Opinion
DOCKET NO. A-5795-11T3
07-01-2013
MICHAEL TRACHTENBERG, Plaintiff-Appellant, v. SGS DEVELOPMENT, LLC and THE ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF EDGEWATER, Defendants-Respondents.
Elaine Berkenwald argued the cause for appellant. Brian M. Chewcaskie argued the cause for respondent SGS Development, LLC (Gittleman, Muhlstock & Chewcaskie, L.L.P., attorneys; Mr. Chewcaskie and Nylema Nabbie, on the brief). Robert Montecallo argued the cause for respondent Zoning Board of Adjustment of the Borough of Edgewater (Biagiotti, Marino & Montecallo, P.C., attorneys; Mr. Montecallo, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Harris.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3449-11.
Elaine Berkenwald argued the cause for appellant.
Brian M. Chewcaskie argued the cause for respondent SGS Development, LLC (Gittleman, Muhlstock & Chewcaskie, L.L.P., attorneys; Mr. Chewcaskie and Nylema Nabbie, on the brief).
Robert Montecallo argued the cause for respondent Zoning Board of Adjustment of the Borough of Edgewater (Biagiotti, Marino & Montecallo, P.C., attorneys; Mr. Montecallo, on the brief). PER CURIAM
Plaintiff Michael Trachtenberg appeals from the Law Division's June 19, 2012 judgment dismissing his action in lieu of prerogative writs because "the decision of the Zoning Board of Adjustment of the Borough of Edgewater in approving the settlement entered into between SGS Development LLC and the Zoning Board was not arbitrary, capricious or unreasonable." We reverse.
I.
In April 2009, SGS Development filed a development application with the Board of Adjustment for site plan approval and variances to construct a nine-story residential building at 1122-1124 River Road in Edgewater. The 16,532 square-foot, steeply sloped trapezoidal parcel was assembled from three lots, upon which a two-family residential structure and separate two-car garage were previously built. The property is located in Edgewater's R-3 Multifamily Residential District.
The assembled parcel is a "through lot," which Edgewater defines as "[a] parcel of land which extends through from one street to another." Here, the parcel fronts on both River Road and Route 5, with the River Road lot line being eighty-two feet lower in elevation than the lot line on Route 5. In other words, the lot slopes steeply upwards from east to west.
Lots 2.01, 2.02, and 4 in Block 32.
The proposed nine-story building — with its zigzag architecture facing the Hudson River — would contain ten dwelling units built over a parking garage. The R-3 zoning district permits an array of residential uses including single-family dwellings, single-family detached cluster residential dwellings, community residences, two-family dwellings, garden apartments, and townhouses. The zone allows a building to have a maximum of three stories and a height of thirty-five feet. Density in the R-3 zone is twelve dwelling units per acre.
The proposed structure's height was 105.5 feet, measured from the roof to the lowest floor.
The proposed structure's density was approximately twenty-six units per acre.
The development application required several (d)-type variances under N.J.S.A. 40:55D-70(d), including a (d)(5) density variance, a (d)(6) variance for building height in feet, and a (d)(6) variance for building height in number of stories. At least six dimensional variances were also required under N.J.S.A. 40:55D-70(c), plus the project violated several provisions of Edgewater's regulations governing critical slope areas, also known as steep slopes. SGS Development did not apply for a (d)(1) variance, and, perforce, the Board of Adjustment did not grant one.
N.J.S.A. 40:55D-70(d)(1) provides for a special reasons variance "to allow departure from regulations . . . to permit: (1) a use or principal structure in a district restricted against such use or principal structure."
Public hearings were held on the application between July 2009 and February 2010. During the course of these hearings, expert testimony was presented by the applicant and by an objector. The Board of Adjustment received and considered additional expert reports from its planner and engineer. Members of the public voiced their concerns about the proposed plan. Ultimately, the Board of Adjustment voted to deny the application.
On April 7, 2010, the Board of Adjustment adopted a resolution memorializing the denial. In relevant part, the Board of Adjustment determined
that the height of the proposed structure negatively impacts the view enjoyed by the neighborhood, and the public in general, from the Route 5 area. The view is unique and includes the Hudson River and the City of New York. The Board finds that by granting the requested D(6) height variance, the application would be negatively impacting the aforementioned view, a vista unique to Edgewater, and thereby causing a substantial detriment to the public good.
