NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1562-18T1
440 COMPANY-CARRIAGE HOUSE, LP,
Plaintiff-Respondent,
v.
ZONING BOARD OF ADJUSTMENT FOR THE BOROUGH OF PALISADES PARK,
Defendant-Respondent,
and
BERKELEY PALISADES PARK, LLC,
Defendant-Appellant.
Argued November 13, 2019 – Decided January 22, 2020
Before Judges Yannotti, Hoffman, and Currier.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0123-18.
Brian M. Chewcaskie argued the cause for appellant (Cleary Giacobbe Alfieri Jacobs, LLC, attorneys; Brian M. Chewcaskie, of counsel and on the briefs; Jessica V. Henry, on the briefs).
Gerald R. Salerno argued the cause for respondent 440 Company-Carriage House, LP (Aronsohn Weiner Salerno & Kaufman, PC, attorneys; Gerald R. Salerno, on the brief).
Albert H. Birchwale argued the cause for respondent Zoning Board of Adjustment for the Borough of Palisades Park (Testa & DeCarlo, attorneys; Diane T. Testa, on the brief).
PER CURIAM
Defendant Berkeley Palisades Park, LLC (Berkeley) appeals the October
22, 2018 order vacating the decision of defendant Zoning Board of Adjustment
for the Borough of Palisades Park (the Board) to grant use and bulk variances
and final site plan approval for the construction of a residential complex. The
trial court vacated the Board's approval of Berkeley's application after
determining the Board arbitrarily modified the application without justification.
We affirm.
Berkeley filed an application with the Board in March 2016 seeking the
approval of a multi-family residential high-rise building comprised of seventeen
stories – fourteen residential floors above three levels of parking in addition to
three parking levels below grade. As a high-density apartment building, the
project was designated for affordable housing. The proposed building would
A-1562-18T1 2 have 154 residential units, 180 parking spaces and would be 175 feet tall.
Plaintiff owns the Carriage House, an eighteen-story residential high-rise
building in Fort Lee, about 200 feet away from Berkeley's property.
Four variances were required for approval: 1) a "d(1)" use variance
because under the New Jersey Residential Site Improvement Standards,
N.J.A.C. 5:21-1.1 to -8.1, the property is classified as a high-rise residential
building; 2) a "d(5)" density variance because the applicable ordinance permits
64 units and Berkeley wanted to build 154;1 3) a "d(6)" height variance because
Berkeley sought to construct a seventeen-story building, and eight stories is the
maximum under the ordinance;2 and 4) a "c(1)" variance because the application
specified a zero foot front yard setback when the ordinance required fifteen feet. 3
Although the property is in Palisades Park, due to wetlands, topography
and road layout, it cannot be accessed through that town. Therefore, Palisades
Park had previously entered into an agreement with the neighboring town – Fort
Lee – to access the property via a road located in Fort Lee.
1 Borough of Palisades Park Municipal Ordinance § 300-9.1(E)(1)(a). 2 Id. at § 300-9.1(D)(2)(a). 3 Id. at § 300-9.1(F)(1)(a).
A-1562-18T1 3 In response to Berkeley's application, the Board conducted nine public
hearings between October 2016 and October 2017. The site plan and application
were amended several times during the course of the hearings; both parties
produced expert testimony.
At the end of the October 16, 2017 hearing, the Chairman of the Board
made a motion to approve the application, modified, apparently sua sponte, to a
fourteen-story residential building with 121 units. The Board approved the
application, as modified by the Chairman, memorializing its decision in a
November 20, 2017 resolution.
Plaintiff filed a complaint in lieu of prerogative writs, asserting the
Board's decision was arbitrary, capricious and unreasonable. On October 22,
2018, the trial court issued a comprehensive twenty-seven-page written decision
and order vacating the Board's approval of the application. The court concluded
that "the resolution as written and passed . . . granted relief far in excess of what
was sought by [Berkeley], and that relief was granted arbitrarily, capriciously
and unreasonably and without basis in the record."
In its decision, the court noted that the lengthy resolution failed to explain
why the final application submitted by Berkeley did not meet the criteria for the
required variances or why the Chairman's modified application did. The court
A-1562-18T1 4 stated the resolution was "devoid of reasons why the Board determined that a
reduction in floors and units to 14 and 121, meets the criteria, when 17 and 154
did not." Furthermore, the court noted: "[T]he entire resolution assumes,
without basis in the record, that [Berkeley] will accept the reduction in stories,
and a more than a twenty percent reduction in the number of units, but continue
to abide by the representations made in furtherance of its application for [thirty -
three] additional units."
The court observed that, although the Board did not specifically deny the
requested variances, it "did in fact deny them de facto by proposing, apparently
sua sponte, substantial modifications and granting variances, which on the face
of the resolution, appear to be a significant reduction from those sought."
Because the Board relied upon testimony presented in support of the application
to both deny and grant the application as modified, without any explanation, the
court was unable to "reasonably analyze what the resolution passed by the Board
actually permits. . . ." Therefore, the court could not "determine whether the
variances granted [were] inconsistent with the intent and purpose of the master
plan and zoning ordinance."
On appeal, Berkeley argues: 1) the trial court failed to accord deference
to the Board's determination; 2) the Board's analysis of the positive and negative
A-1562-18T1 5 criteria for the "d" variances was not an abuse of discretion; 3) the court erred
in not addressing the Board's analysis of the "c" variance prior to vacating the
site's approval; and 4) the Board's omission of certain conditions in the
resolution was not an abuse of discretion.
In reviewing a zoning board's decision, we are governed by the same
standard used by the trial court. Bd. of Educ. of Clifton v. Zoning Bd. of
Adjustment of Clifton, 409 N.J. Super. 389, 433-34 (App. Div. 2009) (citing
Cohen v. Bd. of Adjustment of Borough of Rumson, 396 N.J. Super. 608, 614-
15 (App. Div. 2007)). "Ordinarily, when a party challenges a zoning board's
decision through an action in lieu of prerogative writs, the zoning board's
decision is entitled to deference." Kane Props., LLC v. City of Hoboken, 214
N.J. 199, 229 (2013). Therefore, a court "should not disturb the discretionary
decisions of local boards that are supported by substantial evidence in the record
Free access — add to your briefcase to read the full text and ask questions with AI
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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1562-18T1
440 COMPANY-CARRIAGE HOUSE, LP,
Plaintiff-Respondent,
v.
ZONING BOARD OF ADJUSTMENT FOR THE BOROUGH OF PALISADES PARK,
Defendant-Respondent,
and
BERKELEY PALISADES PARK, LLC,
Defendant-Appellant.
Argued November 13, 2019 – Decided January 22, 2020
Before Judges Yannotti, Hoffman, and Currier.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0123-18.
Brian M. Chewcaskie argued the cause for appellant (Cleary Giacobbe Alfieri Jacobs, LLC, attorneys; Brian M. Chewcaskie, of counsel and on the briefs; Jessica V. Henry, on the briefs).
Gerald R. Salerno argued the cause for respondent 440 Company-Carriage House, LP (Aronsohn Weiner Salerno & Kaufman, PC, attorneys; Gerald R. Salerno, on the brief).
Albert H. Birchwale argued the cause for respondent Zoning Board of Adjustment for the Borough of Palisades Park (Testa & DeCarlo, attorneys; Diane T. Testa, on the brief).
PER CURIAM
Defendant Berkeley Palisades Park, LLC (Berkeley) appeals the October
22, 2018 order vacating the decision of defendant Zoning Board of Adjustment
for the Borough of Palisades Park (the Board) to grant use and bulk variances
and final site plan approval for the construction of a residential complex. The
trial court vacated the Board's approval of Berkeley's application after
determining the Board arbitrarily modified the application without justification.
We affirm.
Berkeley filed an application with the Board in March 2016 seeking the
approval of a multi-family residential high-rise building comprised of seventeen
stories – fourteen residential floors above three levels of parking in addition to
three parking levels below grade. As a high-density apartment building, the
project was designated for affordable housing. The proposed building would
A-1562-18T1 2 have 154 residential units, 180 parking spaces and would be 175 feet tall.
Plaintiff owns the Carriage House, an eighteen-story residential high-rise
building in Fort Lee, about 200 feet away from Berkeley's property.
Four variances were required for approval: 1) a "d(1)" use variance
because under the New Jersey Residential Site Improvement Standards,
N.J.A.C. 5:21-1.1 to -8.1, the property is classified as a high-rise residential
building; 2) a "d(5)" density variance because the applicable ordinance permits
64 units and Berkeley wanted to build 154;1 3) a "d(6)" height variance because
Berkeley sought to construct a seventeen-story building, and eight stories is the
maximum under the ordinance;2 and 4) a "c(1)" variance because the application
specified a zero foot front yard setback when the ordinance required fifteen feet. 3
Although the property is in Palisades Park, due to wetlands, topography
and road layout, it cannot be accessed through that town. Therefore, Palisades
Park had previously entered into an agreement with the neighboring town – Fort
Lee – to access the property via a road located in Fort Lee.
1 Borough of Palisades Park Municipal Ordinance § 300-9.1(E)(1)(a). 2 Id. at § 300-9.1(D)(2)(a). 3 Id. at § 300-9.1(F)(1)(a).
A-1562-18T1 3 In response to Berkeley's application, the Board conducted nine public
hearings between October 2016 and October 2017. The site plan and application
were amended several times during the course of the hearings; both parties
produced expert testimony.
At the end of the October 16, 2017 hearing, the Chairman of the Board
made a motion to approve the application, modified, apparently sua sponte, to a
fourteen-story residential building with 121 units. The Board approved the
application, as modified by the Chairman, memorializing its decision in a
November 20, 2017 resolution.
Plaintiff filed a complaint in lieu of prerogative writs, asserting the
Board's decision was arbitrary, capricious and unreasonable. On October 22,
2018, the trial court issued a comprehensive twenty-seven-page written decision
and order vacating the Board's approval of the application. The court concluded
that "the resolution as written and passed . . . granted relief far in excess of what
was sought by [Berkeley], and that relief was granted arbitrarily, capriciously
and unreasonably and without basis in the record."
In its decision, the court noted that the lengthy resolution failed to explain
why the final application submitted by Berkeley did not meet the criteria for the
required variances or why the Chairman's modified application did. The court
A-1562-18T1 4 stated the resolution was "devoid of reasons why the Board determined that a
reduction in floors and units to 14 and 121, meets the criteria, when 17 and 154
did not." Furthermore, the court noted: "[T]he entire resolution assumes,
without basis in the record, that [Berkeley] will accept the reduction in stories,
and a more than a twenty percent reduction in the number of units, but continue
to abide by the representations made in furtherance of its application for [thirty -
three] additional units."
The court observed that, although the Board did not specifically deny the
requested variances, it "did in fact deny them de facto by proposing, apparently
sua sponte, substantial modifications and granting variances, which on the face
of the resolution, appear to be a significant reduction from those sought."
Because the Board relied upon testimony presented in support of the application
to both deny and grant the application as modified, without any explanation, the
court was unable to "reasonably analyze what the resolution passed by the Board
actually permits. . . ." Therefore, the court could not "determine whether the
variances granted [were] inconsistent with the intent and purpose of the master
plan and zoning ordinance."
On appeal, Berkeley argues: 1) the trial court failed to accord deference
to the Board's determination; 2) the Board's analysis of the positive and negative
A-1562-18T1 5 criteria for the "d" variances was not an abuse of discretion; 3) the court erred
in not addressing the Board's analysis of the "c" variance prior to vacating the
site's approval; and 4) the Board's omission of certain conditions in the
resolution was not an abuse of discretion.
In reviewing a zoning board's decision, we are governed by the same
standard used by the trial court. Bd. of Educ. of Clifton v. Zoning Bd. of
Adjustment of Clifton, 409 N.J. Super. 389, 433-34 (App. Div. 2009) (citing
Cohen v. Bd. of Adjustment of Borough of Rumson, 396 N.J. Super. 608, 614-
15 (App. Div. 2007)). "Ordinarily, when a party challenges a zoning board's
decision through an action in lieu of prerogative writs, the zoning board's
decision is entitled to deference." Kane Props., LLC v. City of Hoboken, 214
N.J. 199, 229 (2013). Therefore, a court "should not disturb the discretionary
decisions of local boards that are supported by substantial evidence in the record
and reflect a correct application of the relevant principles of land use law." Lang
v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58-59 (1999).
"[T]he action of a board will not be overturned unless it is found to be
arbitrary and capricious or unreasonable, . . . ." Dunbar Homes, Inc. v. Zoning
Bd. of Adjustment of Twp. of Franklin, 233 N.J. 546, 558 (2018) (alteration in
original) (quoting Grabowsky v. Twp. of Montclair, 221 N.J. 536, 551 (2015)).
A-1562-18T1 6 "A board acts arbitrarily, capriciously, or unreasonably if its findings of fact in
support of [its decision] are not supported by the record, . . . or if it usurps power
reserved to the municipal governing body or another duly authorized municipal
official, . . . ." Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 33 (2013) (citations
omitted) (first citing Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustment,
152 N.J. 309, 327 (1998); then citing Leimann v. Bd. of Adjustment of Cranford,
9 N.J. 336, 340 (1952)).
A board's decision concerning a question of law "is subject to a de novo
review by the courts, and is entitled to no deference since a zoning board has 'no
peculiar skill superior to the courts' regarding purely legal matters." Dunbar
Homes, 233 N.J. at 559 (quoting Chicalese v. Monroe Twp. Planning Bd., 334
N.J. Super. 413, 419 (Law Div. 2000)).
As we have explained, Berkeley sought to construct a seventeen-story
building with 154 units. The governing ordinance required a residential building
to be less than nine stories with a maximum of 64 units. Therefore, Berkeley's
application sought use and bulk variances. To approve Berkeley's application,
the Board had to grant the needed variances. And, in its resolution, the Board
agreed the variances were required.
A-1562-18T1 7 However, the Board did not grant the requested variances. Nor did it
approve Berkeley's application. Instead, the Board approved a building of
fourteen stories and 121 units – without any rationale provided as to why this
number of stories and units met the criteria for variance relief or why Berkeley's
proposed building did not. Moreover, the reduction in units was still double the
number of units permitted on the property. Borough of Palisades Park Municipal
Ordinance § 300-9.1(E)(1)(a).
In approving a substantially modified plan of its own devise, the Board
did not grant the needed variances or approve Berkeley's application. To the
contrary, its sua sponte, unsupported modification was a de facto denial of
Berkeley's application. Without any explanation for its determination, we must
conclude the Board's actions were arbitrary and capricious. Therefore, the
approval of the modified application is vacated.
Affirmed.
A-1562-18T1 8