of traffic was on Boulevard East. Monitor Place, in contrast, was lightly traveled. Peregoy explained that traffic delays were classified in a range from A to F, with "[l]evel of service A being the best or least delay and F being the wors[t] or the most delay." He testified that the intersection of Boulevard East, Monitor Place and Westover Place was "currently at a level of service B. There is certainly extra capacity available at the intersection." To ascertain the impact of the increased vehicles in the area on traffic, Peregoy looked at the likely number of vehicles that would be exiting the Property, and concluded there would be an increase of eight to ten vehicles per hour. Traffic delays would only increase at a rate of a few seconds per vehicle, and the threshold would remain at a service level of B.
Peregoy then addressed the issue of spaces within the parking garage. Peregoy testified that the census data predicted there would be 0.96 vehicles per dwelling unit, which translated into thirty-four parking spaces. The project would provide more than the average. Peregoy also asserted that the building had the same parking requirements as a garden apartment, and in a more suburban location, would be required to provide sixty-five spaces. He opined that the building was in a "more urban location than a typical garden apartment," with available off-site parking, as well as mass transit options, decreasing the number of parking spaces needed within the building.
John McDonough, a licensed professional planner, testified as to whether the Project should be approved. He divided his analysis into four parts: (1) a view of the existing conditions; (2) the application and accompanying research; (3) the Zoning Ordinance and the Master Plan, with a view of the relief sought; and (4) whether, under Municipal Land Use Law, (MLUL), N.J.S.A. 40:55D-1 to -163, variance relief would be justified under the circumstances.
Beginning with a view of the existing conditions, McDonough described the mass and scale of "the cube of what the applicant is putting here and how that fits within the other cubes in the area." McDonough stated that the neighborhood was comprised of different types of buildings, namely single-family residences, multi-family mid-rises, and high rises. He characterized the area as "evolving," stating that "we're constantly looking to repurpose sites in response to market demand, and that's what the applicant is doing here."
With regard to the existing space, McDonough testified that the project would be built on two lots. "One lot is a sheet of paper. It's a vacant lot, completely unproductive. . . ." He further described the lot as a "void in the streetscape, the missing tooth, if you will." He characterized the home on the other lot as "the only one that does not face Monitor Place. We have a nice row of homes working up and down [Monitor Place]. Only one house faces towards Boulevard East." He stated that the home "effectively turned its back on the neighborhood and is more a part of Boulevard East than . . . Monitor Place."
McDonough then discussed the plan for the Property. "Here we're looking at a brand new multifamily residential development that will be comprised of 35 apartments, 26 one bedrooms, nine two bedrooms, and some of the highlights included that self-sufficient off-street parking." He further testified that, "we have private access [to parking]. We have two levels of parking with gate control security. Two separate means into and out of the property." As for the aesthetic features of the project, McDonough described the "quality materials" the developer intended to use, including "significant glazing," a "nice tinting of windows," and "actual stone."
McDonough highlighted other improvements the Project would bring to the neighborhood. "We're looking at landscape architecture in terms of new street trees, decorative sidewalk and the like, and . . . the improvement of the width of that sidewalk along the front of the property. I believe the architect talked about bike racks on each level as well, to make this less of a reliance on the automobile. . . ."
McDonough testified as to other aspects of the Project, including the type of resident the property would attract. The "compact unit sizes in the range of 800 square feet . . . are more conducive to young professionals as opposed to families." McDonough testified the unit sizes would not generate "a significant amount of school-age children that would have an impact on your community and your school system."
McDonough then discussed the zoning issues. He listed the variances being sought. "We're looking at two D variances. The density variance is to allow for 35 units, whereas your zoning would allow for 16 units." The developer was also seeking a "floor area variance to allow for a floor area of just under 47,000 square feet, whereas the ordinance would allow for a floor area of just over 27,000 square feet."
The Project required (c) variances, which "are the bulk variances related to the lot dimensions." McDonough testified that, for an elevator apartment, "a 40,000 square foot lot would be required," as opposed to the available 9,000 plus square feet. Additionally, a lot width of 200 feet was required, as opposed to the actual lot width of 99 feet.
Three setback variances were being sought. First, along the front yard on Boulevard East, a fifteen-foot setback was required, while a zero-foot setback was being proposed. On the side yard, a ten-foot setback was required, while the proposed setback was zero feet on one side, and 1.06 feet on the other. Finally, with regard to the rear yard, a one-foot setback was being proposed, while the required setback was fifteen feet. McDonough testified as to the remaining variances. The Project required a lot coverage variance, as over ninety percent of the lot would be covered, while only seventy-five percent is permitted in the zone. An off-street parking variance was being sought for the loading zone. Relaxation of the RSIS requirements was needed, so that defendants could provide forty-one parking spaces as opposed to sixty-five. Finally, a sign variance was needed.
McDonough completed his analysis with a discussion of the MLUL. He testified that the focus was on "whether the site can overcome any problems that would be related to a greater intensity of use at this location." McDonough delineated several positive criteria, including the fact the development would bring in revenue to local businesses; would provide on-site parking and, in doing so, would not overburden the street system; and it would promote a "desirable visual environment" by taking an "unsightly vacant piece of property . . . and filling it with a mass that's on par with the buildings around it."
McDonough reviewed the negative criteria as well. He testified that the building would go against the property line of the apartment complex to the east, although it would meet the fire code requirement for fire safety. The building would not generate a significant amount of air pollution, water pollution, or refuse, and there were no serious security or safety flaws. Furthermore, the intensity of use would not result in unsafe movement in the neighborhood or congestion, and would not overburden public water, sewer or utility systems. Finally, the intensity of use would not impede the privacy or enjoyment of surrounding properties. McDonough concluded that the lot area was adequate to accommodate the proposed building, and while variances were being sought, the positive aspects of the Project outweighed any potential problems.
Following McDonough's testimony, several neighbors raised concerns as to quality of life and safety, given the proximity of the proposed development to existing structures. A central concern was the impact the proposed Project would have on its nearest neighbors. The building would be erected immediately next to a single-family home on Monitor Place, owned by plaintiff Didio. The residents living close to the Property were unhappy with the light and noise that would interfere with their quiet enjoyment of their properties. Didio, and other nearby residents, were concerned with the crowding of the buildings, since the developer was seeking a variance for the required fifteen-foot setback from Didio's home. The residents also voiced their concern about a loss of privacy at their homes and the setback variance requests. Plaintiff Natale also commented that the "proposed building is to[o] dense, to[o] close to the property line and to[o] tall. It does not fit in with the existing neighborhood of one and two-family homes." Increased traffic and strain on the resources of the community was also a frequent criticism. In addition, several neighbors expressed concern with their enjoyment of their own properties, complaining about the loss of light to the houses near the Project.
In addition to defendant's experts, the Board also received and considered reports of Board planners Joseph Layton and Sanyogita S. Chavan, and Town engineer Robert Russo.
On December 12, 2013, the Board, with only one negative vote, approved the Felice application. It adopted a resolution memorializing the December 12, 2013 approval on February 27, 2014. The resolution stated that Felice "provided adequate proof in support of granting the application for the approvals sought." The resolution also stated that Felice satisfied the burden of proof pursuant to the MLUL and that "the benefits of granting the variances and approvals sought substantially outweigh any detriment." It concluded that "the overall objectives of the MLUL and the Town's Zoning Ordinance and Master Plan are met with the approval of the application as conditioned herein."
On April 28, 2014, plaintiffs filed an action in lieu of prerogative writ seeking to void the Board's approval. Plaintiffs argued that the applicant never applied for and never received a (d)(1) use variance for a proposed elevator apartment building; the planner failed to address how the site could accommodate the problems associated with the higher density and higher floor area ratio (FAR); and there was insufficient proof that the benefits of the setback variances in the front, rear and side yards outweighed the detriments.
The court dismissed all counts of the complaint, relying primarily on the expert testimony given before the Board that the Project would "represent an improvement over the existing situation" as the land would be used more efficiently, rather than lying "fallow" and "unproductive"; the proposed use would "promote the free flow of traffic" by meeting parking requirements; the project would advance a "desirable visual environment" and would not overburden the street system; the materials used would be consistent with neighborhood aesthetics; the size of the units would attract young professionals rather than families; and the impact of the building on air and light would be "negligible." The Law Division judge concluded that the Board's actions were not arbitrary, capricious or unreasonable and entered an order dismissing plaintiffs' complaint. This appeal followed.
Plaintiffs raise the following five issues on appeal:
I. FELICE FAILED TO APPLY FOR THE NEEDED d-1 VARIANCE.
II. THE SPECIAL REASONS FOR THE d-4 FAR VARIANCE AND FOR THE d-5 DENSITY VARIANCE ARE INADEQUATE TO SUSTAIN THE BOARD'S DECISION TO GRANT SUCH VARIANCES.
III. THE TRIAL JUDGE FAILED TO WEIGH THE DETRIMENTS AGAINST THE BENEFITS WHEN REVIEWING THE BOARD'S GRANT OF "C" VARIANCES.
IV. THE VARIANCES GRANTED SUBSTANTIALLY IMPAIR THE MASTER PLAN.
V. THE VARIANCES GRANTED IMPAIR THE ZONING ORDINANCE.
II.
"Our standard of review for the grant or denial of a variance is the same as that applied by the Law Division." Advance at Branchburg II, LLC v. Twp. of Branchburg Bd. of Adjustment, 433 N.J. Super. 247, 252 (App. Div. 2013). "[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)). A zoning "board's decisions enjoy a presumption of validity, and a court may not substitute its judgment for that of the board unless there has been a clear abuse of discretion." Ibid. Thus, "courts ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58-59 (1999).
However, we note that "the interpretation of an ordinance is primarily a question of law." Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).
"In evaluating a challenge to the grant or denial of a variance, the burden is on the challenging party to show that the zoning board's decision was 'arbitrary, capricious, or unreasonable.'" Price, supra, 214 N.J. at 284 (quoting Kramer, supra, 45 N.J. at 296). If "the decision of the Zoning Board was not arbitrary, capricious, or unreasonable, it must be sustained." TSI E. Brunswick, LLC v. Zoning Bd. of Adjustment of E. Brunswick, 215 N.J. 26, 47 (2013).
We are also guided by the Court's explanation that:
N.J.S.A. 40:55D-70(c)(2) permits a variance for a specific property, if the deviation from bulk or dimensional provisions of a zoning ordinance would advance the purposes of the zoning plan and if the benefit derived from the deviation would substantially outweigh any detriment. The applicant bears the burden of proving both the positive and negative criteria.
For a (c)(2) variance, approval must be rooted in the purposes of the zoning ordinance rather than the advancement of the purposes of the property owner. Thus, the positive criteria include proof that the characteristics of the property present an opportunity to put the property more in conformity with development plans and advance the purposes of zoning. . . . [T]he negative criteria include proof that the variance would not result in substantial detriment to the public good or substantially impair the purpose of the zone plan.
[Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 30 (2013) (citations omitted).]
Plaintiffs contend that because defendant's application required FAR, density, lot size, lot coverage, parking and setback variances, a N.J.S.A. 40:55D-70(d)(1) use variance should also have been required. Plaintiffs' argument conflates the Property's "use" with the physical requirements for the Project imposed by the Town. Plaintiffs recognize that in a R-M district, the Town's "Schedule of District Regulations" provides that "[a]partment developments" are a principal use "[a]llowed by [r]ight." However, they contend § 414-15A of the Municipal Code, which sets forth certain physical requirements for elevator apartment developments, must be met in order for the Project to be a permitted use. We disagree.