The Board finds that the Applicant has failed to satisfy the "negative criteria"
for granting the Height Variances requested by Applicant, as the variances cannot be granted without substantial detriment to the public good.
[] As the applicant has failed to satisfy the requirements for the granting of a D(5) [sic] Height variance, the Application will be denied. As such, there is no reason to review the adequacy of the D(6) [sic] Density variance and the requested "C" variances.
In short order, SGS Development filed a complaint in lieu of prerogative writs seeking, among other things, reversal of the application's denial and compelling the Board of Adjustment to adopt a resolution of approval. At the suggestion of the Law Division judge assigned to the matter, SGS Development and the Board of Adjustment entered into settlement discussions. Trachtenberg was neither a party to that action nor, as far as the record reveals, a participant in the settlement negotiations.
SGS Development thereafter offered to reduce the height of the building, but not to adjust any other feature of the development, including the number of dwelling units and stories. On November 3, 2010, the Board of Adjustment adopted a resolution stating that the proposed plan was conditionally acceptable to five members. The resolution called for the Board of Adjustment to hold a public hearing and "vote on applicant's revised plans in accordance with the dictates of Whispering Woods v. Middleton Twp., 220 N.J. Super. 161 (Law Div. 1987)." The Law Division remanded the matter for the purpose of conducting such a hearing. The court neither approved nor disapproved of the terms of the settlement.
At the Whispering Woods hearing held on January 5, 2011, SGS Development presented one witness, its architect, to explain the impact of the revised plan's lower building height on neighboring properties. Because nothing else changed, SGS Development otherwise relied on its previous testimony and exhibits.
The architect explained that there had been no changes to the site plan itself, and the floor plan and square footage for each unit remained exactly as previously depicted. The only adjustment was to reduce the height of the building by slightly less than eleven feet. This was accomplished by reducing the ceiling heights in each unit, without sacrificing the number of units planned for the structure:
[W]e came back and proposed to lower the building, essentially, by a floor. We didn't take a floor off the building, we effectively removed the floor. We removed [eleven] feet from the top of the building, but what we did was we made the floors, the same number of floors, smaller dimension floor to floor.With the reduction, the roof deck line of the building (but not its transparent glass rail at the top of the building) would lay below a stone wall on Route 5, and thus be no longer readily visible to persons in that area.
Originally, they were [eleven] feet for a floor. . . . Now they're at [nine]-feet [eight]-inches. So we tightened up every
single floor. And it brought the building down by about [eleven] feet.
Three individuals, including Trachtenberg, continued to object to the now-revised application. At the conclusion of the hearing, the Board of Adjustment approved SGS Development's entire application by a vote of five to one. In its March 2, 2011 memorializing resolution, the Board of Adjustment declared, "the proposed project utilizes a unique building site in a manner that promotes proper zoning." It justified the grant of dimensional variances due to the "exceptional topographic conditions affecting the property, specifically it[s] steep slope and narrow frontage." The height variance "is required in part by the steep slope affecting the site" and "the site can accommodate the height variance as no western [sic] views are blocked by the development . . . and . . . the step-back architecture minimizes the disruption of view of neighboring properties." In granting the density variance, the Board of Adjustment stated, "the density of the project is in keeping with the surrounding area and will have no negative impact on the neighborhood." Lastly, the Board of Adjustment determined, "[t]he proposed multi-family residential building is a permitted use in the District."
On April 14, 2011, Trachtenberg filed the present action in lieu of prerogative writs, claiming, among other things, that the Board of Adjustment's decision was flawed because the applicant required a (d)(1) variance. After trial, the Law Division dismissed the complaint, affirming the Board of Adjustment's decision to approve the settlement as not arbitrary, capricious, or unreasonable. The judgment was accompanied by a twenty-page written opinion. This appeal followed.
II.
When we review a trial court's decision upholding or setting aside a local land use agency's disposition of a variance application, we apply the same standard as the trial court. See D. Lobi Enter., Inc. v. Planning/Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009). Recognizing that boards of adjustment "possess special knowledge of local conditions and must be accorded wide latitude in the exercise of their discretion," Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 167 (1992), and that board of adjustment decisions are presumed to be valid, Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005), we will set aside "[a] local zoning determination . . . only when it is arbitrary, capricious or unreasonable." Kramer v. Sea Girt Bd. of Adjustment, 45 N.J. 268, 296 (1965).
