LOUIS PICARDO v. HOBOKEN ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3705-09T2

LOUIS and MARISSA PICARDO,

Plaintiffs-Appellants,

v.

HOBOKEN ZONING BOARD OF

ADJUSTMENT,

Defendant-Respondent,

and

JULIAN BRIGDEN and GRETCHEN

BRIGDEN,

Defendants/Intervenors-

Respondents.

______________________________

April 20, 2011

Argued March 14, 2011 - Decided

Before Judges Lisa, Reisner and Alvarez.

Onappeal fromthe SuperiorCourt ofNew Jersey, LawDivision, HudsonCounty, L-3389-09.

John P. Michalski argued the cause for appellantS (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Edward J. DePascale, of counsel; Mr. Michalski, on the brief).

Justin D. Santagata argued the cause for respondent Hoboken Zoning Board of Adjustment (Kaufman, Bern, Deutsch & Leibman, L.L.P., attorneys; Douglas M. Bern, of counsel and on the brief; Mr. Santagata, on the brief).

Jeffrey L. Kantowitz argued the cause for respondents Julian and Gretchen Brigden (Day Pitney, L.L.P., attorneys; Mr. Kantowitz, on the brief).

PER CURIAM

Plaintiffs Louis and Marissa Picardo appeal from a March 2, 2010 order of the Law Division dismissing their complaint in lieu of prerogative writs against defendant Zoning Board of Adjustment of the City of Hoboken (Board).1 We affirm.

I

The Picardos own a small apartment building located on Castle Point Terrace in Hoboken, an area currently zoned for one- and two-family houses. The Picardos contend that, before the zoning ordinance was amended in 2005 to reduce the number of allowable units to a maximum of two, they had five pre-existing units in their building. They contend that the five-unit apartment building was a pre-existing non-conforming use. The majority of the building was two stories, with a small partial third story at the front of the structure. The Picardos live in an apartment on the second floor.

In 2007, the Picardo's decided to expand their apartment by adding two bedrooms, a laundry room, two bathrooms and an elevator. The expansion required extending the building's existing partial third story to cover the entire second story. Instead of seeking a variance to expand their pre-existing non-conforming use, the Picardo's simply applied for a construction permit.2 On July 3, 2007, the City's acting zoning officer issued a first certificate of zoning compliance, and the construction official issued a construction permit on January 22, 2008.

Soon after plaintiffs commenced construction, their neighbors, Julian and Gretchen Brigden, filed suit to stop the construction. By order dated April 1, 2008, Judge Gallipoli remanded the matter to the Hoboken Zoning Board and directed the Brigdens to file with the Board "any appeals" from the determinations of the local zoning and construction officials approving the construction.

The Board issued a stop work order. Following a hearing on April 15, 2008, the Board also issued a decision on May 20, 2008, concluding that the Picardos needed a variance to expand their prior non-conforming use. According to the Board's May 20 decision, witnesses who testified at the hearing, including the Picardos' architect, described the building as having three apartments. Both the architect and the zoning officer claimed they did not know that the area had been down-zoned to only allow one and two family houses. Mr. Picardo, who was the former Hoboken tax assessor, did not testify at the hearing to explain that he acted under such a misunderstanding, if that was the case.

Following the Board's May 2008 decision, the Picardos filed the application for variance relief which gave rise to this appeal.3 Contrary to the evidence at the April hearing, the June 2, 2008 variance application described the existing structure as having five units. The application sought a variance to expand a nonconforming use, N.J.S.A. 40:55D-70d(2), and a bulk variance under N.J.S.A. 40:55D-70c(2), to allow a smaller side yard setback on one side. In the application, the Picardos admitted that they could expand their own apartment without adding to the dimensions of the building by "reclaiming one of the other units in the building." However, the application stated that "they [did] not wish to affect the lives of those residents."

The Board held several days of hearings on the application. One of the issues that arose at the hearing was the number of apartments in the building. The Picardos had changed architects after the April Board hearing, and their new architect, Russell Bodnar, testified that he had inspected the building and it had five apartments. Through their attorney, the applicants produced leases for four of the apartments, purporting to show that all four apartments had been continuously rented to tenants since before the 2005 zoning amendment. However, their counsel conceded that the Picardos had not obtained certificates of occupancy for these apartments, as required by Hoboken's municipal ordinance.

The Board members repeatedly asked that Mr. Picardo testify about the number of units in the building. The objectors' attorney did so as well, and asked the Board to draw a negative inference if he did not testify, pursuant to State v. Clawans, 38 N.J. 162, 170-71 (1962). However, Mr. Picardo did not testify.

The applicants presented the following additional testimony in support of their application. According to their planning expert, Edward Kollar, the building is in a historic district of Hoboken. He confirmed that the historic, peaked fa ade of the building would not be affected by the addition, which would not be visible from the front of the building. He agreed that the addition would not enhance the historic character of the building, but rather that it would not detract from it.

Kollar's explanation of the "special reasons" justifying the addition was that: it was unobtrusive; it continued the residential use of the building; and it encouraged the preservation of a historic structure. There was, however, no evidence that the Picardos intended to tear the building down if they could not expand their apartment. He also testified that granting the application would cause no harm to the public good, because the building would continue to have five units, and the "expansion will occur within the envelope that would be permitted even if this were a conforming use." In other words, if the building had only two units, a third floor could be added consistent with the zoning ordinance.

Kollar further testified that while an increase in density would be detrimental to the zoning ordinance, this variance would not increase density because the number of apartments would remain the same. But he admitted on cross-examination that enlarging the physical living space "affords the opportunity" for more intense use of the property. He did not know whether, once the apartment was enlarged, the Picardos could decide to rent it to tenants, such as a large group of students.

On cross-examination, Kollar agreed that the records of the tax assessor listed the building as only having three units. He also admitted that he had never been asked to determine whether the owners could achieve their objective (a larger apartment) without expanding the building, although he later stated that "you could do it with interior renovations."

The objectors presented expert testimony from Richard Lapinski, a professional planner. He testified that the proposed addition "dwarfs the buildings around it and is inconsistent with the density and scale of the neighborhood." He also opined that there was no factual basis for Kollar's testimony that granting the variance would enhance historic preservation, because there was no evidence that the building would be demolished if the variance was denied. Nor was there evidence that it would not be maintained if the variance was denied. He also testified that granting the variance would encourage "overuse of properties in terms of dwelling unit density." He opined that expanding the top floor would "decrease the provision of adequate light and air to adjacent lots" and would create "a jerry-built appearance. . . . It sticks out like a sore thumb."

Mrs. Brigden, whose house was located on a street behind the Picardos' house, testified that the partially-constructed addition blocked her light and open space, and destroyed her view of the New York City skyline. She testified that population density was an issue in the neighborhood: "It is parking. . . . It is just the density of people that are around all of the time, so . . . it would be much nicer to see the neighborhood as one and two-family homes." Consistent with that view, when she and her husband bought their house several years previously, they actually reduced the number of units from four to two. Several other neighbors also testified that the addition blocked light and air in the vicinity. Another neighbor testified that the addition was "a big square red box with modern windows" that was inconsistent with the historic character of the rest of the structure, and that it spoiled the view from the nearby park.

In denying the application for the (d) variance, the Board rejected the testimony of the Picardos' experts, finding that the "experts have not clearly and specifically articulated justifications in their testimony or reports, demonstrating the appropriateness of the 'd(2)' variance" in light of the existing zoning in the area. The Board also found that the applicant failed to show that the deviations from the provisions of the zoning ordinance would not substantially impair the "intent and purpose of the zone plan." In rejecting the (c) variance, the Board found that the project was inconsistent with the existing development in the area.

The Picardos then filed a complaint in lieu of prerogative writs challenging the Board's decision. In an oral opinion, issued on February 25, 2010, Judge Mary K. Costello concluded that "the [B]oard acted reasonably in determining that Picardo did not meet the positive and negative criteria" for a d(2) variance. She considered that the Board weighed the competing expert testimony and ultimately favored the testimony of the objector's expert, Lapinski. Specifically, the Board "accepted Lapinski's testimony that Picardo's application did not foster compatibility in scale, density and design pursuant to the master plan because the property far exceeds the maximum permitted density for the Castle Point district." The Board also credited Lapinski's view that "the portion of the property protected as [an] histor[ic] facade, was completely unrelated to the application and . . . the proposed expansion was not necessary to maintain the historic character of the property in the surrounding area." Therefore, the Board's denial of the variance was not "arbitrary, capricious or . . . unreasonable."

Addressing the denial of the c(2) variance, Judge Costello found that "the [B]oard accepted the testimony of Lapinski, who explained that approval of a C2 variance in this case would result in an expansion of a non-conforming structure and that no communal benefit would be served." Thus, "the [B]oard reasonably held that the C2 variance would only serve . . . to benefit the Picardos and not the community as a whole." Observing that under Kaufmann v. Planning Board Township of Warren, 110 N.J. 551, 563 (1988), a c(2) variance should not be granted when it will only advance the purposes of the owner, the judge found no basis to disturb the Board's decision.

II

The Municipal Land Use Law permits a landowner to continue a pre-existing lawful use of property after the zoning ordinance is amended in a manner that would prohibit the use. N.J.S.A. 40:55D-68. However, an expansion of the now non-conforming use requires a variance under N.J.S.A. 40:55D-70d(2). Such expansions are disfavored. Urban v. Planning Bd., 124 N.J. 651, 656 (1991).

Consistent with the balancing of interests represented by section 68 of the MLUL, prior nonconforming use is ordinarily restricted to its character and scope at the time the ordinance making it a nonconforming use was enacted; the use is not to be expanded. "Because non-conforming uses are inconsistent with the objectives of uniform zoning, the courts have required that consistent with the property rights of those affected and with substantial justice, they should be reduced to conformity as quickly as possible."

[Fred McDowell, Inc. v. Bd. of Adjustment of Wall, 334 N.J. Super. 201, 214 (App. Div. 2000), certif. denied, 167 N.J. 88 (2001) (citations omitted).]

To obtain a variance under N.J.S.A. 40:55D-70d(2), to expand a pre-existing non-conforming use, the applicant must prove both positive and negative criteria. Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 384-85 (1990). "To satisfy the positive criteria, the applicant must show that 'special reasons' warrant the variance." D. Lobi Enters., Inc. v. Planning/Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 357 (App. Div. 2009). "Because 'special reasons' takes its definition and meaning from the general purposes of the zoning laws, [courts] must look to the purposes of the Municipal Land Use Law . . . to determine what is a special reason." Burbridge, supra, 117 N.J. at 386 (internal citations omitted). The purposes of the MLUL are found in N.J.S.A. 40:55D-2, and include promoting the general welfare, providing adequate light, air and open space, establishing appropriate population densities and concentrations, promoting a desirable visual environment, and promoting the conservation of historic sites and districts.

"To meet the negative criteria, the applicant must show that the variance 'can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.'" D. Lobi Enters., supra, 408 N.J. Super. at 358 (quoting N.J.S.A. 40:55D-70(d)).

In reviewing a decision by a municipal zoning board we employ the same standard of review as the trial court. Id. at 360. A zoning board's "determinations are presumed to be valid and will only be overturned if they are unsupported by the record and 'so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion.'" Ibid. (quoting Ocean County Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 521-22 (App. Div.), certif. denied, 175 N.J. 75 (2002)).

