PC AIR RIGHTS, L.L.C v. MAYOR AND COUNCIL OF THE CITY OF HACKENSACK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2905-08T12905-08T1

PC AIR RIGHTS, L.L.C.,

Plaintiff-Appellant,

v.

MAYOR AND COUNCIL OF THE CITY

OF HACKENSACK, THE CITY OF

HACKENSACK, and THE HACKENSACK

BOARD OF ADJUSTMENT,

Defendants-Respondents.

__________________________________

Argued February 3, 2010 - Decided June 28, 2010

Before Judges Wefing, Messano and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket No.

L-5350-05.

Andrew T. Fede argued the cause for appellant

(Herten, Burstein, Sheridan, Cevasco, Bottinelli,

Litt & Harz, attorneys; Mr. Fede, of counsel

and on the brief).

Priscilla J. Triolo argued the cause for

respondent Hackensack Board of Adjustment

(Law Offices of Richard Malagiere, attorney;

Ms. Triolo and Richard Malagiere, on the brief).

Respondents Mayor and Council of the City of Hackensack and the City of Hackensack have not

filed a brief.

PER CURIAM

Plaintiff appeals from a judgment entered by the trial court in January 2009 following the conclusion of remand proceedings we ordered. After reviewing the record in light of the contentions advanced on appeal, we affirm.

This appeal is the second time these parties have been before this court in connection with plaintiff's efforts to construct a high-rise apartment building in Hackensack. On each occasion, plaintiff has appealed from determinations of the trial court that impeded those development efforts.

We give the following brief summary of plaintiff's development efforts. Plaintiff is the contract purchaser of Lots 9 and 10 in Block 627 in Hackensack. The contract seller is New York Susquehanna and Western Railway Corporation; closing of the contract is contingent upon plaintiff securing the necessary development approvals. Lots 9 and 10 are not contiguous but are divided by Prospect Avenue, a north-south dedicated public thoroughfare. Lot 9, which is on the east side of Prospect, is the larger of the two; it consists of 151,940 square feet while Lot 10, on the west side of Prospect, has 49,595 square feet. Combined, the two lots total 201,535 square feet.

The contract of sale between plaintiff and the railway divided the two lots into three separate tracts, A, B, and C. It defined Tract A as "the fee of air space plus the easement for support and access over the [railway's] line" between Prospect Avenue and Summit Avenue. Summit parallels Prospect and lies one block to the west. Tract A occupies Lot 10. Tracts B and C are on Lot 9; Tract B runs between Prospect Avenue and Overlook Terrace and Tract C runs between Overlook Terrace and Second Street.

At the time plaintiff initially submitted its development application, in December 2003, Lot 10 was divided into two zoning districts, R-1, single family dwellings; and R-3, which permitted both single-family and multi-family dwellings while Lot 9 was divided into three zoning districts, R-3; R-2A, which permitted one and two family dwellings and garden apartments; and R-3B, which permitted professional office buildings as well as those uses permitted in R-2A.

Plaintiff sought approval for the construction of a twenty-three story high-rise apartment building, with associated appurtenances, all of which were to be located on the east side of Prospect Avenue, on Lot 9. Plaintiff proposed to erect this building over the railway's right of way, utilizing the air rights it proposed to purchase. Plaintiff's site plan application, however, utilized both Lot 9 and Lot 10 to satisfy requirements of the Hackensack zoning code. The City's code enforcement official deemed the site plan application incomplete because it was not accompanied by requests for use and bulk variances. Plaintiff appealed that determination to the Zoning Board of Adjustment (the "Zoning Board"), contending no variances were required. The Board, however, upheld the determination of the code enforcement officer in this regard.

While plaintiff's appeal was pending before the Zoning Board, the City amended its zoning ordinance in several regards, one of which was that that portion of Lot 9 which had been zoned R-3B was changed to R-2. After the Zoning Board passed its resolution upholding the determination with respect to the need for variance relief, plaintiff filed an action in lieu of prerogative writs seeking various forms of relief. Following a bench trial, the trial court concluded that the rezoning to R-2 constituted impermissible spot zoning. It also set aside the remainder of the zoning amendments on procedural grounds but granted the City the opportunity to correct those procedural defects. Further, it concluded that the fact that Lots 9 and 10 were not contiguous prevented the use of Lot 10 being included in the calculations for the development of Lot 9.

Plaintiff appealed the trial court's judgment to this court. After considering and disposing of each of plaintiff's challenges, we remanded the matter to the trial court for consideration of whether the City's zoning ordinance permitted the aggrandizement of non-contiguous lots for purposes of calculating compliance with the zoning code and whether the lot coverage restrictions contained in the City's zoning code were calculated on a per lot basis. We deemed that remand necessary in light of the fact that none of the parties had presented to us the relevant portions of the City's zoning ordinance. We also directed the trial court to consider, based upon its answers to those questions, whether plaintiff was required to seek variance relief to proceed with its proposed project. Plaintiff has appealed from the trial court's judgment that such aggrandizement of lots is not permitted under Hackensack's zoning ordinance and that the ordinance requires that the calculations to compute maximum coverage restrictions be done on a per lot basis.

We are satisfied the trial court was entirely correct in this regard. We note first that we are reviewing the trial court's interpretation of the City's zoning ordinance, and are thus dealing with a question of law. Our review, in consequence, is de novo. Mountain Hill, L.L.C. v. Zoning Bd. of Adjustment of Middletown, 403 N.J. Super. 210, 234-35 (App. Div. 2008) (stating, "[w]hen the sole issue before us is the meaning of language in an ordinance, the trial judge's determination is not entitled to any special deference because the issue is one of law which is always subject to review de novo."), certif. denied, 197 N.J. 475 (2009); Bubis v. Kassin, 184 N.J. 612, 627 (2005) (noting that "the meaning of an ordinance's language is a question of law that we review de novo").

In determining the meaning of an ordinance, the court should adhere to principles of statutory construction. Id. at 626. A court should construe an ordinance based upon the Legislature's intent and in a manner that is reasonable. Place v. Bd. of Adjustment of Saddle River, 42 N.J. 324, 328 (1964).

The issue that was before the trial court and is now before us is not, as plaintiff frames it, whether two lots that are not contiguous can be included in the same site plan. Rather, the question is whether Hackensack's ordinance allows for aggrandizement of two non-contiguous lots when considering the area, yard and bulk requirements of a proposed site plan.

Various provisions within the City's zoning ordinance indicate that the intent of the City was to use "lot" in the singular as the appropriate measure. Section 175-1.4 of the City's ordinance, for instance, states that one of its purposes is:

To regulate the intensity of use of zoning lots and to determine the areas of open spaces surrounding buildings necessary to provide adequate light and air, privacy and convenience of access to property owners and City emergency services[.]

[Hackensack, N.J., Zoning Ordinance and Map 175-1.4 (May 10, 2005).]

The ordinance defines a "lot" as "[a] designated parcel, tract or area of land established by a plat or otherwise as permitted by law and to be used, developed or built upon as a unit." Id. at 175-2.2. Lot coverage is "[t]hat portion of a lot which is occupied by buildings and accessory buildings but not including other areas of impervious surfaces such as walkways, driveways, patios and open parking lots." Ibid. A parcel is "[a] lot or a tract of land" while a "site is "[a]ny plot or parcel of land or combination of contiguous lots or parcels of land." Ibid. The ordinance further defines a site plan as:

[a] development plan of one or more lots on which is shown (1) the existing and proposed condition of the lot, including but not necessarily limited to topography, vegetation, drainage, flood plains, marshes and waterways, (2) the location of all existing and proposed buildings, drives, parking spaces, landscaping, structures and signs, lighting, screening devices, and (3) any other information that may be reasonably required in order to make an informed determination.

[Ibid.]

Clearly, Lots 9 and 10 cannot be deemed a "site" under the Hackensack ordinance since they are indisputably not contiguous.

Other portions of the ordinance's definitions also bolster our conclusion that the trial court correctly determined that Hackensack does not permit aggrandizement of non-contiguous lots to satisfy bulk and lot line requirements of the zoning ordinance. The ordinance defines on-site as being "[l]ocated on the lot in question" and off-site as "[l]ocated outside the lot lines of the lot in question but within the property (of which the lot is a part) which is the subject of a development application or within a contiguous portion of a street or right-of-way." Ibid.

We agree with the trial court that there is no support for plaintiff's contention that it should be permitted to aggrandize these two lots because there is no provision within the City's ordinance which specifically prohibits such aggrandizement. Aggrandizement is clearly contrary to the entire thrust of the ordinance and, moreover, has the clear capacity to permit a developer to evade long-settled bulk restrictions, to the detriment of adjoining owners and good planning.

We have considered whether the matter should again be remanded to the trial court in light of the trial court's failure to consider what variances plaintiff would have to seek in light of its decision with respect to aggrandizement. We have determined that no remand is necessary. Plaintiff submitted its application to the Board nearly five and one-half years ago. Much has occurred in the interim that could have a significant effect on the viability of plaintiff's proposal as it is currently framed and affect whether plaintiff wishes to revise its proposal if, indeed, it still wishes to pursue it at all. Those practical decisions will bear upon the question of variance relief, if plaintiff opts to go forward.

The order under review is affirmed.

 

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