"[C]ourts 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). Insofar as a zoning decision involves individualized factfinding, a reviewing court considers whether the decision is supported by sufficient, credible evidence in the record. Powerhouse Arts Dist. Neighborhood Ass'n v. City Council of Jersey City, 413 N.J. Super. 322, 332 (App. Div. 2010), certif. denied, 205 N.J. 79 (2011). Furthermore, when a board has accepted or rejected the testimony of witnesses, assessing credibility, such a decision is conclusive on appeal, if reasonably made. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 434 (App. Div. 2009).
Under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, the Board of Adjustment is the principal arbiter of Edgewater's zoning ordinance. N.J.S.A. 40:55D-70(b). Nevertheless, "[a]lthough courts defer to the expertise of municipal agencies in reviewing discretionary exercises of an agency's statutory powers, the interpretation of an ordinance is primarily a question of law." Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). Accordingly, we give the Board of Adjustment no deference to the legal question of whether a (d)(1) variance was required, and the Law Division's interpretation of law is likewise subject to our de novo analysis. McDade v. Siazon, 208 N.J. 463, 473 (2011) (noting that the "'trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference'") (quoting Estate of Hanges v. Metro Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Trachtenberg argues that the Law Division erred in treating SGS Development's nine-story multifamily use and building as a "garden apartment." Instead, he contends that the proposed development constitutes a prohibited mid-rise or high-rise use, which is permitted only in Edgewater's R-4 (allowing "[g]arden apartments, townhouses, and mid-rise dwellings") and R-5 (allowing [h]igh-rise multifamily developments") zoning districts.
The Board of Adjustment's memorializing resolution did not explain its rationale for finding that a (d)(1) variance was not required. It simply listed the permitted uses in the R-3 zone and concluded in a one-sentence finding that "[t]he proposed multi-family residential building is a permitted use in the District." The Board of Adjustment ignored, or at least neglected to discuss, the well-researched views of an objector's planning expert who opined during the initial hearings that a (d)(1) variance was required because the principal structure — a "mid-rise structure, which is not a one or two-family or townhouse or garden apartment" — is prohibited in the zone.
The Law Division extensively addressed the interpretive dispute. It treated the Board of Adjustment's silence concerning why the use and principal structure were permitted in the R-3 zone as being answered by the post hoc argument that Edgewater's definition of "dwelling, garden apartment" embraced SGS Development's proposal. That definition provides as follows:
Dwelling, garden apartment — One or more multiple family buildings with dwelling units located one above the other, and/or side by side units, containing off-street parking, outdoor recreation facilities, landscaped areas and other pertinent facilities.
[Section 240-5 of the Land Use Ordinance of the Borough of Edgewater. ]
At the time of trial, the relevant ordinance was found in Chapter 249 of the 1975 Edgewater Code. Since that time, a new codification has changed the ordinance's references, but the definition of "Dwelling, garden apartment" did not change.
The trial court observed that although this was a "rudimentary definition," all of the experts agreed that "the building depicted in [SGS Development's] application and plans . . . fits the definition of garden apartment" because (1) "the structure is a multi-family building that contains dwelling units located one above the other"; (2) "it provides for off-street parking within the building"; (3) "the plans also show significant landscaped areas"; and (4) "fairly large outdoor terraces . . . can provide an area for outdoor recreation." Accordingly, "the application proposed a multi-family development that meets the criteria for a garden apartment and no use variance is required."
Using the individual dwelling units' balconies as recreation space arguably violates §240-126(D), which requires the "periphery of any recreation area shall be no closer to a residential structure than the minimum yard for that structure" and the recreation facilities may not "be smaller than 1/4 acre."
