LARRY PRICE v. PLANNING BOARD CITY OF UNION CITY et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1021-05T51021-05T5

LARRY PRICE,

Plaintiff-Appellant,

v.

PLANNING BOARD OF THE CITY

OF UNION CITY and 300-302

MOUNTAIN ROAD DEVELOPMENT,

LLC,

Defendants-Respondents.

_______________________________________

 

Submitted September 20, 2006 - Decided October 16, 2006

 

Before Judges Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. HUD-L-1993-05.

Libero D. Marotta, attorney for appellant.

Ortiz, Paster & Campos, attorneys for respondent City of Union City Planning Board (Wilfred J. Ortiz, II, of counsel; Monica Y. Cho, on the brief).

Kaufman, Bern & Deutsch, and Pojanowski & Trawinski, attorneys for respondent 300-302 Mountain Road Development, LLC (Paul Kaufman and Joseph A. Pojanowski, III, of counsel; Mr. Kaufman, Marilyn G. Gittleman and Edward A. Trawinski, Jr., on the briefs).

PER CURIAM

Plaintiff Larry Price (Price) appeals from an order entered by the Law Division on September 16, 2005 affirming the approval by defendant Planning Board of the City of Union City (Board) of a site plan submitted by defendant 300-302 Mountain Road Development, LLC (Mountain Road).

The facts pertinent to our decision are relatively straightforward. Mountain Road sought the approval by the Board of a site plan for the construction of a 21-story apartment building containing 32 units on property located at 300-302 Mountain Road in the R-MF district of the City's Steep Slope Overlay District (the "SSOD"). On December 14, 2004, the Board conducted a public meeting to consider the application. Mountain Road presented testimony from several expert witnesses: Robert L. Costa, a civil engineer; Jose I. Carballo, the architect; Louis Luglio, a traffic safety engineer; and Joseph Burgis, a professional planner.

Caraballo described the proposed structure. Caraballo said that the new structure would be built on the upper portion of the lot and would not extend beyond the point where the property begins to slope downward.

Burgis explained that there are two residential structures on the site that would be torn down and replaced by the proposed building. He testified that the most significant feature of the site is its "slope characteristics." He said that the northern half of the lot has a moderate to moderately steep slope which changes from an elevation of 214 feet down to approximately 190 feet. The property then slopes down to an elevation of about 70 feet. Burgis asserted that in the southern half of the site, the elevation changes at about a rate of 48%, a slope Burgis described as "very steep." He stated that this area is "heavily wooded" and none of it would be affected by the proposed development. Burgis opined that the proposed structure conformed to the City's master plan and the zoning ordinance.

Costa testified about the building, its styling, parking facilities, fire suppression system and provisions made for trash removal and recycling. A member of the Board questioned Costa concerning his calculation of the sleep slope density and Costa responded by asserting that the calculations conformed to the pertinent sections of the ordinance.

David Spatz, the Board's professional planner, testified that he reviewed the calculations of steep slope density and stated that the calculations conformed to the ordinance. Spatz explained:

What the ordinance does, basically, is it tracts out the undevelopable portions of the site so a developer [will] not get full credit for a property that cannot be developed. It . . . also discusses location on the property and [Mountain Road] meets the standards. [Mountain Road] subtracted out the undevelopable portions and this density does fit within what would be permitted once that calculation is done. They also are developing [the property] on the flatter portions, the already developed portions of the property.

Members of the public were permitted to comment about the proposed site plan. Plaintiff did not testify. Moreover, no expert testimony was presented to counter the evidence presented by Mountain Road.

The Board voted unanimously to approve the site plan with certain stipulations, including an agreement by Mountain Road that the master deed would include a restrictive covenant precluding any future development in the wooded portion of the lot. On January 25, 2005, the Board adopted a resolution memorializing its action. The Board also approved the form of the restrictive covenant, which states that the wooded area would be left in its natural vegetative state and not developed at any time in the future.

On April 14, 2005, Price filed this action in lieu of prerogative writs in the Law Division seeking reversal of the Board's approval of the site plan. Price alleged in his complaint that the Board erred in approving the site plan because, according to Price, the City's zoning ordinance only permits a density of 7 units on the site, not the 32 units proposed by Mountain Road.

Price moved for leave to present expert testimony setting forth a new formula for the density calculation. Judge Peter F. Bariso, Jr. denied the motion on August 4, 2005, ruling that the appeal must be decided based on the record created before the Board. The judge noted that Price could have appeared at the Board's hearing and presented his evidence but elected not to do so.

Trial in the matter took place on September 7, 2005. At the conclusion of the hearing, Judge Bariso placed his decision on the record. The judge rejected Price's contention that the Board's decision was arbitrary and capricious. He found that Price failed to establish that the Board erred in its interpretation and application of the zoning ordinance. Judge Bariso accordingly entered an order on September 16, 2005 affirming the Board's decision and dismissing the complaint.

Price appeals and raises the following arguments: 1) Mountain Road and the Board did not properly observe the provisions of the ordinance prescribing the allowable density in the SSOD; 2) Mountain Road's data did not support its proposed construction even on the upper portion of the lot; and 3) the trial judge erred by failing to consider Price's calculations of allowable density.

We have considered these contentions in light of the record before us on this appeal. We conclude that Price's arguments are entirely without merit and therefore affirm substantially for the reasons stated by Judge Bariso in his decision on the record on September 7, 2005. We add the following.

The principles which guide the judiciary's review of local government action in zoning matters is well established. As the Supreme Court stated in Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965):

A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.

