LARRY PRICE v. 3623 PARKVIEW, LLC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4838-06T24838-06T2

LARRY PRICE,

Plaintiff-Appellant,

v.

3623 PARKVIEW, LLC, and

UNION CITY ZONING BOARD

OF ADJUSTMENT,

Defendants-Respondents.

_______________________________________

 

Argued November 5, 2008 - Decided

Before Judges Wefing, Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5126-06.

Larry Price, appellant, argued the cause pro se.

J. Alvaro Alonso argued the cause for respondent 3623 Parkview, LLC (Alonso & Navarrete, LLC, attorneys; Mr. Alonso, on the brief).

Respondent Union City Zoning Board of Adjustment has not filed a brief.

PER CURIAM

Plaintiff Larry Price appeals from an order entered by the Law Division on April 17, 2007, which dismissed his action in lieu of prerogative writs. The court affirmed the issuance by the Union City Zoning Board of Adjustment of site plan approval and variances for the construction by 3623 Parkview, LLC (Parkview) of a four-story, thirty-three unit residential building in the City. For the reasons that follow, we reverse.

In this matter, Parkview proposed to construct a "limited multi-family residential development" on vacant land at the southwest corner of Park Avenue and 37th Street in Union City. The property is located in the City's "R-zone." The proposed building consists of three residential floors over a single grade-level of parking. The structure will contain nine studio apartments, eighteen one-bedroom units and six two-bedroom units.

The Board considered the application at its meeting of June 29, 2006. Parkview presented testimony from Albert Arencibia, the architect of the building; Craig Peregoy, a traffic engineer; and Michael Kauker, a professional planner. Thereafter, the Board voted to approve the site plan, provided it was revised to eliminate the commercial space on the ground floor and include a two-and-one-half foot setback on 37th Street.

In approving the site plan, the Board granted Parkview variances from the zoning requirements for maximum density, maximum lot coverage, front yard setback, rear yard setback, side yard setbacks, building length, building height, parking, and loading berth. On September 14, 2006, the Board adopted a resolution that memorialized its action.

On October 24, 2006, plaintiff filed his action in the Law Division seeking to invalidate the Board's action. The trial court heard the matter on April 3, 2007, and placed its decision on the record on that date. The court found that there was sufficient credible evidence in the record to support the Board's findings and its action was not arbitrary, capricious or unreasonable. The trial court entered an order dated April 17, 2007 dismissing plaintiff's complaint. This appeal followed.

Plaintiff argues that the Board's decision to grant Parkview the height variance pursuant to N.J.S.A. 40:55D-70(d)(6) was arbitrary, capricious and unreasonable. Plaintiff additionally argues that Parkview failed to present sufficient evidence to justify the grant of the density variance sought under N.J.S.A. 40:55D-70(d)(5). Plaintiff also challenges all nine of the variances, arguing that the variances would substantially impair the City's zone plan and the zoning ordinance.

The standard of review that applies when a trial court reviews a decision of a local zoning board is well-established. Such a decision "may be set aside only when it is 'arbitrary, capricious or unreasonable.'" Cell South of N.J., Inc. v. Zoning Bd. of Adj., 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). A court may "not substitute its judgment for that of [the Board] 'even when it is doubtful about the wisdom of the action.'" Ibid. (quoting Cellular Tel. Co. v. Zoning Bd. of Adj., 90 F. Supp. 2d 557, 563 (D.N.J. 2000)). The decision of a zoning board is presumed to be valid, and "the party 'attacking such action [has] the burden of proving otherwise.'" Id. at 81-82 (quoting N.Y. SMSA Ltd. P'ship v. Bd. of Adj., 324 N.J. Super. 149, 163 (App. Div.), certif. denied, 162 N.J. 488 (1999)). We apply the same standard of review. N.Y. SMSA Ltd. P'ship v. Bd. of Adj. of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004).

Here, the Board determined that the proposed structure was a "mid-rise development" that was a conditional use in the R-zone. The Board thus found that the burden of proof under Medici did not apply to its consideration of the variance requests. Medici establishes standards of proof when a request is made to permit a prohibited use in a district where such a use is not allowed. Medici, supra, 107 N.J. at 18-21. In considering Parkview's application the Board employed the less-exacting standards under Coventry Square, Inc. v. Westwood Zoning Bd. of Adj., 138 N.J. 285, 298-99 (1994), which apply when variances are sought from the requirements for conditional uses.

In our judgment, the Board erred by treating Parkview's proposed structure as a conditional use in the R-zone. The City's zoning ordinance provides that the R-zone primarily consists of one, two and four-family dwellings. The ordinance also permits "limited multi-family developments" as conditional uses in the R-zone, provided that such developments meet the requirements of Note 21.

The Note 21 requirements are: (1) the site must be at least 10,000 square feet; (2) the development must be "compatible with the neighborhood" in which it will be constructed; and (3) the proposed structure must comply with the criteria for "garden apartment developments" set forth in Note 12. The Note 12 criteria pertain to minimum lot size, dwelling units per acre, maximum lot coverage, front yard set back, building length, building height, parking, and loading space.

The City's ordinance does not define "limited multi-family development" but includes the following definitions of "apartment houses." Those definitions are:

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.

The ordinance does not permit "high-rise apartment buildings" in the R-zone.

In Price v. 13-14 Union, LLC, No. A-6490-06 (App. Div. May 21, 2008), plaintiff challenged the Board's decision to grant variances for the construction of two seven-story, multi-family dwellings in the R-Zone. We rejected the Board's contention that the proposed buildings were "limited multi-family developments." Id. at 8. We held that a multiple-family dwelling that exceeds the height for garden apartments is a "high-rise apartment building" that is not a permitted or conditional use in the R-zone. Ibid. Because the Board had erroneously applied the Coventry Square standards instead of the Medici standards, we reversed the trial court's order upholding the Board's action and vacated the Board's grant of the variances. Id. at 8-9.

We reached substantially the same conclusion in Price v. Union City Zoning Bd. of Adj., No. A-6411-06 (App. Div. July 9, 2008) (finding that a seven-story, multi-family structure was a prohibited use in the R-Zone); Price v. Malas Enters. 2, LLC, No. A-5422-06 (App. Div. Aug. 1, 2008) (holding that a building consisting of five residential floors over three levels of above-ground parking was a prohibited use in the R-Zone); Price v. Rocha, No. A-5420-06T2 (App. Div. Aug. 1, 2008) (concluding that an eighteen-story high-rise building was not a permitted use in the R-Zone); and Price v. Union City Zoning Bd. of Adj., No. A-5403-05 (App. Div. Aug. 1, 2008) (holding that an apartment building with six residential stories above two levels of parking, one of which is above ground, is not a permitted use in the R-Zone). In each of these cases, we concluded that the Board erred by failing to consider the respective applications for variance relief under the standards articulated in Medici.

We recognize that ordinarily our unpublished opinions are not precedent, but the decisions previously discussed are binding upon the Board, which was a party in those cases. R. 1:36-3; Raymond v. N.J. State Parole Bd., 221 N.J. Super. 381, 384-85 (App. Div. 1987). We therefore conclude that the Board erred by treating Parkview's proposed structure as a conditional use and applying the Coventry Square standards rather than the Medici standards to Parkview's application. Accordingly, we reverse the trial court's order affirming the Board's action and remand the matter to the Board for reconsideration.

Reversed and remanded for further proceedings in conformity with this opinion.

 

(continued)

(continued)

8

A-4838-06T2

December 8, 2008