LARRY PRICE v. MALAS ENTERPRISES 2, LLC and UNION CITY ZONING BOARD OF ADJUSTMENT -

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5422-06T25422-06T2

LARRY PRICE,

Plaintiff-Appellant,

v.

MALAS ENTERPRISES 2, LLC,

and UNION CITY ZONING BOARD OF

ADJUSTMENT,

Defendants-Respondents.

______________________________

 

Argued June 24, 2008 - Decided

Before Judges Cuff and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Docket No.

L-5395-06.

Larry Price, appellant, argued the cause pro se.

Santo T. Alampi argued the cause for respondent

Malas Enterprises 2, LLC (Alampi & DeMarrais,

attorneys; Mr. Alampi, on the brief).

PER CURIAM

Plaintiff Larry Price appeals from the order of the Law Division upholding the decision of defendant Union City Zoning Board of Adjustment to grant defendant Malas Enterprises 2, L.L.C.'s ("Malas") application for a use variance and related bulk variances to construct a residential building. Plaintiff argues that the court erred because the Board's actions were not supported by the evidence presented, and that the applicant failed to establish special reasons for the relief requested. We agree with plaintiff's argument and reverse.

Malas owns property located at 138-144 36th Street, Union City, New Jersey; the site is currently vacant. Malas proposed to construct on this site a multifamily apartment building consisting of five residential floors, totaling thirty-five units, situated over three levels of above-ground parking. The property is located in an "R Zone," which permits principal residential uses of "one, two, and four family dwellings" and row houses for one family use. Conditional residential uses for this zone are "public housing developments for senior citizens" and "limited multi-family developments."

Union City's zoning ordinance does not define "limited multi-family developments." The ordinance does provide, however, that:

Note 21. Limited multi-family developments shall be permitted subject to site plan approval by the planning board and provided that:

(1) A sufficient land aggregate can be assembled to provide a site of at least 10,000 square feet.

(2) Such multi-family development would be compatible with the neighborhood in which it is contemplated, to be determined during the planning board's review for site plan approval.

(3) The requirements for garden apartment developments, as contained in Note 12, shall be met by the applicant.

[(Emphasis added).]

"Garden apartment developments" are one of only two types of apartment house envisioned by the Union City zoning ordinance:

18-3.5 Apartment House, Garden-Type. A residential structure of not more than three stories containing three or more dwelling units.

18-3.6 Apartment House, High Rise. A residential structure of more than three stories, containing three or more dwelling units and containing a heating plant which supplies heat to all tenants.

Note 12 of the zoning ordinance provides the following criteria for "garden apartment developments," relevant to this case:

(1) There shall be a minimum site of 10,000 square feet for each such garden apartment development.

(2) The number of dwelling units per net residential acre or fraction thereof shall not exceed 30 in three and one-half story structures and 25 in two story structures.

(3) The maximum percentage of any lot that may be covered by all structures shall not exceed 40 percent.

(4) There shall be provided a perimeter setback of at least ten feet from the right of way of a street on which a building fronts. Surface parking facilities, as permitted in this chapter, may take place within the perimeter setback provided such parking does not extend within three feet of a property line.

(5) No principal building shall exceed a length of 75 feet.

(6) No garden apartment building shall exceed a height of three and one-half stories or 50 feet, and no accessory structure shall exceed a height of one story or 15 feet.

(7) On site parking shall be provided at the following ratios: . . . 2-bedroom units - 1.5 parking spaces . . . .

(8) There shall be provided at least one loading space, as defined in this chapter for each development.

Note 13 of the ordinance deals with "high-rise apartment buildings:" a prohibited use in the R Zone. With respect to such high-rise buildings, the ordinance provides that "[n]o high-rise apartment building shall exceed a height of 22 stories or 230 feet." As noted above, "high-rise apartment buildings" are not permitted in the R Zone, either by right or as a conditional use.

