LARRY PRICE v. RAUL MIER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LARRY PRICE,

Plaintiff-Appellant,

v.

RAUL MIER and UNION CITY

ZONING BOARD OF ADJUSTMENT,

Defendants-Respondents.

________________________________________________________________

February 6, 2017

Argued July 5, 2016 Decided

Before Judges Carroll and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2418-14.

Larry Price, appellant, argued the cause pro se.

Adolfo L. Lopez argued the cause for respondent Raul Mier (Ledesma, Diaz, Lopez & Noris, P.C., attorneys; Mr. Lopez, on the brief).

Gregory F. Kotchick argued the cause for respondent Union City Zoning Board of Adjustment (Durkin & Durkin, LLP, attorneys; Mr. Kotchick, on the brief).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

Plaintiff, Larry Price, appeals from the Law Division's final judgment dismissing with prejudice his complaint in lieu of prerogative writs against defendants Union City Zoning Board of Adjustment (the Board) and Raul Mier. Plaintiff's complaint challenged the Board's unanimous approval of Mier's application for variances relating to his proposal to subdivide previously merged lots and to construct a four-story, three-family house on one of the lots, while maintaining the existing multi-family and mixed use structures on the other. The Law Division sustained the Board's approval, finding that its decision was not arbitrary, capricious, or unreasonable, and it properly considered the proposal's conformity with neighboring properties and its impact on the neighborhood and found any negative impact caused by parking limitations were outweighed by "the positive criteria." On appeal, plaintiff argues the trial court's ruling is unsustainable because Mier "failed to justify a d(2) variance"; there were "no special reasons . . . for the d-6 height variance"; and "the variances granted impair the zoning ordinance." We disagree and affirm.

The facts derived from the record can be summarized as follows. Mier filed an application under N.J.S.A. 40:55D-70 of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to 163, seeking approval for a minor subdivision to create two adjoining lots in order to permit the construction of a three-family residential building with enclosed ground level parking on one of the lots. The property was located in a residential zone that permitted up to three family homes. The proposed structure required a (d)(2)1 variance because the proposal called for the expansion of a non-conforming use,2 and a (d)(6)3 height variance was required to allow the proposed structure to exceed the zone's height requirement by approximately four feet in order to accommodate the ground floor parking area called for in the plans.

The Board held a public hearing on March 13, 2014, at which Mier presented the expert testimony of Jose Izquierdo, a licensed New Jersey architect and professional planner. Izquierdo testified as to both the positive and negative criteria and special reasons that justified the Board granting variances.4 He stated, the proposed structure "is an appropriate use and development of land," as the proposed structure would be built in conformance with the zone's residential purposes. According to Izquierdo, "[t]his is actually a better zoning alternative for the property, since it furthers the intent of the [m]aster [p]lan, does not impair the [z]oning [o]rdinance [, and] benefits[,] not only the owner, but [also] . . . the community in having a better structure and not an eyesore." He noted the proposed structure would preserve "adequate light, air and open space . . . for the new building [and provide] safety from fire [and] flood." Additionally, he analyzed the surrounding neighborhood and concluded the proposed structure conformed to other multi-story structures in the area. As to the negative criteria, Izquierdo cited only parking issues. He concluded, "the positive criteria established by a new house, a new development . . . outweighs . . . that negative."

Plaintiff appeared at the public hearing and questioned Izquierdo. He did not present any expert testimony to refute Izquierdo's opinions.

After considering Izquierdo's testimony, the Board voted unanimously to approve Mier's application. It adopted a formal resolution reciting its findings. In its resolution, the Board determined

the relief requested by the [a]pplicant can be granted without substantially impacting on the public good and without substantially impairing the intent and purpose of the [z]one plan and [m]aster [p]lan for the following reasons

1. There were no negative criteria associated with the project.

2. The project would not be in conflict with the character of the neighborhood or with the master plan of the City.

3. The two lots merged when they were purchased by the [same] person.

4. The new subdivision is not inconsistent with the neighborhood.

5. One of the structures is preexisting.

6. The Board notes that the proposed building is compatible with the surrounding buildings in the neighborhood.

Plaintiff filed a complaint in lieu of prerogative writs in the Law Division challenging the Board's determination. He alleged the Board's decision was "arbitrary, capricious or unreasonable" as Mier failed to establish "special reasons . . . to justify the grant of [a (d)(2) and (d)(6) variance], and Mier failed to make a showing that the remaining variances "will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."

After conducting a trial on December 16, 2014, Judge Lisa Rose issued a fourteen-page written decision on January 6, 2015, in which she expressed the court's reasons for sustaining the Board's decision. The judge described Meier's property, its current and proposed use in detail and the nature of his application. She reviewed Izquierdo's expert testimony, specifically noting that he opined that it was "Mierer's intent . . . to make better use of [a] non-conforming property, that is, to construct a conforming three family residential building." In addition, Judge Rose observed that Izquierdo explained how the proposal created additional residential units consistent with the zoning ordinance, which conformed with "the structures in the neighborhood." The judge also considered Izquierdo's discussion of the negative criteria in terms of limitations on parking and how they would be mitigated by other available parking in the area and outweighed by the benefit of new housing.

Judge Rose also reviewed the resolution approved by the Board. She noted, among other findings, that the Board determined "[t]here were no negative criteria associated with the project" and no "conflict with the character of the neighborhood or the master plan."

Judge Rose turned to plaintiff's allegations and discussed the standards applicable to the court's consideration of the Board's determination. The judge discussed the provisions of the MLUL, relied on our opinion in Saddle Brook Realty, LLC. v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75-76 (App. Div. 2006), and noted the board's authority to grant variances, as specified in N.J.S.A. 40:55D-70, when an applicant satisfies "the so called" positive and negative criteria under the statute." Judge Rose also described an applicant's additional burden to "show special reasons" why the variance should be granted," as discussed in Burbridge v. Governing Board of Mine Hill Township, 117 N.J. 376, 386 (1990). Citing to Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268, 279 (1967), the judge explained that a showing of "special reasons" required the applicant to "demonstrate the proposed use is peculiarly fitted to the particular location for which the variance is sought." As to the negative criteria, Judge Rose quoted from Medici v BPR Co., 107 N.J. 1, 22 (1987), and explained "the focus is site specific and requires an assessment of the proposed variance's impact on the surrounding properties and consideration of whether it will cause 'damage to the character of the neighborhood[.]'"

The judge turned to plaintiff's assertion that the Board lacked evidence needed to determine "special reasons existed to grant the variance[s]" and disagreed. She found instead that "[a]mple expert testimony was adduced before the [z]oning [b]oard to substantiate its finding[s]." She then proceeded to describe the unrefuted expert testimony upon which the Board relied that indicated "Mier's application further[ed] the intent of the [m]aster [p]lan, does not impair the [z]oning [o]rdinance, and benefits the community." Moreover, she noted the proposal allowed for "adequate light, air and open space," aesthetic improvements to the property, and that the proposed subdivision was particularly suited to a multi-story residential structure. Judge Rose concluded the record supported the Board's granting of the (d)(2) variance, which "was not arbitrary, capricious, nor unreasonable."

Judge Rose also addressed the (d)(6) height variance. She found that the Board "adequately considered whether the [p]roposed structure would conform with the surrounding neighborhood . . . [, and that] the record [was] replete with testimony supporting the conformity." The judge quoted from Izquierdo's testimony about buildings within a two hundred foot radius of the subject property that had four and five story buildings as well as "big apartment buildings" as support for the Board's decision.

Judge Rose also found that the Board properly considered the negative criteria. She found that its decision regarding the negative criteria was supported by the evidence that any negative impact was outweighed by the availability of parking within the proposed structure and nearby parking lots, and by the plan's proposal for the removal of existing "dilapidated garages."

Judge Rose entered a final judgment on January 6, 2015, affirming the Board's action and dismissing plaintiff's complaint with prejudice. This appeal followed.

In our review of "a trial court's decision regarding the validity of a local board's determination, 'we are bound by the same standards as was the trial court.'" Jacoby v. Zoning Bd. of Adjustment, 442 N.J. Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)). We defer to the
factual findings of the local board and will not disturb those findings unless they are "arbitrary, capricious, or unreasonable." Ibid. We review a local board's legal determinations de novo. Ibid. The burden to show the board's decision was arbitrary, capricious, or unreasonable is on the challenging party. Price v. Himeji, 214 N.J. 263, 284 (2013).

On appeal, plaintiff again argues Mier failed to establish special reasons or justify the need for variances, the proposed structure is nonconforming to the neighborhood, and that the variances substantially impair the zone plan and ordinance.

We find insufficient merit to plaintiff's arguments to warrant further discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by Judge Rose in her comprehensive and thoughtful written decision. We simply note that there was sufficient credible evidence presented at the Board's hearing, which was unrefuted by any conflicting testimony or other evidence.

Affirmed.

1 See N.J.S.A. 40:55D-70(d)(2).

2 The proposal called for subdividing previously merged lots. On one part of the lot, there were two, three-story structures, one of which included a liquor store and the other was only residential. On the other portion of the lot, there were four dilapidated garages that were to be removed. Due to the lot's size and its existing use, it is a non-conforming undersized lot.

3 See N.J.S.A. 40:55D-70(d)(6).

4 See N.J.S.A. 40:55D-70(c)(2); N.J.S.A. 40:55D-7(d).