NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1853-15T4 A-4780-15T4
JULIO C. NUNEZ,
Plaintiff-Appellant,
v.
ENGEL INVESTMENTS, LLC, ENGEL GARDENS, LLC, and PLANNING BOARD OF THE CITY OF ELIZABETH, NEW JERSEY,
Defendants-Respondents. _______________________________
Argued April 5, 2017 – Decided June 6, 2017
Before Judges Manahan and Lisa.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket Nos. L- 3712-14 and L-3633-15.
Fred R. Gruen argued the cause for appellant (Gruen & Goldstein, attorneys; Mr. Gruen, on the briefs).
Scott E. Becker argued the cause for respondent Engel Investments, LLC.
Patrick J. McNamara argued the cause for respondent Planning Board of the City of Elizabeth, New Jersey (Scarinci & Hollenbeck, LLC, attorneys; Mr. McNamara, on the briefs).
PER CURIAM In these consolidated appeals, plaintiff Julio C. Nunez
appeals from orders entered by the Law Division affirming the
decisions of defendant Planning Board of the City of Elizabeth
(Board) for construction of apartments located on two separate
lots. In light of the Law Division judge’s thorough and well-
reasoned decisions, and our deferential standard of review, we
affirm.
Defendants Engel Investments, LLC, (Engel Investments) and
Engel Gardens, LLC, (Engel Gardens) submitted two separate
applications to the Board seeking preliminary and final site plan
approval to develop properties located at 650-656 Westfield Avenue
in the City of Elizabeth (Property I) and 618-630 Westfield Avenue
in the City of Elizabeth (Property II). The application for
Property I included several bulk variances. The proposed site
plan for Property II did not require any variances.
Property I and Property II are located in an area governed
by the R-3 multi-family zone under the Land Use Development
Ordinance of the City of Elizabeth (LDO), where multi-story, multi-
family residential development is a permitted use. After
defendants' submissions, the Board deemed the applications
complete and held public hearings on July 10, 2014, for Property
I, and on July 23, 2015, for Property II.
2 A-1853-15T4 I.
At the July 10, 2014 hearing for Property I, the Board heard
testimony from Samuel Engel, the managing member of Engel
Investments. Engel testified that the development of Property I
involved the merger of three parcels, demolition of the existing
structures, and the construction of a multi-story building
containing thirty-two residential units. Engel addressed the
number of proposed available parking spaces and acknowledged the
need to provide new curbs, sidewalks and trees along the frontage
of Property I.
Anthony Kurus, a licensed professional engineer, also
testified. Kurus provided the Board with a detailed review of the
proposed site plan, including the landscaping, storm water
management, and means of access and egress. Kurus testified that
Engel Investments would address and satisfy various conditions
articulated in the June 12, 2014 report by Victor E. Vinegra, the
Board planner.
James R. Guerra, a licensed architect and professional
planner, testified relative to the bulk variances. In its
application, Engel Investments sought four variances from the
requirements of the LDO. First, the LDO required a rear yard
setback of fifty feet; the development proposed a rear yard setback
of fifteen feet. Second, the LDO required a maximum impervious
3 A-1853-15T4 coverage of sixty percent; the development proposed a maximum
impervious coverage of approximately seventy-eight percent.
Third, the LDO required a maximum permitted height in the R-3
multi-family zone of thirty-five feet; the development proposed a
height of approximately thirty-eight feet. Fourth, the LDO
required a minimum of fifty percent of the total open space be
exterior lawn; the development proposed for no lawn.
After Guerra's testimony, plaintiff's counsel made an opening
statement to the Board and cross-examined the witnesses.
Specifically, plaintiff's counsel questioned Engel about the
amount of proposed parking and questioned Guerra about the bulk
variances sought by Engel Investments. After plaintiff's counsel
rested, the Board opened the meeting. Some citizens in attendance
expressed their concerns over the project.
The Board concluded the hearing and briefly discussed the
project on the record. After discussion, the Board voted
unanimously in favor of approval. A resolution memorializing the
vote was subsequently adopted at the Board meeting held on
September 4, 2014.
On October 14, 2014, plaintiff filed an action in lieu of
prerogative writs challenging the Board's approval of the project.