Malas filed an application for site plan approval and variances with defendant Zoning Board. The Board considered the application in a series of hearings held on June 8 and July 13, 2006. Plaintiff was present at the hearings as an objector. At the hearings, both Malas and the Board treated the application as being for a "limited multi-family development," a conditionally permitted use in the R Zone. At the conclusion of the July 13 hearing, the Zoning Board voted unanimously to approve Malas's application. The Board's September 21, 2006 resolution memorializing the approval included the following recitation of Malas's project and of the variances requested:

2. The proposed multi-family residential building is conditionally permitted by special exception in the R Zone subject to the standards of note 12 and note 21 of the Union City zoning ordinance. The Board reviewed the proposal against the standards for the R Zone as well as the standards of Note 12 and Note 21 for mid rise development, where applicable.

3. Note 21 of the Union City zoning ordinance requires a lot area of 10,000 square feet. The site has an area of 9,624 square feet.

4. A maximum density of 30 units per acre is allowed in the R Zone. (note 12) The proposed project has 158 units per acre, which does not conform to the density requirements thereby necessitating a variance from the ordinance.

5. A maximum lot coverage, by buildings, of 40% is allowed for mid rise residential development in the R Zone. (note 12) The proposed building will cover 82.74% of the site.

6. A maximum building height of three and a half (3 1/2) stories and fifty (50) feet is permitted in the R zone. (note 12) The proposed building consists of 7 1/2 stories and has a height of 75.9 feet.

9. [sic] The Residential Site Improvement Standards requires the provision of parking based on a ratio of 1.8 parking spaces for each one bedroom unit 2 parking spaces for each two bedroom unit, which would require sixty-nine (69) parking spaces. The site plan provides for fifty-one (51) parking spaces, which does not conform.

Thereafter, plaintiff filed an action in lieu of prerogative writs, challenging the Board's approval. In an oral decision delivered from the bench, the trial judge rejected plaintiff's argument that Malas's project was a prohibited use requiring the enhanced "d(1)" variance standard, as set forth in Medici v. BPR Company, 107 N.J. 1 (1987). The court upheld the Board's determination that the proposed use was, in fact, a "limited multi-family development," a conditional use in the R Zone, and thus reviewable under the lesser "d(3)" standard of Coventry Square, Inc. v. Westwood Zoning Board of Adjustment, 138 N.J. 285 (1994).

We use the same standard of review required of the trial court. N.Y. SMSA v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). Although we begin with a presumption of validity, Jock v. Zoning Bd. of Adj. of Wall, 184 N.J. 562, 597 (2005), and with the understanding that we are not to substitute our judgment on factual matters for that of the Board, Fallone Props. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004), we are obliged to resolve the pertinent legal issues, Burbridge v. Governing Bd. of Mine Hill, 117 N.J. 376, 385 (1990).

Of course, the interpretation of a zoning ordinance is a legal issue, ultimately resolvable by courts. Schack v. Trimble, 48 N.J. Super. 45, 57 (App. Div. 1957), aff'd, 28 N.J. 40 (1958) (citing Honingfeld v. Byrnes, 14 N.J. 600 (1954)).

Here, we are satisfied that the trial court erred in concluding that the proposed project should be viewed as a conditional use. Under the Union City zoning ordinance, the proposed building is a high rise apartment house because it exceeds the height allowed for garden apartments. As we held in Price v. 13-14 Union, L.L.C., No. A-6490-06 (App. Div. May 21, 2008) (slip op. at 8):

Our conclusion is fortified by the use of the word "limited" before "multi-family developments" in the section of the ordinance indicating the conditional uses allowed in an "R" zone. That word, plus the zoning notes referenced, clearly indicate that although multi-family dwellings consisting of more than four units are a conditional use in this zone, high rise apartment houses are not.

We thus reverse substantially for the reasons expressed in Price, supra.

Reversed.

 

(continued)

(continued)

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A-5422-06T2

August 1, 2008