Ordinarily, we give greater deference to a denial of a variance than to a grant, because "variances tend to impair sound zoning." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001). Thus, we give greater deference to a decision denying an expansion of a prior nonconforming use. Fred McDowell, supra, 334 N.J. Super. at 225. Viewed in light of these legal principles, this record provides no basis to disturb either the decision of the Board or that of Judge Costello.

For the first time on appeal, plaintiffs contend that they do not need a (d) variance because they are not actually expanding their non-conforming use. We ordinarily will not entertain issues raised for the first time on appeal unless they concern issues of the court's jurisdiction or of great public importance. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). This appeal concerns neither. The issue is not properly before us on this appeal, and we decline to address it.

Plaintiffs also contend that the Board's decision to deny the (d) variance was arbitrary and capricious, and insufficiently supported by factual findings. These arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

We agree with Judge Costello that in this case, the Board's statement of its reasons for denying the application was sufficient to justify the denial. While the Board could have done a more thorough job of setting forth its findings of fact, as opposed to mere recitations of the hearing testimony, it is clear from the Resolution that the Board credited the testimony of the objector's expert over that of the applicants' experts. That was the Board's prerogative. See Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 288 (1965).

Further, having read the hearing transcripts ourselves, we agree that the testimony of the applicant's planning expert was patently insubstantial. All of the expert's opinions fell apart when challenged. He admitted that the variance was not necessary to accomplish the applicants' goal of expanding their living space; they could have eliminated one unit and expanded their apartment within the existing structure. He was unable to cogently explain how the expansion served the purpose of historic preservation. There was no evidence that the property would be destroyed or not maintained if the applicants did not get the variances they sought. The building's important historic detail was in the fa ade, which was not part of the expansion.

There was no evidence that the expansion itself contained any historical detail. In fact, unrebutted testimony from the neighbors established that it was an eyesore with modern windows and no historic features. Further, the applicants presented no factual rebuttal to the testimony from many neighbors who attested that the partially-built extension was blocking their light, air and views. On this insubstantial record, the Board could not have granted a d(2) variance.4

Finally, on this record the applicants failed to prove the scope of the pre-existing use that formed the basis of their application. They conceded that the tax assessor's records reflected that the building had three units. Their initial construction application listed the building as having three units, and that was consistent with the testimony at the April Board hearing on the issue of whether they needed to apply for a variance.

Once the Board decided that they needed a variance, plaintiffs submitted an application reciting that the building had five units. But they presented no legally competent evidence to prove the pre-existing non-conforming use at that level. That is, they failed to support with evidence their essential contention that they had been continuously renting out four of those units to tenants since before the 2005 ordinance was adopted.

Despite the Board's request, Mr. Picardo did not testify. Nor did the tenants or anyone else with personal knowledge appear at the hearing to authenticate the leases proffered by plaintiffs' attorney. And, contrary to the municipal ordinance, plaintiffs never obtained certificates of occupancy for any of the apartments. Unless they proved the pre-existing occupancy of five separate apartments, plaintiffs were not entitled to apply for a variance limited to expanding the size of the fifth apartment. See Fred McDowell, Inc., supra, 334 N.J. Super. at 225. If they had expanded the use from three units to five, after adoption of the 2005 ordinance, they would have required an additional d(2) variance to legitimize that expansion.

Affirmed.

1 The March 2, 2010 order appears to be interlocutory, because it resolved only one of three consolidated cases then pending in the Law Division. However, in the interests of justice, we grant leave to appeal nunc pro tunc.

2 The Picardos also obtained approval from the municipal historic preservation commission, however, it appears from the later variance hearing before the zoning board that the commission was only concerned with the historic appearance of the building's fa ade.

3 We need not discuss here the other litigation, also filed in the Law Division, aimed at requiring the Picardos to demolish the partially-constructed addition.

4 At oral argument, the applicants' attorney understandably agreed that if we affirmed on the d variance issue, the appeal concerning the c variance would be moot. We therefore do not address the c variance.