Opinion
DOCKET NO. A-3924-13T1
01-15-2016
GRACE M. DELLA BELLA, CHIKAE IKEDA, HENRY FUKUCHI and DENNIS HO, individually and as members of the LAWN AVENUE NEIGHBORHOOD ASSOCIATION, an unincorporated association, Plaintiffs-Appellants, v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF PALISADES PARK and DRC DEVELOPMENT CORP., Defendants-Respondents.
Kates Nussman Rapone Ellis & Farhi, LLP, attorneys for appellants (Michael B. Kates and Kathryn L. Walsh, on the brief). Kaufman Semeraro & Leibman LLP, attorneys for respondent DRC Development Corp. (Deena B. Rosendahl, on the brief). John L. Schettino, LLC, attorney for respondent Zoning Board of Adjustment of the Borough of Palisades Park, joins in the brief of respondent DRC Development Corp.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3860-13. Kates Nussman Rapone Ellis & Farhi, LLP, attorneys for appellants (Michael B. Kates and Kathryn L. Walsh, on the brief). Kaufman Semeraro & Leibman LLP, attorneys for respondent DRC Development Corp. (Deena B. Rosendahl, on the brief). John L. Schettino, LLC, attorney for respondent Zoning Board of Adjustment of the Borough of Palisades Park, joins in the brief of respondent DRC Development Corp. The opinion of the court was delivered by NUGENT, J.A.D.
Plaintiffs Grace M. Della Bella, Chikae Ikeda, Henry Fukuchi, and Dennis Ho, residents of the Borough of Palisades Park, appeal from a Law Division "Judgment Order," which dismissed with prejudice their action in lieu of prerogative writs and upheld the Borough's Zoning Board of Adjustment's grant of defendant DRC Development Corp.'s development application. DRC proposed to develop a thirty-five unit, multi-family apartment complex on four lots in an "AA" zoned residential district, a district in which the Borough's zoning ordinance stated, among other things: "It is specifically not the intent to provide additional multi-family (three or more dwelling units) or rooming or boarding house uses in this district." On appeal, plaintiffs contend: DRC failed to demonstrate special reasons to support the variance, and DRC's proofs did not justify the intrusion into a deliberately designated low-density residential zone; DRC's proofs before the Board did not support the height variance; the Board violated the Open Public Meetings Act by delegating fundamental elements of the development application to a professional for post-hearing review; and, the action of the Zoning Board in approving the application was "ultra vires of its authority and tantamount to rezoning by variance."
Having considered the parties' arguments in light of the record and applicable zoning principles, we conclude the applicant's proofs before the Board were insufficient to support the use variance for the property. Accordingly, we reverse the Law Division judgment.
I.
Defendant DRC Development Corp. (DRC) was the contract purchaser of four residential lots when it filed an application for development with the Zoning Board of Adjustment of the Borough of Palisades Park (the Board). DRC sought subdivision approval, preliminary and final site plan approval, use variances, and bulk variances, to merge the four lots and build a thirty-five unit apartment building (the project) on the site. Following a hearing at which DRC presented the testimony of an engineer, an architect, and a planning consultant, six members of the Board approved DRC's development application. At a subsequent meeting, seven members of the Board adopted a memorializing resolution.
A DRC expert testified that DRC intended to develop either apartments or condominium units, depending on the market. The expert nonetheless referred to the units as apartment units throughout his testimony. Accordingly, we do the same.
Plaintiffs filed an action in lieu of prerogative writs, contending the Board's action was arbitrary, capricious, and unreasonable because DRC's proofs failed to satisfy the criteria for the grant of the relief requested by DRC in its development application; and, the Board engaged in inappropriate zoning by variance. The Board and DRC filed answers and thereafter the court conducted oral argument. In a written decision dated March 18, 2014, the court dismissed plaintiff's complaint with prejudice and without costs. Plaintiffs appealed.
Plaintiffs filed the prerogative writs action individually and as members of the Lawn Avenue Neighborhood Association. There is no evidence in the record that the Lawn Avenue Neighborhood Association is a separate legal entity.
The site of DRC's proposed development consists of four residential lots identified as Lots 19, 20, 21, and 22 in Block 207 (the development site) on the Borough's tax map. Lots 20, 21, and 22 front on Grand Avenue. Lot 19 is on the corner of Grand Avenue and West Edsell Boulevard. Plaintiffs reside on Lawn Avenue, which is one block south of, and parallel to, Grand Avenue.
The development site is located in a district zoned AA Residential. According to the zoning ordinance, the AA district
permits one-family residential and two-family residential structures and accessory uses. It is the intent of this district to preserve the present one- and two-family
residential character of the Borough. Certain religious, recreational and public uses are also permitted to provide for a balanced neighborhood. It is specifically not the intent to provide additional multifamily (three or more dwelling units) rooming or boarding house uses in this district.Permitted uses include one-family detached dwellings and two-family dwellings; places of worship; schools; public parks and playgrounds; professional offices in one-family dwellings when conducted by a resident; government buildings and a public library; community residences; and duplexes.
The zone's bulk area requirements include a minimum lot area of 5000 square feet; minimum lot frontage of 50 feet; a front yard setback of not less than twenty feet; minimum side yard setbacks of five feet for one side and fourteen feet for both; minimum rear yard setback of twenty-five feet; maximum building height of 2 and 1/2 stories, twenty-five feet; and maximum lot coverage of forty percent. DRC's project, a three-story building over grade level parking with thirty-five residential units, having an average height of 42.1 feet, requires use and height variances as well as "variances for the front yard, rear yard, number of stories, lot coverage, [and] lot area per dwelling unit."
DRC presented the testimony of three experts at the hearing on its development application: Steven L. Koestner, a licensed engineer; Vassilios Cocoros, an architect; and Ken Ochab, a planning consultant. Koestner, the engineer, prepared three documents: the site plan; a grading, drainage, and utility plan; and a detail plan, which included the property's boundary and topography as a vacant piece of property. He described the development site as having two hundred four feet of frontage on Grand Avenue, a depth of 142.78 feet, and an upward slope from Grand Avenue toward the back of approximately eight and one-half to nine feet. Presently, four homes are on the site, one on each lot. DRC intended to demolish the homes. DRC proposed to build a thirty-five-unit apartment complex with an entrance on Grand Avenue. The complex would have only one means of vehicular ingress and egress. Retaining walls, seven feet high, would be constructed behind the building and there would be a sidewalk on each side of the building for access to stairwells. A "green area" would exist around the edge of the building.
Koestner inadvertently characterized the four residences as "multi-family." DRC's architect corrected the mistake when he testified.
Koestner described and explained the drainage system as well as utilities, including electric service, sewer and water. He also explained that the drainage system and utilities plan were designed to accommodate a thirty-five-unit residential development. Koestner acknowledged that DRC would pursue all permits and variances from State agencies if the development were approved by the Board.
Vassilios Cocoras, DRC's architect, testified the property was "situated mid-block on the east side of Grand Avenue" and consisted of four lots totaling 30,830 square feet. The residences on the lots were two-family homes, two of which had oversized garages at the rear. DRC intended to demolish the structures on the lots.
Cocoras described the building as "sort of a C or U shape from Grand Avenue. . . . [B]asically three levels of apartments over a ground floor parking level. [The building would have a] central entrance with a set of double doors, and parking areas on either side of that." The façade would be constructed of brick "broken up with pre-cast elements such as free sections." The exterior would also have a "hard coat, stucco, cement stucco in a limestone finish to break up the overall elevation of the building and give it a little bit of variety" and parapets to "give it a little bit of variation" The parapets were designed for aesthetics. Cocoras opined that the new building would improve the aesthetics over the "mishmash of existing housing and some detached garages in the back."
The architect was unsure whether the developer would construct rental units or condominium units. He said that would depend upon the market.
DRC's planning consultant, Ken Ochab, was engaged to conduct a planning analysis. In preparing his planning analysis, Ochab considered the municipal zoning ordinance, the variances DRC needed to build the project, and the standards in the municipal land use law. He also inspected the property and observed adjacent uses and use patterns in the area. In addition to the municipal zoning ordinances, Ochab also considered the Borough's master plan.
Ochab first explained that the development site had four existing two-family homes on four lots. The homes were older, smaller homes. Ochab explained, "[i]n the planning terms, we might call them obsolete, or the property underutilized with respect to the nature of . . . those homes." The homes had four older driveways requiring their occupants to "back out onto Grand Avenue." Ochab testified, "with respect to that, we're dealing with an upgrade of property. And because we don't always have the opportunity to have a 30,000 square foot site, it's an ideal site with respect to providing multi-family units."
Ochab next testified that development along Grand Avenue had changed over the years from single and two-family homes "to multi-family." According to Ochab, "if you drive in either direction up and down Grand Avenue, what you have on both sides of the street are multi-family developments, almost on every block. And some are a little bit older. Some are very new. But, I think, the nature of the development character along Grand Avenue is certainly changing."
Ochab opined that the reason for the changing nature of development along Grand Avenue was that "it might not be the most appropriate area for single family development because of the volume of traffic, and the nature of activity along the street."
Next, Ochab explained that across the street from the proposed development is the Borough of Leonia, and "the property directly across the street . . . is zoned for commercial development." Ochab testified, "[a]nd there isn't [sic] an approval on the books in Leonia for a five story office building directly across the street from the subject property." Although there were currently two homes on the property, they would obviously be demolished.
The transcript appears to contain a typographical error. It is clear from the context of Ochab's testimony that he meant there "is" an approval on the books for a five story office building in Leonia. He did not explain what he meant by the phrase, "an approval on the books." --------
Ochab opined that for all of the foregoing reasons, including "the character of Grand Avenue as it has evolved over the years, the nature of the development across the street, all sort of lend itself to looking at this property and the request for multi-family as a good and positive use."
Ochab next addressed the Borough's Master Plan. The plan discussed a "range of housing opportunities, different housing types." Ochab asserted the number of units DRC sought to develop "certainly fits into what the master plan is looking at with respect to the goals and policies of the municipality."
Concerning the height variance, Ochab stated that "the criteria which basically is there - - can the site accommodate the problems associated with the increase in height in the nature of the site." He explained that parking would be constructed into the inclining grade from Grand Avenue "going up towards the street behind it." Consequently, there would be no on-grade parking and there would be no circulation around the building "where lots of interference might be subject of an issue with respect to those surrounding properties." For that reason, Ochab believed the use was compatible with the surrounding properties.
Ochab also pointed out that the duplexes "on the back street . . . are essentially three stories in height." The parking for the proposed development would be "basically under the grade," so "we're looking at a three-story building here against a three-story building on the duplexes behind it." Ochab concluded, "that's generally the criteria with respect to the height variance itself."
Ochab also testified no view would be impeded as a consequence of the proposed development's height. And though the current view across Grand Avenue is a view of meadows, that could change if a five-story office building were built across the street in Leonia.
Next, Ochab explained that the proposed building was set back enough to provide sufficient light, air, and openness to surrounding properties. As to the variances for the front and rear yard setbacks, Ochab reiterated the architect's testimony that "only a small portion of each building . . . [would] encroach slightly into the front yard area."
According to Ochab, because the proposed development was in the AA zone, the development's coverage had to be compared to "a coverage for a two family home, which is clearly not appropriate in this case." Multi-family buildings obviously require more coverage space and building space than a two-family home. Nonetheless, because parking was beneath the building, forty percent of the site consisted of open area which could be dedicated to landscaping, open space areas, and buffer areas.
Concerning what he termed the "negative criteria," Ochab evaluated "what's the impact on the surrounding properties?" He explained that every development application has some impact, but the "test for planners and the Board is, is there a substantial impact?" In his opinion, there was not a substantial impact because the buildings' setbacks were adequate "and the building type is of relatively minor issue here." Nor did Ochab believe that the Board's granting the variances necessary for the project would substantially impair the zone plan. His opinion was that it would not,
because the AA Zone, which pretty much covers the entirety of Grand Avenue . . . has over the years been developed with many multi-family type developments of varying types: three-stories, four-stories, and the like, with parking underneath. This is part of that evolutionary process for Grand Avenue. And maybe the next time the Master Plan is reviewed, the planning board will actually consider this and . . . look at the zoning issues relative to the AA Zone along Grand Avenue.
Following the testimony of DRC's three witnesses, the Board's chairman moved to approve the development application, subject to three conditions, which included the municipal engineer's designee reviewing the lighting in the area and the developer including "additional plantings along that seven foot strip in the rear." Without further discussion, the six board members present voted to approve the application. During a subsequent meeting, seven members of the zoning board — one of whom was not present at the hearing on DRC's development application — voted to adopt a written resolution granting DRC's application. The resolution provided, in pertinent part:
5. The proposed project is particularly suited for the site and the area. The proposed project consists of 4 contiguous lots. The area is evolving to multi-family developments and away from 1 and 2 family dwellings. The building has been designed to comply with the "E" zone where multi-family developments are permitted. The property is on a major state and county roadway directly across from a major 5-story office structure with 100 parking spaces approved in the Borough of Leonia. The permitted 1 and 2 family dwellings are incompatible with this use and the area. The traffic on Grand Avenue is not conducive to 1 and 2 family homes. The proposed use represented a better zoning and planning alternative for the site.
6. The applicant must also address the negative criteria of the statute by showing that there will not be a substantial detriment to the public good, in other words the Board must consider how the granting of the requested variances would impact nearby properties in the surrounding area and the Borough as a whole. The applicant must also show that there will be no substantial impairment to the intent and purpose of the zone plan and ordinance. The applicant must also provide an enhanced quality of proof and that the granting of a use variance is
not inconsistent with the intent and purpose of the master plan and zoning ordinance. The proofs and findings must reconcile the omission of the proposed use from those that are permitted in the zone. This provides a more substantive basis for the second part of the negative criteria that the variance "will not substantially impair the intent and purpose of the master plan and zoning ordinance."
7. The project is consistent with the goals and objectives of the 1993 Master Plan to maintain and enhance existing areas of stability and encourage the proper relationship between land uses as the area is mixed with residential, commercial and multi-family uses. The area is an appropriate location for multi-family uses as it had a major access to the roadway and is not unusual to assemble this size parcel for housing development. The proposed project will preserve and protect the residential character and existing density of the area. It provides a variety of housing supply in appropriate locations for the Borough and region. It promotes the continued maintenance and rehabilitation of the Borough's housing stock. It further supports the overall philosophy of the State Development and Redevelopment Plan as a means of providing growth management on a statewide basis. Further, the existing housing is obsolete and underutilized and is appropriate for replacement. The project will provide greater housing opportunity in close in [sic] suburban locations where infrastructure is available including municipal services and transportation.
8. The development meets the purposes of the MLUL to provide sufficient space in appropriate locations where infrastructure is available including municipal services and transportation. Apartments are needed in the Borough and Grand Avenue is an
appropriate location. The MLUL also encourages population densities that will promote good neighborhoods and communities. The area is changing to a multi-family character and has the appropriate street frontage for a major high speed street. The development enhances the visual environment through creative development techniques and good overall design by removing obsolete underused properties and replacing it with a new building that will add architectural character and landscaping. The development will promote the free flow of traffic and avoid congestion by removing 4 individual driveways and replacing with 1 driveway with good visibility and access onto Grand Avenue.
9. As to the negative criteria, there is no substantial detriment to the public good. There will be no impact on surrounding properties and no significant effect on adjoining properties. There will be landscaping and fencing to mitigate the variances and any adverse conditions. The project will enhance the adjoining properties. The properties in the rear are all over three stories and, therefore, will not be negatively impacted by the development.
10. In balancing the positive versus the negative criteria, the positive clearly outweighs the negative. The site previously consisted of four (4) lots with older residential dwellings and detached garages. The site will be substantially improved and the negative conditions will be eliminated. The traffic impact will be deminimus based upon the proposed residential units and proximity to mass transportation. There will be sufficient onsite parking. The proposed residential development is consistent with the existing evolving multi-family character of the neighborhood and compatible to the commercial office building
across the street. The new building will also enhance the adjoining properties. The properties to the rear are all 3 plus stories in height. The trend in this area of the AA zone is for multi-family development and the proposed development is consistent with developments in the neighborhood. Therefore, there will be no substantial impairment to the intent and purpose of the zone plan.
11. A D(6) height variance requires different special reasons based on whether the height is appropriate and the site can accommodate problems associated with increased height. The 2 1/2 story 25' height limitation is for 2 families. The E multi-family zone permits 5 stores, 65'. The site is appropriate for the proposed site as no views will be impeded. There are adequate setbacks for the building. The properties in the rear have the appearance of 3 story buildings and there is an approved 5-story building across the street. The height variance also allows for the parking to be placed inside reducing the visual impact to the neighbors.
The resolution also granted a variance from the bulk requirements of the Borough's zoning ordinance.
II.
Our review of a zoning board's decision to grant or deny a variance is deferential. Price v. Himeji, 214 N.J. 263, 285 (2013). This is so because zoning boards have "peculiar knowledge of local conditions [and] must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 567 (2013).
Nevertheless, "[v]ariances to allow new nonconforming uses should be granted only sparingly and with great caution since they tend to impair sound zoning." Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990) (quoting Kohl v. Mayor & Council of Fair Lawn, 50 N.J. 268, 275 (1967)). Thus, though deference is given to a zoning board's decision, "a reviewing court gives less deference to a grant than to a denial of a use variance." Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75 (App. Div. 2006) (citing Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200 (App. Div. 1999)). When "reviewing the grant of a use variance, a court must consider whether a zoning board 'in the guise of a variance proceeding, [has] usurp[ed] the legislative power reserved to the governing body of the municipality to amend or revise the [zoning] plan[.]'" Ibid. (quoting Vidal v. Lisanti Foods, Inc., 292 N.J. Super. 555, 561 (App. Div. 1996)).
We apply the same standard as the Law Division when reviewing a zoning board's decision to grant or deny a variance. Bressman v. Gash, 131 N.J. 517, 529 (1993); D. Lobi Enters., Inc. v. Planning/Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009). We will uphold a board's decision to grant a use variance if the "board's decision comports with the statutory criteria and is founded on adequate evidence." Burbridge, supra, 117 N.J. at 385.
Zoning boards of adjustment are delegated the power to grant a variance "in particular cases and for special reasons" — commonly referred to as the positive criteria — provided an applicant shows that "such variance or other relief 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" — commonly referred to as the negative criteria. N.J.S.A. 40:55D-70.
Concerning the positive criteria,
[o]ur case law recognizes three categories of circumstances in which the "special reasons" required for a use variance may be found: (1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility, see Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 159-60 (1992); (2) where the property owner would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone, see Medici v. BPR Co., 107 N.J. 1, 17 [n.9] (1987); and (3) where the use would serve the general welfare because "the proposed site is particularly suitable for the proposed use." Smart SMR [of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998)] (quoting Medici, supra, 107 N.J. at 4).
[Saddle Brook Realty, supra, 388 N.J. Super. at 76.]
A zoning board of adjustment's "[d]etailed factual finding that distinguish the property from surrounding sites and demonstrate a need for the proposed use may help to establish that the property is 'particularly suitable' for the proposed use and a lack of such findings may be fatal when tested on review." Price, supra, 214 N.J. at 288.
III.
In addressing the positive criteria, namely, that the project was particularly suited for the development site and the area, the Board stated: "the proposed project consists of [four] contiguous lots." That finding does not support the conclusion that the proposed location is "particularly suitable" for a multi-family development. The four lots, approximately fifty feet wide and one hundred fifty feet in depth, are not particularly suitable for the site simply because they are contiguous. We are unpersuaded that a developer's ability to purchase contiguous lots makes a site "particularly suitable" for a non-conforming use.
The Board also found "[t]he area is evolving to multi-family developments and away from [one] and [two] family dwellings." First, as discussed infra, the evolving nature of a neighborhood or zone may very well be an appropriate factor to consider concerning the negative criteria. Even if it were a relevant factor when evaluating positive criteria, the Board's general statement, based on the applicant's planning consultant's general statements, is not the type of "[d]etailed factual finding[] that distinguish the property from surrounding sites and demonstrate a need for the proposed use[.]" Price, supra, 214 N.J. at 288.
Similarly, the Board's statement that the development project had "been designed to comply with the 'E' zone where multi-family developments are permitted" is not relevant to whether the development project was particularly suitable for the site for which the variance was sought.
The Board also noted the property was "on a major site and county roadway directly across from a major [five]-story office structure with one hundred parking spaces approved in the Borough of Leonia"; and that one and two family dwellings were incompatible with this use and the area. Further, the Board found that the traffic on Grand Avenue is not conducive to one and two family homes. The Board concluded that the proposed use represents a better zoning and planning alternative for the site.
The Board's statement concerning the office building in Leonia is somewhat ambivalent. The structure had not been built when DRC filed its development application. And DRC's planning consultant's testimony that the office building was "on the books" does not provide certainty that the building would be constructed any time in the near future. Additionally, the fact that one and two family dwellings in the Borough are incompatible with a proposed office building in another municipality, while perhaps relevant to the negative criteria, does not demonstrate why the proposed project is particularly suitable to the development site.
In short, the Board's findings did not establish why the development site was particularly suitable for DRC's development project. The Board's findings were not the type of detailed factual findings required to distinguish the property from surrounding sites, nor did these demonstrate a need for the proposed use. Price, supra, 214 N.J. at 288.
In Medici, the Court held that in addition to proof of special reasons, an applicant was required to establish by an enhanced quality of proof, and a board of adjustment by clear and specific findings, "that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici, supra, 107 N.J. at 21. The Court further held that "[t]he applicant's proofs and the board's findings . . . must reconcile the proposed use variance with a zoning ordinance's omission of the use from those permitted in the zoning district." Ibid. As an example, the Court noted "proof that the character of a community has changed substantially since the adoption of the master plan and zoning ordinance may demonstrate that a variance for a use omitted from the ordinance is not incompatible with the intent and purpose of the governing body when the ordinance was passed." Ibid. Here, though DRC's planning consultant testified regarding other multi-family buildings in the AA zone, he provided no testimony regarding when and under what circumstances those multi-family units were constructed. The timing of construction was particularly critical in view of the zoning ordinance's explicit statement: "It is specifically not the intent to provide additional multi-family (three or more dwelling units) . . . in this district."
The Court in Medici elaborated further, giving other examples of evidence that would satisfy the enhanced proof that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance:
The nature of the proofs offered to achieve reconciliation of the proposed variance with the zoning ordinance will depend on the circumstances of each case. It may be that the proposed use was one, like a health club, that was uncommon when the ordinance was last revised, but has since gained currency. Competent proofs to this effect could dispel the concern that exclusion of the use was deliberate rather than
inadvertent. Likewise, a variance application to permit a commercial use to be established on residentially-zoned property might also be supported by proofs demonstrating substantial changes in the character of the neighborhood surrounding the subject property since the adoption of the ordinance, in order to reconcile the apparent conflict between the ordinance and the proposed variance. Similarly, the needs and character of an entire community may be altered by extrinsic factors, such as the proximity of major highway construction or commercial development in adjoining municipalities. Such circumstances may create a demand for uses, such as hotels, that were not anticipated when the ordinance was last revised. These examples are offered merely to illustrate, and not to exhaust, the nature of the proofs that could be offered to reconcile a proposed use variance with the provisions of the zoning ordinance.
[107 N.J. at 21, n.11.]
The Board determined the project was "consistent with the goals and objectives of the 1993 Master Plan to maintain and enhance existing areas of stability and encourage the proper relationship between land uses as the area is mixed with residential, commercial and multi-family uses." Although the Board determined the proposed project would "preserve and protect the residential character and existing density of the area," that statement is somewhat difficult to reconcile in view of the development of a thirty-five unit multi-family complex that replaces four one or two-family homes.
The Board also found that the development project would provide a variety of housing supply in appropriate locations for the Borough and region. That finding is not only unsupported by the record, but is also devoid of any discussion of why the existing multi-family zones do not accomplish that need. Moreover, the Board's comment that the "development will promote the free flow of traffic and avoid congestion by removing [four] individual driveways and replacing [them] with [one] driveway with good visibility and access onto Grand Avenue" is questionable at best, particularly in the absence of any formal traffic studies.
The Board's findings might have been sufficient had they been based on more specific evidence developed during the hearing. But as we have previously pointed out, there was no evidence presented as to when the multi-family complexes referenced by DRC's expert were developed in relationship to the enactment of the zoning ordinance. This is particularly critical in view of the ordinance's explicit statement that the zone was not intended to have additional multi-family development.
In view of our determination that the Board's grant of the use variance is invalid, we need not address plaintiffs' arguments concerning the height variance.
DRC contends the zoning ordinance that included the AA Residential zone was presumptively invalid under N.J.S.A. 40:55D-89.1, which states: "The absence of the adoption by the planning board of a reexamination report pursuant to [N.J.S.A. 40:55D-89] shall constitute a rebuttable presumption that the municipal development regulations are no longer reasonable." N.J.S.A. 40:55D-89 requires a governing body, at least every ten years, to provide for a general reexamination of its master plan and development regulations by the planning board. It is undisputed that, at the time of DRC's development application hearing, the latest master plan was prepared in 1993 and reexamined in December 1999. Therefore, the latest master plan was reexamined nearly ten years before the hearing on DRC's development application.
One treatise suggests "the issue of whether municipal development regulations continue to be reasonable even after failure to make the periodic re-examination of the master plan required by statute can only be raised in an action in the Superior Court directly attacking the continued reasonableness of the ordinance." William M. Cox & Stuart R. Koenig, New Jersey Zoning & Land Use Administration (GANN), § 8-4 (GANN 2015). In any event, a municipality's failure to comply with the statute does not expand a board of adjustment's power to grant use variances. Vidal v. Lisanti Foods, Inc., 292 N.J. Super. 555, 567 (App. Div. 1996).
For the foregoing reasons, we reverse the Law Division judgment affirming the Board's grant of a use variance to DRC.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION