Price v. OZ Holdings, LLC
| Decision Date | 22 May 2019 |
| Docket Number | DOCKET NO. A-3452-17T2 |
| Parties | LARRY PRICE, Plaintiff-Appellant, v. OZ HOLDINGS, LLC and UNION CITY ZONING BOARD OF ADJUSTMENT, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Yannotti and Rothstadt.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1377-17.
Larry Price, appellant, argued the cause pro se.
Michael S. Goodman argued the cause for respondent OZ Holdings, LLC (M. Goodman & Associates, PC, attorneys; Michael S. Goodman, on the brief).
Gregory F. Kotchick argued the cause for respondent Union City Zoning Board of Adjustment (Durkin & Durkin, LLC, attorneys; Gregory F. Kotchick, of counsel and on the brief).
Plaintiff Larry Price appeals from the Law Division's February 23, 2018 judgment dismissing his complaint in lieu of prerogative writs, which was entered after the trial judge found that defendant Union City Zoning Board of Adjustment (the Board) did not act arbitrarily, capriciously, or unreasonably in granting the zoning relief sought by defendant OZ Holdings, LLC (OZ). The subject applications sought simultaneous subdivision and site plan approval for a lot fronting two perpendicular streets, one in a commercial zone and the other in a residential zone, and then variances for the newly-created lot to allow construction upon it of a three-family home.
On appeal, among other arguments, plaintiff contends that the trial judge's decision should be remanded under Rule 1:7-4 because he did not address the critical issue of whether the hardship relied upon by the Board in granting OZ relief was self-imposed by the subdivision, thereby warranting a reversal of the Board's determination. Defendants urge that the trial judge's decision was correct, but if it was deficient, we should exercise our original jurisdiction to correct any deficiencies. For the reasons that follow, we vacate the judgment and remand for further findings.
The subdivision approval that the Board granted OZ created two lots from one that was already improved by a commercial building situated on Bergenline Avenue in Union City. The one parcel had been two lots in the past but merged when their ownership became unified many years earlier. Although one parcel, the municipality historically treated the property for tax purposes as two lots, designating them as Lots 45 and 46 in Block 254 on the municipal tax map. The entire parcel was located within the municipality's Commercial Neighborhood (C-N) district, in which residential structures are not permitted.
The subdivision separated the one parcel into Lot 46 fronting Bergenline Avenue, commonly known as 4313-4315 Bergenline Avenue, and Lot 45, the new lot, fronting Lincoln Street and designated as 506 Lincoln Street. Lincoln Street is primarily residential in character and contains several three-family homes. Properties that front Lincoln Street are located in the city's residential (R-1) zone.
The Board approved OZ's subdivision and variance applications at hearings conducted on the same day. OZ's application sought variances from the municipality's Land Use Ordinance that required lots in the C-N zone to be 2500 square feet, one hundred feet in depth, and to have a twenty-foot rear setback and building coverage not to exceed eighty percent. Variances were required for Lot 45 because it was only seventy-two feet deep, contained 1875 square feet, violated the rear setback requirements, and because the proposed home would cover one hundredpercent of the lot. Accordingly, OZ sought relief from the minimum lot area, minimum lot depth, and minimum rear yard requirements.
At the hearing, OZ's counsel explained that the variances OZ sought to construct the three-family home had been approved by the Planning Board in 2007, but at that time, OZ failed to request subdivision approval. An architect, Orestes Valella, testified as to OZ's proposed building plan, including its design and dimensions. Valella noted that the only changes that had been made to the plans that were approved in 2007 related to the side yard dimensions, and that OZ intended to meet the conditions imposed on them at the time of that approval.
Richard Schommer, a licensed professional planner, also testified for OZ. Schommer explained the history of the subdivided lot and that commercial use on Lot 45 would be inappropriate because it fronts a residential street in a residential zone, with similar lots. He stated that there would be no negative impact caused by the variance because the construction of a three-family residence would be consistent with the character of the neighborhood. Regarding the bulk variances, Schommer stated that the lot sizes along Lincoln Street are uniform and that the proposed structure on Lot 45 would be consistent with other properties on the street.
Significantly, Schommer explained that Lot 45's dimensions created a hardship and the application dealt "with certain limitations and hardships with respect to the dimensions of the property, that [OZ] can't overcome [and] are notcreated by the applicant." Later during questioning by plaintiff, Schommer addressed the question of whether the hardship he referred to was "self-created," without addressing whether the subdivision itself created the hardship. He stated the following:
I think because if you look at the dimensions of the total property, in fact, it did exist as two lots previously. They . . . were merged. If you look at the survey, it's actually identified as two separate tracts, with two separate lot numbers, and two different . . . tracts. That's how it . . . did exist at one point in time. I think that's the appropriate configuration for this property. Being L shaped is unusual. You don't see that in the neighborhood. If you look at other properties, they're all rectangular. Subdividing it in the manner proposed is consistent with the other lots along Lincoln Street. It's consistent with other properties along . . . Bergenline. So, I think it actually makes the properties more consistent with the neighborhood, albeit we do need relief because the dimensions of the property don't allow us to have a fully conforming . . . lot.
On February 16, 2017, the Board issued a resolution granting the subdivision approval OZ sought, based on its consideration of Valella's and Schommer's testimonies and its findings that there were no negative criteria associated with the project and the subdivision would not conflict with the character of the neighborhood because the other lots fronting Lincoln Street were similar in size. The Board stated that "special reasons" existed for the requested relief; that the relief could be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zoning plan; and that the facts, testimony, and exhibitsreviewed were in accordance with the requirements of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163.
On that same day, the Board issued a second resolution granting the site plan and variance approvals OZ sought. The Board again cited Valella's unrefuted testimony regarding the site plans and found that no negative criteria were associated with the project; the proposed use would be more conforming with the character of the neighborhood; and that OZ was modifying its previously-approved plans to accommodate larger side yards for the westerly neighbor and the egress to the store on the adjacent property. Also, the Board again stated that "special reasons" existed for the requested relief, that such relief could be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zoning plan, and that the application satisfied the requirements of the MLUL. Notably, in neither resolution did the Board make any findings as to whether OZ created the hardship it relied upon in support of its application.
On April 4, 2017, plaintiff filed a four-count complaint in lieu of prerogative writs, seeking to set aside the Board's determination. Plaintiff contended in his complaint that the Board's approval of OZ's applications was overall arbitrary, capricious, or unreasonable. Specifically, in count one, plaintiff alleged that the Board's approval of "[t]he subdivision create[d] an undersized [new] lot and render[ed] the existing commercial site nonconforming," which was not permissible.In the second count, he alleged that because "[t]he resulting [new] lot is both undersized and lacks the required lot length [its] development require[d] c(1)1 hardship variances . . . [b]ut the hardship [was] self-created," warranting the denial of the application for development as a matter of law. In the third count, the complaint alleged that the Board's approval of the required "(d)(1)"2 use variance was improper because OZ failed to establish "special reasons" and the Board failed to require OZ to demonstrate "an enhanced quality of proof and [make] clear and specific findings to reconcile the proposed use variance with [the] zoning ordinance's omission of the use from those permitted."
At trial, plaintiff argued that the hardship upon which the Board relied was self-created and granting subdivision approval resulted in making Lot 46 a nonconforming lot. Defendants argued that the lots were originally merged in error and that Lot 45 was intended to be a residential property and should have been placed in the R-1 rather than C-N zone. Defendants also explained that Lot 45 could not be developed for commercial purposes because it fronts a residential street. OZ also contended that it demonstrated all of the required proofs...
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