Our first point of departure from the Law Division's interpretation of the ordinance stems from the palpable incongruity of treating this nine-story stepped-back building as a garden apartment. Under the Law Division's literal analysis of the ordinance, a principal structure of any dimension — say, an apartment building three hundred feet tall and thirty stories in height — could qualify as a garden apartment as long as it provided units "one above the other," off-street parking, outdoor recreation facilities, and landscaped areas. We do not believe that the drafters of Edgewater's land use ordinance intended that result, particularly when the municipality's local legislation is read reasonably and in pari materia. We must consider the land use ordinance's plain meaning, in light of related provisions of the ordinance, to reach a sensible interpretation that is consistent with the governing body's intent.
In interpreting a municipal ordinance, we are obliged to "utilize[] the established rules of statutory construction[,]" Paff v. Byrnes, 385 N.J. Super. 574, 579 (App. Div. 2006) (citation omitted), and are therefore guided by certain, well-established principles. First, "words and phrases shall[,] . . . unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning. . . ." N.J.S.A. 1:1-1. We must "'look first to the plain language of the [ordinance], seeking further guidance only to the extent that the [governing body's] intent cannot be derived from the words that it has chosen.'" In re Petition for Referendum on Trenton Ordinance 09-02, 201 N.J. 349, 358-59 (2010) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009) (internal quotations and citations omitted)). Common law definitions of terms must be assigned, unless evidence exists suggesting the local legislature intended otherwise. See DiProspero v. Penn, 183 N.J. 477, 492 (2005) (stating courts ascribe the "ordinary meaning and significance" to statutory terms).
Furthermore, the land use ordinance "must be read in [its] entirety; each part or section should be construed in connection with every other part or section to provide a harmonious whole." Burnett v. County of Bergen, 198 N.J. 408, 421 (2009) (internal quotations and citations omitted). Lastly, we "may neither rewrite a plainly-written enactment of the [governing body] nor presume that the [governing body] intended something other than that expressed by way of the plain language." O'Connell v. State, 171 N.J. 484, 488 (2002). "The Court fulfills its role by construing a statute in a fashion consistent with the statutory context in which is appears." Mun. Council of Newark v. James, 183 N.J. 361, 370 (2005) (internal quotations and citation omitted).
The Edgewater land use ordinance divides the municipality into numerous zoning districts that permit residential uses. Three of those districts — R-3, R-4, and R-5 — are expressly labeled "Multifamily Residential District." However, multifamily residential uses are also permitted in the Senior Housing District, Mixed-Use Commercial/Residential Development District, and in three separately named Mixed-Use Districts.
The land use ordinance does not define the word "multifamily" even though the word is used in such phrases as "multifamily developments," "multifamily dwellings," and "multifamily residential." However, "Dwelling, multifamily" is defined as:
Dwelling, multifamily — A structure or building occupied or intended for occupancy as separate living quarters for more than two families, with separate cooking, sleeping and sanitary facilities for the exclusive use of the occupants of each unit.
[Section 240-5 of the Land Use Ordinance of the Borough of Edgewater.]
Viewing the totality of the residential zoning scheme, it is apparent that the R-3 zoning district is intended to be the least intensively developed of the multifamily residential districts. For example, it allows for the smallest minimum lot area (40,000 square feet), the lowest density (twelve dwelling units per acre), and the shortest height (three stories and thirty-five feet). The R-4 zone expressly permits "mid-rise dwellings" in structures of up to six stories and seventy feet in height, and allows thirty units per acre in density. The R-5 zone ratchets up the intensity of use by permitting "[h]igh-rise multifamily developments" soaring no higher than twenty stories and 220 feet in height and 100 dwelling units per acre in density.
The plain intendment of the land use ordinance's reference to "garden apartments" as a principal permitted use in the R-3 zone was something different from a mid-rise or high-rise use permitted in the R-4 or R-5 districts. If the governing body had intended that garden apartments embraced the type of use and structure in the present case, there would have been no need to expressly permit "mid-rise dwellings" in the R-4 zone and "high-rise developments" in the R-5 zone because "garden apartments" would have sufficed.
In the R-4 zone, "garden apartments" is a separately listed principal permitted use; in the R-5 zone, "[a]ny R-3 Zone permitted principal use" is listed as a principal permitted use.
In essence, the governing body — without enacting a concise definition of what a garden apartment use or structure is — provided that such be of moderate density, low height, with open space, off-street parking, and recreation facilities. The present development provides only the off-street parking component, and is plainly not a garden apartment within the contemplation of Edgewater's land use ordinance. Thus, a (d)(1) variance was required because not only is the proposed use not permitted in the R-3 zone, but the principal structure is similarly barred. Accordingly, the Board of Adjustment's approval of the entire application was legally flawed and the Law Division's judgment in favor of SGS Development and the Board of Adjustment must be reversed.
One well-respected authority defines the term as follows:
One or more two-or three-story multifamily structures, generally built at a gross density of 10 to 15 dwelling units per acre, with each structure containing 8 to 20 dwelling units and including related off-street parking, open space, and recreation facilities.
[Moskowitz & Lindbloom, The Latest Illustrated Book of Development Definitions 29, 124 (2004).]
We cannot agree with the trial court's view, as a matter of law, that the necessary recreational amenities of a garden apartment were provided in this case by the balconies attached to each dwelling unit. This belies common sense and negates the community feature of a garden apartment's intended outdoor recreational areas.
Our decision does not determine whether, if applied for, a (d)(1) variance could be proven. SGS Development is free to reapply to the Board of Adjustment for such relief. We do not order a remand, but leave it to the MLUL to guide the parties.
SGS Development contends that Trachtenberg's challenge in this case is misplaced. It asserts that because its approval was the product of a settlement of land use litigation, the judicial focus must be on the settlement, not the underlying approval, and to undo the settlement, Trachtenberg must surmount "a higher burden of proof" pursuant to Gandolfi v. Town of Hammonton, 367 N.J. Super. 527, 548 (App. Div. 2004). In other words, SGS Development suggests that the settlement immunized it from a merits review. We disagree, and conclude that Gandolfi fully endorses our analysis of the substantive land use issues.
In Gandolfi, the Hammonton Planning Board had granted conditional use approval for a twenty-nine lot cluster residential development, but denied the developer's application for a subdivision. Id. at 530. In the developer's subsequent action in lieu of prerogative writs, which also included damage claims against individual Planning Board members under 42 U.S.C.A. § 1983, the developer and Planning Board negotiated a settlement whereby the developer would submit a by-right subdivision plan that complied with all governing ordinance standards and would not require variances. Ibid. After extensive substantive review and three public hearings, the Planning Board "granted both preliminary and final subdivision approval with three design waivers by a six-to-zero vote." Id. at 537.
Individual objectors filed suit seeking to undo the subdivision approval, alleging, among other things, that the settlement discussions poisoned the independent decision-making involved in the ultimate land use decision and "the [Planning] Board's decision was arbitrary, capricious and unreasonable because the proposed plan did not comply with governing ordinance standards, including the Township Code respecting the provision of recreation facilities." Ibid.
The Law Division reversed the grant of the subdivision on the ground that the Planning Board's proceedings were tainted by the settlement process. Id. at 538. It did not address the substantive land use issues relating to the subdivision. We reversed and reinstated the subdivision approval, concluding that the challenged settlement discussions between the Planning Board and the developer "were of no consequence and did not taint the subsequent proceedings." Id. at 547.
In turning to the plaintiffs' "challenge [to] the grant of the by-right subdivision approval on the merits," we exercised original jurisdiction under Rule 2:10-5, and "[found] that the [Planning] Board's approval of the by-right subdivision [was] sustainable." Id. at 549. In the present case, unlike in Gandolfi, the Law Division addressed the merits of the (d)(1) variance. Accordingly, our task did not involve, strictly speaking, the exercise of original jurisdiction, but it did involve the de novo review of the legal question of whether a (d)(1) variance was necessary. This closely aligns with the mode of analysis that we conducted in Gandolfi, which process fully protects the public interest from any notion that a settlement of land use litigation — absent principles of preclusion or lack of timeliness — somehow automatically immunizes a local land use agency's action from substantive review.
Our determination is also fully consistent with Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use Bd., 407 N.J. Super. 404 (App. Div. 2009), where we reviewed the substantive land use challenge — whether a density variance was needed to effectuate the settlement — and found it unpersuasive. Id. at 425-30.
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In light of our determination that a (d)(1) variance was a prerequisite to SGS Development's application for development, we need not address Trachtenberg's other challenges to the Board's approval. The Law Division's judgment is reversed, and the Board of Adjustment's action, as memorialized in its March 2, 2011 resolution, is vacated.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION