RICHMOND URF, LLC v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF JERSEY CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RICHMOND URF, LLC,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT

OF THE CITY OF JERSEY CITY

and ALAN CANCRO,

Defendants-Respondents.

_________________________________

August 15, 2016

Submitted May 24, 2016 Decided

Before Judges Reisner and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2492-14.

Winne, Banta, Basralian & Kahn, P.C., attorneys for appellant (Bruce R. Rosenberg, of counsel; R.N. Tendai Richards and Linda Torosian, on the briefs).

Rita Mary McKenna, attorney for respondent Alan Cancro.

Vincent J. LaPaglia, attorney for respondent Zoning Board of Adjustment of the City of Jersey City.

PER CURIAM

Plaintiff Richmond URF, LLC (Richmond) challenges the grant by defendant Zoning Board of Adjustment of the City of Jersey City (Board) of a height variance to defendant Alan Cancro pursuant to N.J.S.A. 40:55D-70(d)(6). We affirm.

I.

Cancro owned and sought to develop a vacant lot on Montgomery Street in Jersey City (Property). Richmond owned a three-story building next door. This portion of Montgomery Street is located in the Van Vorst Historic District. Cancro wished to construct a four-story, four-unit apartment building (Project) on the Property.

On July 26, 2013, Cancro applied to the Board for a height variance pursuant to N.J.S.A. 40:55D-70(d)(6).1 Cancro sought the height variance because his planned building on the Property would be 48.5 feet tall. In the Van Vorst District, buildings are only permitted to be four stories and forty feet in height.

Cancro received a "Certificate of Appropriateness" from the Jersey City Historic Preservation Commission. The Board then held public hearings on Cancro's variance application on February 20, 2014, and March 20, 2014.

Cancro proffered expert testimony from Elizabeth Fried and Kathryn Gregory, the Project's architect and planner, respectively. Cancro's experts testified that Cancro faced a hardship justifying a height variance because, after Superstorm Sandy, the Federal Emergency Management Agency (FEMA) amended its regulations to require that the first habitable floor of a building be thirteen feet above sea level, an increase of two feet. Cancro's experts added that the Historic Preservation Commission desired that the windows line up with the windows in the surrounding buildings. Cancro's experts also testified that a height variance was alternatively justified because the Project would still be consistent with the surrounding neighborhood. To counter their testimony, Richmond presented the testimony of a licensed planner, Eileen Banyra, and a licensed professional engineer, Craig Herman.2 The Board also heard from its staff member, Senior Planner Tanya Marione-Stanton, and two other witnesses.

After hearing the testimony, the Board unanimously voted to approve the project in a resolution dated April 17, 2014. On May 27, 2014, Richmond filed a complaint in lieu of prerogative writs in the Law Division against the Board and Cancro. On January 16, 2015, after hearing argument, the Law Division rejected Richmond's challenge to the Board's granting of the variance. Richmond appeals.

II.

"Our standard of review for the grant or denial of a variance is the same as that applied by the Law Division." Advance at Branchburg II, LLC v. Twp. of Branchburg Bd. of Adjustment, 433 N.J. Super. 247, 252 (App. Div. 2013). We must hew to that standard of review.

"[W]hen a party challenges a zoning board's decision through an action in lieu of prerogative writs, the zoning board's decision is entitled to deference." Kane Props., LLC v. City of Hoboken, 214 N.J. 199, 229 (2013). "[Z]oning boards, 'because of their peculiar knowledge of local conditions[,] must be allowed wide latitude in the exercise of delegated discretion.'" Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)). A zoning "board's decisions enjoy a presumption of validity, and a court may not substitute its judgment for that of the board unless there has been a clear abuse of discretion." Ibid. "[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). If "the decision of the Zoning Board was not arbitrary, capricious, or unreasonable, it must be sustained." TSI E. Brunswick, LLC v. Zoning Bd. of Adjustment of E. Brunswick, 215 N.J. 26, 47 (2013).

III.

Under Jersey City's zoning ordinances the "[p]ermitted principal uses in all Historic Districts," such as Van Vorst Park, includes townhouses. Jersey City Ord. 345-58(B).3 In the Historic Districts, the maximum height for townhouses is "four stories and forty (40) feet." Jersey City Ord. 345-58(G)(8). Thus, Cancro was required to seek a height variance to build a four-story townhouse that was 48.5-feet tall.

Such a height "variance application is governed by N.J.S.A. 40:55D-70(d)(6)." Grasso v. Borough of Spring Lake Heights, 375 N.J. Super. 41, 48 (App. Div. 2004). N.J.S.A. 40:55D-70(d)(6) provides that "for special reasons, [a board of adjustment may] grant a variance to allow departure from [zoning] regulations . . . to permit . . . (6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure." Here, the 48.5-foot-high Project exceeds the zoning regulations' forty-foot height limitation by 8.5 feet or 21.25%.

An applicant seeking a (d)(6) height variance "must show (1) 'special reasons,' or the so-called positive requirement; and (2) 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,' or the so-called negative requirement." Jacoby v. Zoning Bd. of Adjustment of Borough of Englewood Cliffs, 442 N.J. Super. 450, 463 (App. Div. 2015) (quoting Grasso, supra, 375 N.J. Super. at 48-49 (quoting N.J.S.A. 40:55D-70(d))).

A.

Cancro may "establish 'special reasons' by [1] showing undue hardship or [2] establishing that the [48.5-foot] building did not offend any purposes of the height restriction and 'would nonetheless be consistent with the surrounding neighborhood.'" Ibid. (quoting Grasso, supra, 375 N.J. Super. at 50-53). We address these alternatives in turn.

1.

"[A]pplicants for (d)(6) variances based on hardship must show that the property for which the variance is sought cannot reasonably accommodate a structure that conforms to, or only slightly exceeds, the height permitted by the ordinance." Grasso, supra, 375 N.J. Super. at 51. In other words, "the applicant for a (d)(6) variance on grounds of hardship must show that the height restriction in effect prohibits utilization of the property for a conforming structure." Ibid.

Although Richmond and Cancro have argued the hardship issue on this appeal, we decline to affirm this variance on the basis of hardship. First, the Board's resolution, its findings of fact, and its conclusions of law never even mentioned the word "hardship."4 The only reference to Cancro's argument in the Board's findings was

8. The height variance is due to the required elevations based on the new post Hurricane Sandy FEMA maps.

9. The FEMA maps issued after Hurricane Sandy require that the first living floor of the building be thirteen (13) feet above sea level.

Nowhere did the Board find that the Property could not "reasonably accommodate a structure that conforms to, or only slightly exceeds, the height permitted by the ordinance," or that "the height restriction in effect prohibits utilization of the property for a conforming structure." Grasso, supra, 375 N.J. Super. at 51.

Indeed, such a finding arguably would be contrary to our decision in Grasso. There, the plaintiffs built a two-story house whose thirty-eight-foot height exceeded the thirty-foot height limit. Id. at 45, 48 n.1. We held that the "plaintiffs failed to demonstrate hardship as a special reason," because "[t]he record shows that the property could accommodate a single-story ranch or bi-level home, or perhaps even a Cape Cod style two-story dwelling." Id. at 51. We ruled that the "[p]laintiffs' argument that there is a limited market for ranch-style or Cape Cod homes is beside the point. A developer's inability to make the most profitable use of the property is not sufficient to show hardship in a (d) variance case." Id. at 52.

Similarly, the testimony here from both sides' experts indicated that Cancro could have built a townhouse that would not have exceeded the forty-foot limit by making it less than four-stories tall. Cancro's inability to make the most profitable use of the Property, without building a fourth story, is not sufficient to show hardship in a (d)(6) variance application.

Cancro argued that amended FEMA flood regulations created a hardship justifying his building a townhouse exceeding the forty-foot height limit by 8.5 feet. However, Cancro's experts testified that the amended FEMA regulations increased the required elevation of the first habitable floor by only two feet. Moreover, as the Board's Senior Planner testified, the zoning ordinance provided that an exception to the height limit based on the base flood elevation "shall not apply" in the Historic Districts, unlike other districts. See Jersey City Ord. 345.60(G)(6). In any event, the increased elevation of the first habitable floor did not prohibit Cancro's "utilization of the property for a conforming structure" of three floors or less. Grasso, supra, 375 N.J. Super. at 51.

Cancro argued there was hardship because the zoning ordinance for the Historic Districts gave him the right to build a four-story building. However, one could read the ordinance's provision of a "Maximum Building Height" of "Four stories and forty (40) feet" as creating two limits, not rights. Jersey City Ord. 354-58(G)(8); see also N.J.S.A. 40:55D-65(b) (providing that a zoning ordinance may limit the "height, number of stories, orientation, and size of buildings"). If the ordinance creates two limits, a developer could not claim a right to build a five-story townhouse as long as it was forty-feet tall, or a right to build a 48.5-foot-tall townhouse as long as it had four stories.

The Board's Senior Planner testified that "I think that the intention [of the ordinance] is that they are permitted four stories as of right." However, the Board itself did not discuss the ordinance or its intent in the resolution. In any event, "[a]lthough a municipality's informal interpretation of an ordinance is entitled to deference, that deference is not limitless. As with other legislative provisions, the meaning of an ordinance's language is a question of law that we review de novo." Bubis v. Kassin, 184 N.J. 612, 627 (2005) (citation omitted).

Therefore, we decline Cancro's invitation to find that he satisfied the special reasons requirement by showing hardship. We need not decide that issue because we can affirm on another ground.

2.

A failure "to establish the level of hardship necessary to justify a (d) variance does not end the inquiry." Grasso, supra, 375 N.J. Super. at 52. An applicant can also prove "special reasons for a height variance if [it can] persuade the Board that a taller structure than permitted by ordinance would nonetheless be consistent with the surrounding neighborhood." Id. at 53. In doing so, the applicant must "demonstrate that the [48.5] foot high structure would not offend any of the purposes of the [forty] foot height limitation." Ibid. After an applicant has made such a showing, a Board could "find that the benefit of a harmonious, consistent style of [town]house outweighs any aesthetic detriment arising out of the excessive height of the structure." Id. at 54.

Here, the Board made such findings, which were the focus of its resolution

11. The building would not impede the light, air, and open space in the neighborhood. Of the three neighboring buildings (237 Montgomery Street, the carriage house to the rear of 239 Montgomery, and 241 Montgomery Street) only 237 Montgomery Street has a small third floor window that would be affected by the building at 239 Montgomery.

12. Even without the requested additional height, the small window [on Richmond's property] would be affected by the building [on Cancro's property].

13. The building faces northeast and meets the required setback. The shadows would be cast from the south. The shadows cast would be greatest in the summer. But overall due to the orientation of the building the shadows cast would not have a significant impact on the neighbors.

. . . .

15. The block contains a mix of two, three, and four story buildings.

. . . .

18. The project will advance the purposes of the Municipal Land Use Law, specifically

Granting the requested variance will guide the appropriate use and development of this site in a manner that will promote the general welfare consistent with 40:55D-2a through the provision of housing in a residential area and by removing a vacant lot in a residential district.

The proposed project provides sufficient space in an appropriate location for this type of proposed residential use, in order to meet the needs of all New Jersey citizens as promoted by 40:55D-2g.

The project will promote a desirable visual environment through creative development techniques and good civic design and arrangement by removing the vacant lot and replacing it with an attractive residential building consistent with 40:55D-2i.

19. The variance can be granted as the positive and negative criteria have been met. The building at issue is historically appropriate infill that matches with the character of the neighborhood. The building height is visibly compatible with adjacent buildings as the physical size, scale and height relates to the existing neighboring buildings. The width and height of windows, doors and entries harmonize and scale in proportion with the width and height of doors and entries of buildings and structures of historic districts in the surrounding environment. The site is well suited for this type of residential development in terms of its size, configuration and location to be able to accommodate the additional height without substantial detriment to either the zone plans or the general welfare.

The Board's findings were supported by the testimony of Cancro's experts and the Board's Senior Planner. In particular, Fried testified that while the proposed townhouse would be taller than the two adjacent buildings, it was not significantly taller than other buildings in the neighborhood. Gregory testified that the proposed townhouse was consistent with the streetscape along Montgomery Street, as there were a number of buildings that were of comparable height or even taller, with six buildings of four stories or more. See id. at 55 ("evidence that there were several other homes in the neighborhood that exceeded the Borough's height restrictions" provided support for a variance). The Board's Senior Planner similarly testified that the proposed townhouse's height was consistent with the rest of the neighborhood, and that it matched the character of the neighborhood. Moreover, the Board noted that "[t]he Historic Preservation Commission considered the adjustment of the ceiling heights so the windows would line up with the neighbors' windows and maintain a consistent streetscape," which Cancro agreed to do.

Thus, the Board had sufficient evidence to find that the 48.5-foot-high townhouse "would nonetheless be consistent with the surrounding neighborhood," and "would not offend any of the purposes of the [forty] foot height limitation." Id. at 53-54.

Richmond notes that the resolution did not explicitly explain the purposes of the forty-foot height limit. However, the purpose of height limits on residential homes can readily be inferred. The statutory purposes of zoning include "[t]o provide adequate light, air and open space," and "[t]o promote a desirable visual environment." N.J.S.A. 40:55D-2(c), (i). Based on those statutory provisions, we have inferred that those are the purposes of a thirty-foot height limit for residences. See Grasso, supra, 375 N.J. Super. at 53; Jacoby, supra, 442 N.J. Super. at 464 (noting that "[i]n all likelihood, the thirty-five-foot height restriction is designed" to serve similar purposes). The Board confirmed those purposes by finding that the building would not impede the light, air, and open space in the neighborhood, and that it would maintain a visibly compatible and harmonious streetscape.

The Board's finding was supported by Gregory's testimony that the added 8.5 feet would not have a significant impact on adequate light, air, and open space on Richmond's property or the surrounding properties. Gregory noted that the townhouse faced northeast, with shadows longer in the summer. Both Fried and Gregory testified that given the orientation of the proposed townhouse, the sun would cast a shadow on Richmond's property, but the additional height would not make a significant difference in the shadows the townhouse would cast. Fried added that Richmond's building had a very small window on the third floor, but it would be shadowed even if the proposed townhouse was forty-feet tall.

Richmond argues that Cancro's experts were required to perform a computer-generated "shadow study" of how the shadowing would impact Richmond's building. Richmond has produced no authority, nor can we find any, that requires such a "shadow study" before a zoning board grants a height variance. Indeed, Richmond itself did not present a shadow study, instead presenting Banyra's testimony that the Project's height was "going to shadow in some way, shape or form," "somewhere at some point." Thus, Richmond cannot show that it was arbitrary and capricious for the Board to rely on the more specific testimony from Cancro's experts an architect, and a planner with training in architecture and experience in shadow studies.5

Thus, there was substantial evidence that Cancro satisfied the positive criteria by demonstrating that the project would be consistent with the rest of the neighborhood. We cannot say that the Board's decision was arbitrary, capricious, or unreasonable.

B.

An applicant for a height variance under N.J.S.A. 40:55D-70(d)(6) must also "prove 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,' the so-called negative requirement." Grasso, supra, 375 N.J. Super. at 48-49 (quoting N.J.S.A. 40:55D-70(d)(6)). The Board so found. Cancro presented substantial evidence to support that finding. In addition to its already quoted findings, the Board found

20. Neither substantial detriment to the public good, nor impairment of the intent and purposes of the zone plan and master plan are caused by the height and side yard variances. There is already a mix of heights on the block and the building will complete the streetscape while providing appropriate and compatible infill housing.

The Board's findings were supported by the testimony of Cancro's experts. Ricmond makes no additional arguments not already rejected above.

IV.

In a supplemental submission to the court, Richmond argues that Cancro was required to make an additional showing under our 2015 opinion in Jacoby, supra, which we issued after the decisions of the Board and the Law Division here. Richmond argues that the facts of Jacoby are analogous to those here. To the contrary, in Jacoby, a company wished to construct a 143.8-foot office building in a zone where the maximum permitted building height was thirty-five feet. Jacoby, supra, 442 N.J. Super. at 457-58. We held, "where a structure substantially exceeds the local height restriction, that in determining whether the height of a building would be 'consistent with the surrounding neighborhood[,]' a zoning board is obligated to consider the impact that the structure would have on more than the municipality itself or the immediate vicinity of the structure." Id. at 458.

No such additional obligation arose here, because the proposed townhouse did not substantially exceed the local height restriction. It exceeded the height restriction only by 8.5 feet and 21.25%. Unlike in Jacoby, where there was a difference of 108 feet and 410.85%, and the proposed building would obstruct views of the historic Palisades Cliffs, the 8.5-foot increase here posed no problem beyond its immediate vicinity. Ibid.

V.

Richmond lastly raises several procedural issues. Richmond complains that the Board's resolution failed to explicitly state the amount of the height variance or expressly reference the Grasso requirements for a height variance. However, it was acknowledged in the testimony of both parties that an 8.5-foot variance was being sought. Moreover, both parties' planning experts told the Board about Grasso and its requirements, which were reflected in the Board's findings that the project would "match[] the character of the neighborhood" and would not impede the purposes of the height requirement.

Richmond argues that the Board failed to question or explicitly reject Richmond's expert witnesses. To the contrary, numerous members of the Board questioned Richmond's experts. Moreover, after the Board heard competing testimony from Cancro's experts and Richmond's experts on whether Cancro had satisfied the positive and negative criteria, the Board adopted the opinions of Cancro's experts. Thus, the Board implicitly rejected the contrary opinions of Richmond's expert witnesses.

Generally, a zoning board is "free to either accept or reject the testimony of" expert witnesses. Ocean Cty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 537 (App. Div.), certif. denied, 175 N.J. 75 (2002). The Board's choice was "reasonably made," so it "'is conclusive on appeal.'" Ibid. (citations omitted).

Richmond argues the Board abdicated its responsibilities by following the Historic Preservation Commission's recommendations. As the trial court found, "the record is clear that the Board did not simply rely on the Historic Preservation Commission when making its determination." The Board conducted two days of hearings, and heard testimony from seven witnesses including four experts employed by Cancro and Richmond, before issuing its resolution approving Cancro's application. The Board's resolution simply noted that the Commission had issued a Certificate of Appropriateness, and considered Cancro's adjustment to line up the windows. Moreover, it was entirely appropriate for the Board to consider the Commission's advice. See N.J.S.A. 40:55D-109(d), -110 (requiring the board to "refer to the historic preservation commission every application for development in historic zoning districts," and authorizing the commission to "[a]dvise" the board).

As the Board's decision was not arbitrary and capricious, we affirm the trial court's dismissal of Richmond's complaint in lieu of prerogative writs.

Affirmed.

1 Cancro also sought a side-yard variance, and minor site plan approval, pursuant to N.J.S.A. 40:55D-70(c). The side-yard variance and minor site plan approval are not at issue on appeal.

2 Herman testified that the Project's cellar would not comply with the flood hazard area regulations of the New Jersey Department of Environmental Protection, because it would be considered a habitable floor as its ceiling was eight-feet tall rather than six-feet tall. In approving the Project, the Board required the cellar's ceiling height be brought into conformance with those regulations.

3 Available at https://www2.municode.com/library/nj/jersey_city/ codes/code_of_ordinances?nodeId=CH345ZO_ARTVZODEST_S345-6058HH1D1.

4 The Board's arguments to the trial court and this court also did not use the word "hardship."

5 In its appellate reply brief, Richmond argues for the first time that the opinions of Cancro's experts on where the shadows would fall were net opinions. "It is improper to raise an argument for the first time in a reply brief. Typically, such an argument will not be recognized." A.D. v. Morris Cty. Bd. of Soc. Servs., 353 N.J. Super. 26, 30 (App. Div. 2002). Moreover, "[w]e decline to consider issues not properly presented at the hearing or trial level, save in exceptional circumstances," which are not present here. N.Y. SMSA, L.P. v. Bd. of Adjustment of Twp. of Weehawken, 370 N.J. Super. 319, 341 (App. Div. 2004) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).