A hearing was conducted before Judge Karen M. Cassidy on November
10, 2015. On December 1, 2015, the judge issued an order upholding
4 A-1853-15T4 the Board's decision. In a comprehensive statement of reasons,
the judge determined there was more than an adequate basis for
each bulk variance, and that the record from the July 10 meeting
supported a finding that the Board's conclusions were not
arbitrary, capricious or unreasonable. Plaintiff filed an appeal
(A-1853-15).
II.
At the July 23, 2015 hearing for Property II, the Board heard
testimony from Engel, Kurus, Guerra, Christine Nazarro Cofone, a
licensed professional planner, and Justin Taylor, a traffic
engineer. Neither plaintiff, nor anyone on his behalf, appeared
at the hearing.
Engel testified that the development involved the
construction of a multi-story building containing thirty
residential units. Engel addressed the number of proposed
available parking spaces and acknowledged the need to provide new
curbs, sidewalks and street trees along the frontage.
Kurus provided the Board with a detailed review of the
proposed site plan, explaining the landscaping, storm water
management, and access and egress. Kurus further testified that
Engel Gardens would address and satisfy various conditions
articulated in the July 15, 2015 report by Vinegra.
5 A-1853-15T4 Guerra testified regarding the proposed building's
configuration, the location and number of units, and the Americans
with Disabilities Act (ADA) accessible units on the ground floor.
Guerra noted that the proposed building did not require any bulk
variances or design waivers.
Cofone testified that the proposed project satisfied a number
of purposes under the Municipal Land Use Law (MLUL), N.J.S.A.
40:55D-1 to -112. According to Cofone, the project provided
adequate light, air, and open space, and significantly reduced the
property's impervious coverage.
Taylor, who prepared the Traffic Impact Assessment (TIA)
submitted by Engel Gardens, testified that the assessment analyzed
the difference in traffic between the property's current use and
the proposed use. Based upon the TIA, it was determined there
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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-1853-15T4 A-4780-15T4
JULIO C. NUNEZ,
Plaintiff-Appellant,
v.
ENGEL INVESTMENTS, LLC, ENGEL GARDENS, LLC, and PLANNING BOARD OF THE CITY OF ELIZABETH, NEW JERSEY,
Defendants-Respondents. _______________________________
Argued April 5, 2017 – Decided June 6, 2017
Before Judges Manahan and Lisa.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket Nos. L- 3712-14 and L-3633-15.
Fred R. Gruen argued the cause for appellant (Gruen & Goldstein, attorneys; Mr. Gruen, on the briefs).
Scott E. Becker argued the cause for respondent Engel Investments, LLC.
Patrick J. McNamara argued the cause for respondent Planning Board of the City of Elizabeth, New Jersey (Scarinci & Hollenbeck, LLC, attorneys; Mr. McNamara, on the briefs).
PER CURIAM In these consolidated appeals, plaintiff Julio C. Nunez
appeals from orders entered by the Law Division affirming the
decisions of defendant Planning Board of the City of Elizabeth
(Board) for construction of apartments located on two separate
lots. In light of the Law Division judge’s thorough and well-
reasoned decisions, and our deferential standard of review, we
affirm.
Defendants Engel Investments, LLC, (Engel Investments) and
Engel Gardens, LLC, (Engel Gardens) submitted two separate
applications to the Board seeking preliminary and final site plan
approval to develop properties located at 650-656 Westfield Avenue
in the City of Elizabeth (Property I) and 618-630 Westfield Avenue
in the City of Elizabeth (Property II). The application for
Property I included several bulk variances. The proposed site
plan for Property II did not require any variances.
Property I and Property II are located in an area governed
by the R-3 multi-family zone under the Land Use Development
Ordinance of the City of Elizabeth (LDO), where multi-story, multi-
family residential development is a permitted use. After
defendants' submissions, the Board deemed the applications
complete and held public hearings on July 10, 2014, for Property
I, and on July 23, 2015, for Property II.
2 A-1853-15T4 I.
At the July 10, 2014 hearing for Property I, the Board heard
testimony from Samuel Engel, the managing member of Engel
Investments. Engel testified that the development of Property I
involved the merger of three parcels, demolition of the existing
structures, and the construction of a multi-story building
containing thirty-two residential units. Engel addressed the
number of proposed available parking spaces and acknowledged the
need to provide new curbs, sidewalks and trees along the frontage
of Property I.
Anthony Kurus, a licensed professional engineer, also
testified. Kurus provided the Board with a detailed review of the
proposed site plan, including the landscaping, storm water
management, and means of access and egress. Kurus testified that
Engel Investments would address and satisfy various conditions
articulated in the June 12, 2014 report by Victor E. Vinegra, the
Board planner.
James R. Guerra, a licensed architect and professional
planner, testified relative to the bulk variances. In its
application, Engel Investments sought four variances from the
requirements of the LDO. First, the LDO required a rear yard
setback of fifty feet; the development proposed a rear yard setback
of fifteen feet. Second, the LDO required a maximum impervious
3 A-1853-15T4 coverage of sixty percent; the development proposed a maximum
impervious coverage of approximately seventy-eight percent.
Third, the LDO required a maximum permitted height in the R-3
multi-family zone of thirty-five feet; the development proposed a
height of approximately thirty-eight feet. Fourth, the LDO
required a minimum of fifty percent of the total open space be
exterior lawn; the development proposed for no lawn.
After Guerra's testimony, plaintiff's counsel made an opening
statement to the Board and cross-examined the witnesses.
Specifically, plaintiff's counsel questioned Engel about the
amount of proposed parking and questioned Guerra about the bulk
variances sought by Engel Investments. After plaintiff's counsel
rested, the Board opened the meeting. Some citizens in attendance
expressed their concerns over the project.
The Board concluded the hearing and briefly discussed the
project on the record. After discussion, the Board voted
unanimously in favor of approval. A resolution memorializing the
vote was subsequently adopted at the Board meeting held on
September 4, 2014.
On October 14, 2014, plaintiff filed an action in lieu of
prerogative writs challenging the Board's approval of the project.
A hearing was conducted before Judge Karen M. Cassidy on November
10, 2015. On December 1, 2015, the judge issued an order upholding
4 A-1853-15T4 the Board's decision. In a comprehensive statement of reasons,
the judge determined there was more than an adequate basis for
each bulk variance, and that the record from the July 10 meeting
supported a finding that the Board's conclusions were not
arbitrary, capricious or unreasonable. Plaintiff filed an appeal
(A-1853-15).
II.
At the July 23, 2015 hearing for Property II, the Board heard
testimony from Engel, Kurus, Guerra, Christine Nazarro Cofone, a
licensed professional planner, and Justin Taylor, a traffic
engineer. Neither plaintiff, nor anyone on his behalf, appeared
at the hearing.
Engel testified that the development involved the
construction of a multi-story building containing thirty
residential units. Engel addressed the number of proposed
available parking spaces and acknowledged the need to provide new
curbs, sidewalks and street trees along the frontage.
Kurus provided the Board with a detailed review of the
proposed site plan, explaining the landscaping, storm water
management, and access and egress. Kurus further testified that
Engel Gardens would address and satisfy various conditions
articulated in the July 15, 2015 report by Vinegra.
5 A-1853-15T4 Guerra testified regarding the proposed building's
configuration, the location and number of units, and the Americans
with Disabilities Act (ADA) accessible units on the ground floor.
Guerra noted that the proposed building did not require any bulk
variances or design waivers.
Cofone testified that the proposed project satisfied a number
of purposes under the Municipal Land Use Law (MLUL), N.J.S.A.
40:55D-1 to -112. According to Cofone, the project provided
adequate light, air, and open space, and significantly reduced the
property's impervious coverage.
Taylor, who prepared the Traffic Impact Assessment (TIA)
submitted by Engel Gardens, testified that the assessment analyzed
the difference in traffic between the property's current use and
the proposed use. Based upon the TIA, it was determined there
would be no detrimental impact from the proposed development to
the surrounding roadways, and that access to and from the proposed
project would operate in a safe and efficient manner.
At the conclusion of the testimony, and after consideration
of the TIA, the Board voted unanimously in favor of approval. A
resolution memorializing the vote was subsequently adopted at the
Board meeting held on September 3, 2015.
On October 22, 2015, plaintiff filed an action in lieu of
prerogative writs challenging the Board's approval of the project
6 A-1853-15T4 at Property II. A hearing was conducted on June 16, 2016, before
Judge Cassidy. At the conclusion of the hearing, the judge entered
an order affirming the Board’s decision. In an oral decision, the
judge held that the Board's conclusions were not arbitrary,
capricious or unreasonable. The judge held the Board properly
determined the project did not require variances, and was in
compliance with all applicable codes and regulations. Plaintiff
filed an appeal (A-4780-15).
Plaintiff raises the following points in appeal A-1853-15:
POINT I
THE TRIAL COURT ERRED IN UPHOLDING DEFENDANT PLANNING BOARD'S VARIANCE GRANTS.
POINT II
THE TRIAL COURT ERRED IN UPHOLDING THE PLANNING BOARD'S GRANT OF SITE PLAN APPROVAL, AS APPLICANT FAILED TO REQUEST NECESSARY VARIANCES.
Plaintiff adds the following points in a reply brief in appeal
A-1853-15:
THE SHORTENED REAR YARD VARIANCE WAS IMPROPERLY GRANTED.
THE IMPERVIOUS COVERAGE AND OPEN SPACE VARIANCES WERE IMPROPERLY GRANTED.
7 A-1853-15T4 POINT III
THE BOARD'S RESOLUTION APPROVING THE PROPOSED PARKING LAYOUT VIOLATES THE RESIDENTIAL SITE IMPROVEMENT STANDARDS, N.J.A.C. 5:21-4.16(B).
POINT IV
THE BOARD'S RESOLUTION APPROVING A FOUR[- ]STORY BUILDING IN THREE[-]STORY R-3 MULTI[- ]FAMILY ZONE WITHOUT A VARIANCE VIOLATES THE ELIZABETH ZONING ORDINANCE: THE LOFTS ON THE THIRD FLOOR CONSTITUTE A FOURTH STORY SINCE THEY ARE NOT "MEZZANINES."
POINT V
THE BOARD'S RESOLUTION APPROVING AN ELEVATOR BUILDING IN THE R-3 MULTI-FAMILY ZONE WITHOUT A USE VARIANCE VIOLATES THE ELIZABETH ZONING ORDINANCE.
Plaintiff raises the following point in appeal A-4780-15:
THE TRIAL COURT ERRED IN UPHOLDING THE PLANNING BOARD'S GRANT OF SITE PLAN APPROVAL, AS APPLICANT FAILED TO REQUEST NECESSARY VARIANCES[].
"[W]hen reviewing the decision of a trial court that has
reviewed municipal action, we are bound by the same standards as
was the trial court." Fallone Props., LLC v. Bethlehem Twp.
Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004) (citations
omitted). "[W]hen 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
8 A-1853-15T4 Hoboken, 214 N.J. 199, 229 (2013). "The questions on appeal are
only whether or not the action of the board was arbitrary,
capricious or patently unreasonable, and whether it acted properly
under the statute, that is, in accordance with the statutory
standard." Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 54-55
(1998) (citation omitted).
The courts "will give substantial deference to findings of
fact, [however,] it is essential that the board's actions be
grounded in evidence in the record." Fallone, supra, 369 N.J.
Super. at 562. Legal determinations are not entitled to
presumption of validity and are subject to de novo review.
Wyzykowski v. Rizas, 132 N.J. 509, 518-20 (1993).
Regarding the proposed project at Property I, the judge
determined the proofs relating to the bulk variances sought by
Engel Investments were in accord with the requirements outlined
by N.J.S.A. 40:55D-70(c)(2). Specifically, the judge found that
Engel Investments demonstrated that the proposed project: (1)
related to a specific piece of property; (2) advanced the purposes
of the MLUL by a deviation from the zoning ordinance requirement;
(3) the variance was without detriment to the public good; (4) the
benefits of the deviation outweighed any detriments; and (5) the
variance did not impair the intent and purpose of the zone plan
or ordinance. See Wilson v. Brick Twp. Zoning Bd. of Adjustment,
9 A-1853-15T4 405 N.J. Super. 189, 198 (App. Div. 2009) (citations omitted).
The judge held the Board properly analyzed and granted each
variance requested by Engel Investments, and thus the Board's
decision to grant the application was not arbitrary, capricious
or unreasonable.
Regarding the proposed project at Property II, the judge
reviewed the evidence and testimony submitted by Engel Gardens
that formed the basis for the Board's determination that no
variances were required. The judge held the Board properly
considered the uncontested expert testimony from Guerra, Kurus,
Cofone, Taylor, and Vinegra. The judge, after an analysis of the
applicable zoning ordinances, concluded the Board's decision to
grant the application was not arbitrary, capricious, or
unreasonable.
Given our highly deferential standard of review, and having
considered Judge Cassidy's thorough and well-reasoned decisions
in light of the record and the controlling decisions of law, we
discern no error.
Affirmed.
10 A-1853-15T4