Local officials "are thoroughly familiar with their community's characteristics and interests" and "are undoubtedly the best equipped to pass initially on" zoning matters. Id. at 296 (quoting Ward v. Scott, 16 N.J. 16, 23 (1954)). Municipal bodies must be "allowed wide latitude" because of their "peculiar knowledge of local conditions" and the courts should not substitute their "independent judgment" for that of the board in any factual dispute, nor "exercise anew" the jurisdiction conferred upon the local agency. Ibid. We apply these principles when reviewing a judgment of a trial court which has passed upon the validity of municipal action. New York SMSA v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004).

Here, the judge correctly determined that the Board had not acted arbitrarily or capriciously when it approved the Mountain Road site plan application. The Board's action was entirely in accord with the City's zoning ordinance.

Section 18-5.4e(1) of the ordinance states that the maximum number of dwelling units permitted on any lot in the SSOD is determined by multiplying the "Developable Area" of the lot by the "Allowed Density" and the applicable "Density Factor." The term "Developable Area" is defined in section 18-4.5e(2) to mean "the area of the site less any areas identified as cliff face." The term "cliff face" is defined in section 18-5.4b(2) of the ordinance as:

[A] sheer, nearly vertical slope of exposed bedrock. It shall be presumed, subject to rebuttal by competent evidence, that an area of land [if] it is so designated on the map entitled "Building Zone Map, City of Union city" as last amended.

It is undisputed that the City's Building Zone Map does not designate any areas of the City as "cliff face."

The term "Allowed Density" is defined in section 18-5.4e(3) to mean "the number of dwelling units permitted on the site in the District in which the site is located without regard to the Sleep Slope regulations." The "Allowed Density" in the R-MF district is a maximum of 110 units per acre. Ibid.

In addition, the "Density Factor" is determined based upon the "Average Slope" of the site. Section 18-5.4e(5). The formula for calculating the "Average Slope" is set forth in section 18-5.4e(4):

S [=] 0.0023 x I x L

A

As used in this formula, "I" is the "contour interval"; "L" is "the total length of contour lines" on the property but does not include "any contour line within an area of [c]liff face"; and "A" is the area of the site in acres "but not including [c]liff face." Ibid.

The site plan at issue here includes the developer's steep slope density calculations. The plan states that the "Developable Area" is 0.3 acres. According to the ordinance, the "Allowed Density" for the R-MF District is 110 units per acre. Section 18-5.4e(3). "Average Slope" of the property was determined by applying the formula in section 18-5.4e(4) of the ordinance. Thus, 0.0023 was multiplied by the "contour interval," which the plan states is 2 feet. That number was in turn multiplied by the total length of the contour lines, which is 319 feet. The resulting number was divided by 0.3, the "Developable Area" of the lot. This results in an "Average Slope" of 4.89%. According to Table 2 in section 18-5.4e(5), an "Average Slope" in the range of 0.0 to 5.0% results in a "Density Factor" of 1.0. Mountain Road multiplied the "Developable Area" (0.3) by the "Allowed Density" (110 units) times the "Density Factor (1.0), and arrived at a permitted density of 33 units for the site.

Price argues that the "Developable Area" is the entire lot, comprised of 0.624 acre, not 0.3 acre as asserted by Mountain Road. We disagree. Section 18-5.4e(2) of the ordinance plainly states that the "Developable Area" does not include any area that is considered to be "cliff face." The Board essentially accepted Mountain Road's assertion that about one-half of the lot consists of "cliff face," as that term is defined in section 18-5.4b(2).

There is ample support in the record for the Board's action. At the hearing, Burgis described the "slope characteristics" of the property, noting that the northern half of the lot has a moderate slope and the southern portion a "very steep" slope. Carballo also described the slope of the property in his testimony. In addition, the topography was detailed on the site plan itself. We can also presume that members of the Board were familiar with the character of the site. Kramer, supra, 45 N.J. at 296.

Price contends, however, that a portion of the Mountain Road development site could not be excluded as "cliff face" because it had not been designated as such in the City's Building Zone Map. The contention is without merit. As we pointed out previously, the City has not designated any area of the City as "cliff face." Contrary to Price's assertion, this does not mean that there is no "cliff face" in the City.

The definition of "cliff face" in section 18-5.4b(2) states that it will be presumed that property lies within the "cliff face" if so designated on the City's Building Zone Map. However, the ordinance does not state that property will only be considered "cliff face" if designated as such on the Building Zone Map. Because there has been no formal designation by the City of any areas as "cliff face," that issue must be decided based on the facts and circumstances related to a particular site plan application.

Price also disputes Mountain Road's calculation of "Average Slope" of the upper portion of the lot. He contends that the slope of the upper area of the site is approximately 26%, not 4.89% as asserted by Mountain Road. Price contends that, in arriving at an "Average Slope" of 4.89%, Mountain Road erred in its calculation of the total length of the property's contour lines. Price contends that the minimum length of nine contour lines that cross the upper portion of the site is 833.13 feet. Price says that the lengths of the eight contour lines which partially cross the site also should be included.

Again, we disagree. Costa, Mountain Road's engineering expert, testified as to the correctness of his site density calculations. Spatz, the Board's professional planner, testified that Costa's calculations were accurate. Price presented no expert testimony at the hearing to counter these opinions. Although Price sought leave to supplement the record in the trial court with a report of a professional engineer, the judge correctly denied the motion because Price's appeal must be decided based on the record created before the Board. See Goodfellows v. Washington Plan. Bd., 345 N.J. Super. 109, 112 n.1 (App. Div. 2001). We are satisfied that the Board's decision to accept Mountain Road's calcuation of "Average Slope" was based upon substantial and credible evidence.

Affirmed.

 

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A-1021-05T5

 

October 16, 2006