First we address whether the Project is a "conditional use." The MLUL defines a "conditional use" as
a use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use as contained in the zoning ordinance, and upon the issuance of an authorization therefor by the planning board. [N.J.S.A. 40:55D-3.]In Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 298-99 (1994), the Court noted that, in circumstances where the variance is required to allow a nonconforming conditional use (the d(3) variance), the applicant must demonstrate that the site remains suitable for the use notwithstanding any nonconformity. Ibid. The Court noted a "use variance allows the applicant to engage in a prohibited use: It is the use that violates the ordinance." Id. at 287. Further, a conditional use is a use permitted in a particular zone, but only upon certain conditions. That is, a conditional use, as opposed to a prohibited use, is based on the premise that the use is generally suitable to a particular zoning district, but not at every location in the district. (Emphasis added). Id. at 294.
Here, the Project contemplates neither a prohibited use nor a conditional use. Rather, its intended use is permitted throughout the R-M district, because elevator apartment development is permitted "as of right" throughout the zone. Therefore, we agree with the trial judge that a N.J.S.A. 40:55D-70(d)(1) use variance was not required.
Plaintiffs also contend that defendant failed to demonstrate sufficient special reasons to support the Board's conclusion with regard to the FAR and density variances. "Density" is defined by the MLUL as "the permitted number of dwelling units per gross area of land to be developed." N.J.S.A. 40:55D-4. The Board has sole jurisdiction over applications that seek a variance from a zone's density restrictions. N.J.S.A. 40:55D-70; see also Commercial Realty v. First Atlantic, 122 N.J. 546, 562 (1991). Under the MLUL, FAR is calculated by taking the sum of the area of all floors of buildings or structures in square feet and dividing by the total area of the site in square feet. N.J.S.A. 40:55D-4.
A FAR variance may be granted by a board to allow "an increase in the permitted floor area ratio . . . ." N.J.S.A. 40:55D-70(d)(4). Because a FAR variance deals with permitted, not excluded, uses in the zone, an applicant for a "FAR[] variance need not show that the site is particularly suited for more intensive development. . . ." Randolph Town Center Assocs. v. Twp. of Randolph, 324 N.J. Super. 412, 416 (App. Div. 1999). Rather, "FAR variance applicants must show that the site will accommodate the problems associated with a proposed use with larger floor area than permitted by the ordinance." Id. at 417.
A similar circumstance arises in reference to a density variance under subsection (d)(5). The applicant for a density variance need not show the site is particularly suitable to more intensive development to prove special reasons; instead, zoning boards of adjustment should focus their attention on whether the applicant's proofs demonstrate "that the site will accommodate the problems associated with a proposed use with [a greater density] than permitted by the ordinance." Randolph, supra, 324 N.J. Super. at 417.
Plaintiffs argued before the trial judge, in effect, that there was insufficient evidence presented to the Board to support granting defendant's application. The trial judge, in his opinion, concluded that the experts' opinions supported the granting of the FAR and density variances. We agree. The approvals were supported by the record and we perceive no need for our intervention.
Next, plaintiffs assert that the trial judge failed to weigh the detriments against the benefits when reviewing the Board's grant of "C" variances. The MLUL authorizes a Municipal Board of Adjustment to grant variances from local zoning regulations in accordance with the provisions of N.J.S.A. 40:55D-70.
In relevant part, the statute provides that bulk or dimensional variances, also known as (c) variances, may be granted:
(1) Where: . . . (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property . . . the strict application of any regulation . . . would result in peculiar and exceptional practical difficulties to, or exceptional and undue
hardship upon, the developer of such property . . . ; [or] (2) where in an application or appeal relating to a specific piece of property the purposes of this act . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment . . . .
[N. J.S.A. 40:55D-70(c).]
Plaintiffs contend the trial court erred by failing to weigh the "detriments against the benefits." However, the record makes clear that the trial court reviewed the competent, credible evidence presented before the Board in concluding that the Board's decision in granting the variances was not arbitrary, capricious, or unreasonable. We determine the judge applied the correct standard of review and correctly decided this issue.
Finally, plaintiffs assert the variances substantially impair the Town's Master Plan and Zoning Ordinance. We find these contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We add only the following brief comment.
The Board determined "that the overall objectives of the MLUL and the Town's Zoning Ordinance and Master Plan are met with the approval of the application as conditioned herein." There was sufficient credible evidence in the record to support this determination, and we will not substitute our judgment for the decision of the Board.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION