LARRY PRICE v. N.Y. AVENUE, LLC.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0362-07T10362-07T1

LARRY PRICE,

Plaintiff-Appellant,

v.

N.Y. AVENUE, LLC and UNION

CITY ZONING BOARD OF ADJUSTMENT,

Defendants-Respondents.

_____________________________________

 

Argued October 21, 2008 - Decided

Before Judges Skillman, Graves and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

Docket No. L-0985-07.

Larry Price, appellant, argued the cause

pro se.

George B. Campen argued the cause for

respondent N.Y. Avenue, LLC (George B.

Campen, LLC, attorneys; Mr. Campen, on

the brief).

O'Donnell Piechta, attorneys for respondent

Union City Zoning Board of Adjustment join in the brief of respondent N.Y. Avenue, LLC.

PER CURIAM

Plaintiff Larry Price appeals from an order of the Law Division dismissing an action in lieu of prerogative writs. Price challenged conditional use, density, height and lot coverage variances granted by defendant Union City Zoning Board of Adjustment to defendant N.Y. Avenue, LLC. We conclude that the structure N.Y. Avenue intends to erect is not permitted in the zoning district. Accordingly, we vacate the variances and site plan approval without prejudice to a future application for approval pursuant to subsection (d)(1) of N.J.S.A. 40:55D-70 and Medici v. BPR Co., 107 N.J. 1 (1987).

N.Y. Avenue is the owner of property known as 1601-1611 New York Avenue in Union City. N.Y. Avenue sought approvals and variances needed for a six-story, fifty-dwelling-unit building, with five levels of dwelling space and two levels of parking one at and one below grade level. Each unit will have its own heating source.

The property is located within Union City's "R" zone, which is residential mixed. The residential uses permitted in this zone are "one, two and four family dwellings" and row houses for one-family use. "Limited multi-family developments" are permitted in the zone on specified conditions. Structures that fall within the ordinance's definition of "Apartment House, High Rise" are not authorized or permitted under specified conditions.

The Union City ordinance defines an "Apartment House, High Rise" as "[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." Union City, N.J., Code 18-3.6. It is apparent that the fifty-dwelling-unit, six-story structure proposed by N.Y. Avenue has the number of stories and dwelling units necessary for classification as a high-rise apartment house. The trial court concluded that the proposed structure did not meet the definition of a high-rise apartment house, however, because each of the units will have its own heating source and the units will be occupied by condominium owners, not "tenants." Interpretation of the ordinance is a question of law, and we are not bound by the Board's or the trial court's construction of this definition. Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Wyzykowski v. Rizas, 132 N.J. 509, 518-20 (1993).

This court has construed the definition of "Apartment House, High Rise" set forth in Union City's ordinances in five unpublished decisions, which were all issued after the trial court dismissed this action. Price v. Malas Enters. 2, LLC, No. A-5422-06 (App. Div. Aug. 1, 2008) (eight-story, thirty-five-dwelling-unit building); Price v. Rocha, No. A-5420-06 (App. Div. Aug. 1, 2008); Price v. Union City Zoning Bd. of Adjustment, No. A-4017-06 (App. Div. Aug. 1, 2008), certif. denied, ___ N.J. ___ (2008) (seven-story, fifty-dwelling-unit building); Price v. Union City Zoning Bd. of Adjustment, No. A-6411-06 (App. Div. Jul. 9, 2008) (nine-story, fifty-six-dwelling-unit building); Price v. 13-14 Union, LLC, No. A-6490-06 (App. Div. May 21, 2008), certif. denied, ___ N.J. ___ (2008). In each case, we concluded that the reference to a structure's heating source is superfluous. See, e.g., Price v. 13-14 Union, LLC, supra, slip op. at 7-8. Although these unpublished decisions do not have precedential value, the decisions are binding on the Board, which was a party in every one of the cases. See Raymond v. New Jersey State Parole Bd., 221 N.J. Super. 381, 385 (App. Div. 1987); R. 1:36-3. Courts generally attempt to give meaning to all of the language in a statute or ordinance, but a court's primary role "is to give effect to the legislative intent." Franklin Tower One, LLC v. N.M., 157 N.J. 602, 613 (1999) (quoting Brooks v. Odom, 150 N.J. 395, 401 (1997)). In the context of a municipal zoning ordinance, it is appropriate to assume that the governing body intends to comply with the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -99, which authorizes a municipality to adopt a zoning ordinance. Zoning ordinances may restrict buildings and structures to specified districts, regulate the nature and extent of their use, regulate bulk, height, number of stories, size and percentage of lot development, and address consequences of development such as intensity of use, light and air, traffic flow, parking and flooding. N.J.S.A. 40:55D-65(a)-(c).

Viewing the references to heating source and tenants included in the definition of "Apartment House, High Rise" from the perspective of the statutory standards for the content of zoning ordinances, we conclude the language is superfluous. It is not reasonable to assume that the governing body intended to exclude buildings with the requisite number of stories and dwelling units from the definition of high rise simply because each dwelling unit has its own heating source. The number of dwelling units and stories, not the number of heating sources, has an impact on the intensity of the use, the height and bulk of the structure, and its impact on air, light, traffic, and parking. Any distinction based on the occupants' status as tenants, as opposed to owners, is equally irrelevant to subjects addressed in a zoning ordinance. Accordingly, we conclude that N.Y. Avenue's proposed structure is an "Apartment House, High Rise" that is not permitted in this zone.

The Board did not measure this application under the appropriate standards. When an applicant seeks approval for "a use or principal structure in a district restricted against such use or principal structure," the applicant must establish the positive and negative criteria in accordance with subsection (d)(1) of N.J.S.A. 40:55D-70 and Medici. In this case, the Board assessed the application under subsection (d)(3) of N.J.S.A. 40:55D-70 and Coventry Square v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285 (1994), which applies when a use or structure is permitted subject to conditions. The standards are different. Because a structure that is permitted on specified conditions is not prohibited, an applicant for a variance excusing compliance with the specified conditions need not establish the "stringent special reasons" that must be established when the use or structure is not permitted under any conditions. See id. at 287.

Because the Board did not apply the proper standard, none of the variances granted are sustainable. Accordingly, we reverse the trial court's order dismissing the action in lieu of prerogative writs and vacate the Board's resolution approving the variances. We do not foreclose a future application for approval based on subsection (d)(1) of N.J.S.A. 40:55D-70.

 

The ordinance does not define "limited multi-family developments." In a paragraph labeled "Note 21," the ordinance states the conditions under which "limited multi-family developments" are authorized. One condition is that the applicant meet the "requirements of garden apartment developments." The ordinance defines "Apartment House, Garden Type" as "[a] residential structure of not more that three stories containing three or more dwelling units." "Note 12" lists the requirements for "garden apartment developments." Limitations imposed include: a maximum of thirty dwelling units per residential acre in three-and-one-half-story structures and twenty-five in two-story structures; a maximum of forty percent of the lot covered by structures; maximum height of fifty feet; and maximum length of seventy-five feet. Requirements imposed include a loading space and a specified number of parking places per bedroom. N.Y. Avenue sought approval for a structure with more stories and dwelling units, greater height, length and lot coverage, no loading space and fewer parking spots.

We recognize that fire safety is a valid consideration in zoning, N.J.S.A. 40:55D-2, but fail to see how a preference for multiple heating sources in a high rise would further that purpose.

(continued)

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A-0362-07T1

November 7, 2008