Shaked v. Bd. of Adjustment of the Twp. of N. Bergen & CHR Partners, LLC
| Decision Date | 23 May 2018 |
| Docket Number | DOCKET NO. A-4634-15T2 |
| Parties | AMIR SHAKED, EFRAT SHAKED, KATARZYNA KRICKOVIC, NENAD KRICKOVIC and GURJEET TANEJA, Plaintiffs-Appellants, v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF NORTH BERGEN and CHR PARTNERS, LLC, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Simonelli, Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2484-15.
Malcolm J. McPherson, Jr., argued the cause for appellants.
John R. Dineen argued the cause for respondent Board of Adjustment of the Township of North Bergen (Netchert, Dineen & Hillmann, attorneys; Christine S. Diana, on the brief).
Joseph L. Basralian argued the cause for respondent CHR Partners, LLC (Winne, Banta, Basralian & Kahn, PC, attorneys; Joseph L. Basralian, of counsel and on the brief; R.N. Tendai Richards, on the brief).
In this action in lieu of prerogative writs, plaintiffs Amir Shaked, Efrat Shaked, Katarzyna Krickovic, Nenad Krickovic, and Gurjeet Taneja appeal from the May 23, 2016 Law Division order, which affirmed the decision of defendant Board of Adjustment, Township of North Bergen (Board) to approve the amended application of defendant CHR Partners, LLC (CHR) to construct a seventy-unit high-rise building in North Bergen. We affirm.
The subject property is known as 8701 and 8703-8719 Church Hill Road, and designated on the Township of North Bergen (Township) tax map as Block 435, Lots 39 and 40 (previously Lots 30 to 40). The property is located in the R-1 Low Density Residential/Townhouse District, which permits one- and two-family attached dwelling units and includes a townhouse overlay (the R-1 District).
In 2006, CHR applied for preliminary and final site plan approval to develop a fifty-four unit multi-family high-rise building with nine floors of residences above four floors of parking comprised of nine one-bedroom units, thirty-six two-bedroom units, and nine three-bedroom townhouse units on a 1.67acre site (the 2006 application). CHR applied for a use variance because a high-rise apartment building was not a permitted use in the R-1 District.
CHR also applied for a density variance for 41.6 units per acre, whereas twenty-five units per acre was allowed in the R-1 District; a height variance for 114.17 feet, whereas forty-five feet was allowed; a rear yard setback variance of eleven feet, whereas thirty feet was required; a lot coverage variance for ninety-three percent, whereas ninety percent was allowed; a front yard setback variance for twenty-one feet and eight feet, whereas ten feet was allowed; and a side yard setback variance for nineteen feet and eight feet, whereas fifteen feet and fifty feet was allowed. On July 20, 2006, the Board issued a resolution approving the site plan and granting all variances CHR requested (the Original Approval).
CHR subsequently applied for an amendment to the site plan approved in the Original Approval to permit it to subdivide the townhouses on Lots 39 and 40 from the high-rise building on Lots 30 to 38, and install an interior electronic elevator parking system in the high-rise building to eliminate two levels of parking. Under the amended plan, CHR would proceed with the project in two phases, with the townhouses constructed in phase one and the high-rise building constructed in phase two. On July11, 2007, the Board issued a resolution approving the application (the 2007 Approval).
In 2009, CHR constructed the nine townhouses. CHR also rebuilt Church Hill Road to the Township's road standards, and installed underground utilities along the entire length of the property and beyond to neighboring properties, thirteen on-street parking spaces on Church Hill Road, and a conforming intersection of Church Hill Road with River Road. By August 24, 2010, CHR sold all nine townhouses and conveyed title by separate deeds.
Prior to the sale of the first townhouse, the Township's tax assessor combined Lots 39 and 40, on which the townhouses were located, into a new tax Lot 40 with a numerical designation for each townhouse of one through nine. The tax assessor also combined Lots 30 to 38, on which CHR would construct the high-rise apartment building, into a new tax Lot 39. However, the subdivision of the townhouse Lots 39 and 40 from high-rise building Lots 30 to 38 never occurred because CHR withdrew its application for a subdivision.
On April 11, 2011, CHR applied for an amendment to the site plan approved in the Original Approval to permit construction of eighty units in the high-rise building and four floors of parking containing 138 parking spaces (the 2011 application). The eightyunits would comprise thirty one-bedroom units, forty two-bedroom units, and ten three-bedroom units.
On November 21, 2011, the North Bergen Fire Department advised the North Bergen Director of Public Safety that the building plan posed possible fire hazards, as "[t]here [was] no designated area for emergency vehicles to exit Church Hill Road" and "[t]here [was] no access to the rear of the structure for firefighter operations and rescue if needed." Prior thereto, on November 16, 2012, CHR withdrew the 2011 application and decided to proceed with the fifty-four-unit project approved in the Original Approval.
On June 26, 2014, CHR applied for an amendment to the site plan approval in the Original Approval to increase the number of units from fifty-four to eighty (the 2014 application). The units would be smaller in size and would comprise thirty one-bedroom units, forty two-bedroom units, and ten three-bedroom units. The building would have the same number of stories, footprint, and height as the originally approved fifty-four unit building.
CHR incorporated into its application and relied on the use, height, and other variances granted in the Original Approval, and requested a further density variance to increase the number of units per acre. Although the proposed building would be in the same location as the previously approved building, CHR requesteda front yard variance of 2.78 feet because of the deduction of a right-of-way granted to the Township for the improvements to Church Hill Road, and for 0.3 feet because of the high-rise windows beginning at the fourth floor. CHR also requested a waiver to permit parking spaces of eight feet, six inches by eighteen feet instead of the nine feet by eighteen feet required by the State Residential Site Improvement Standards.
The Board held hearings on October 16, 2014, December 16, 2014, and March 12, 2015. During the December 16, 2014 hearing, CHR amended the 2014 application to reduce the number of units from eighty to seventy with ten floors of residences above four floors of parking.
CHR's engineer, Calisto Bertin, testified about the modifications to the site plan relating to the exterior of the proposed building. He also testified about the reconstruction of River Road, and the building's location and height.
CHR's architect, Conrad Roncati, testified about the building's height, the distance between the building and the curb, changed market conditions creating a need for a building with smaller units, and the residential square footage added to the proposed building between the 2006 Resolution and the 2014 application.
CHR's licensed traffic engineer, Charles Olivio, testified that the amended plan provided parking in excess of the required amount of spaces, the seventy-unit project would not significantly impact the traffic volume on the River Road intersection, and the proposal of a seventy-unit building would reduce any increased traffic volume arising from the project. He also testified that the installation of the sidewalk and increase in road width during phase one of the project would improve traffic flow in the area.
CHR's planner, Gabriel Bailer, testified as to the positive and negative criteria with respect to the requested variances. He testified as to both the enhanced criteria under Medici v. BPR Co., 107 N.J. 551 (1988), justifying the use variance to increase the overall number of units, and with respect to the density variance to justify the increase in the number of units from fifty-four to seventy set forth in the relaxed standards under Coventry Square, Inc. v. Westwood Zoning Board of Adjustment, 138 N.J. 285 (1994).
On April 16, 2015, the Board issued a resolution approving the 2014 application (the 2015 Resolution), which stated:
The 2015 Resolution specified the evidence the Board considered, and noted the following:
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