GEORGE PETERS VS. ZONING BOARD OF ADJUSTMENT, BOROUGH OF FORT LEE, NJ (L-5221-17, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 28, 2020
• Docket: A-3067-18T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3067-18T2

GEORGE PETERS and MARINA PETERS,

Plaintiffs-Appellants,

v.

ZONING BOARD OF ADJUSTMENT, BOROUGH OF FORT LEE, NJ, and V&R DEVELOPERS, INC.,

Defendants-Respondents. _________________________________

Submitted May 4, 2020 – Decided May 28, 2020

Before Judges Sabatino and Geiger.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5221-17.

George Peters and Marina Peters, appellants pro se.

Marcanton D. Macri, attorney for respondent V&R Developers, Inc.

Marinello & Marinello, PC, attorneys for respondent Zoning Board of Adjustment Borough of Fort Lee, NJ, join in on the brief of respondent V&R Developers, Inc. PER CURIAM

Plaintiffs George and Marina Peters, brother and sister, own a home in

Fort Lee next door to a property owned by defendant V&R Developers, Inc.

("V&R"). Appearing pro se, they appeal the trial court's ruling that upheld a

decision by the Borough of Fort Lee Zoning Board of Adjustment ("the Board")

approving V&R's application to replace a preexisting building on the property.

We affirm.

I.

We presume the parties' familiarity with the record and this matter's

procedural history, and do not need to detail it at length here. The following

abbreviated recitation will suffice.

V&R's plan is to construct a larger, two-unit residential dwelling that does

not conform with the "R-2" zone's one-family use restriction. V&R accordingly

requested a use variance under N.J.S.A. 40:55D-70(d)(1). V&R also sought a

floor area ratio ("FAR") variance under N.J.S.A. 40:55D-70(d)(4), and a

building height variance under N.J.S.A. 40:55D-70(d)(6). In addition, V&R

sought assorted "subsection (c)" variances under N.J.S.A. 40:55D-70(c) for "lot

area, lot coverage, front yard, rear yard, and side yard setbacks, and height from

the first floor to grade plane."

A-3067-18T2 2 At a hearing on June 13, 2017, V&R presented to the Board testimony

from three experts to support the requested variances. The Board considered

this expert testimony, written reports by both its own and V&R's experts, maps

and photographs of the neighborhood, reports from municipal departments, and

the testimony of neighbors. Plaintiffs introduced no expert testimony of their

own.

The Board unanimously approved the application, memorialized in a

detailed resolution on June 27, 2017. Among other things, the Board concluded

the project would support the goals of the local zoning ordinance and not

increase the density of the area, increase traffic, or otherwise negatively impact

the surrounding neighborhood.

More specifically, the Board's resolution noted the property contained a

preexisting non-conforming two-family residence 1 in a one-family zone which

also had a "deficient front yard setback." The property is "a slight

1 The Board’s resolution states in two places that the present use of the premises is as a one-family residence. However, these passages appear be clerical or typographical errors since the Borough tax and fire department records and the testimony of a neighbor show that the premises was being used as a two-family dwelling. Indeed, the first paragraph of the resolution recites that this is a "preexisting non-conforming two-family home." As we note, infra, we reject plaintiffs’ argument that alleged flaws in the resolution require the approval to be set aside. A-3067-18T2 3 parallelogram, in that the front and rear lot lines are parallel but not at right

angles to the side lot lines." The entire property is built on a sloping hill.

The Board recognized the surrounding neighborhood "within 200 feet of

the property . . . contain[s] a mix of one and two-family dwellings." It noted

there was a "high-rise residential development one block east" and several three-

family dwellings nearby.

The Board accepted the expert testimony of V&R's planner that there were

"special reasons" to grant the use variance. In this regard, the Board noted "the

uniqueness of the topography and location of this lot" in relation to the

surrounding neighborhood. The Board also credited the testimony of V&R's

architect concerning the property's topography and "difficult" corner location.

The Board found the purposes of the Master Plan and Zoning Ordinance

were met, because the development would replace "older dilapidated housing

stock" while still maintaining the residential character of the neighborhood.

Having considered these factors, the Board concluded that the use

variances could "be granted without any negative effect upon the public good

and without substantial impairment to the intent and purpose of the Zoning

plan."

A-3067-18T2 4 Additionally, the Board approved the subsection (d)(4) and (d)(6)

variances for FAR and height, finding they would not produce a negative effect

on surrounding residences. The Board also granted the subsection (c) variances.

Dissatisfied with the Board's decision, plaintiffs filed the present action

in the Law Division seeking relief in lieu of prerogative writs. Plaintiffs argued

to the trial court the Board's decision is flawed and not supported by adequate

reasons and evidence from the hearing.

Following oral argument, the trial court issued a thirty-one-page written

opinion upholding the Board's decision. As part of its analysis, the court found

that V&R had presented adequate "special reasons" to the Board to justify a use

variance under subsection (d)(1). In particular, the Board "appropriately found

that the Property's unique sloping condition and the slightly undersized existing

corner lot size with preexisting non-conforming conditions," were conditions

unique to the site. The court was also satisfied the proposed development would,

in fact, reduce some existing non-conformities by eliminating the detached

garage, adding new drainage to the area, and increasing conforming parking.

As to the other subsection (d) variances, the trial court concluded "the

Board adequately addressed the height variance sought and its impact upon the

surrounding properties," that the Board consulted the architectural plans and was

A-3067-18T2 5 familiar with the proposed building's "relation to the sloping land," and that the

Board adequately considered testimony regarding density issues and the FAR

variance. The court expressly noted in this regard that "[t]he Board did not

receive any contrary expert testimony during the hearing."

This appeal ensued. Plaintiffs principally argue the Board and the trial

court lacked adequate evidence to support the special reasons necessary for a

use variance under subsection (d)(1). In addition, plaintiffs contend the record

likewise does not justify the area, bulk, yard, and other variances that were

approved. They urge that we reverse the trial court and vacate the approvals.

II.

The scope of judicial review in land use cases is limited. It is well

established that "the law presumes that boards of adjustment and municipal

governing bodies will act fairly and with proper motives and for valid reasons

[and] will be set aside only when it is arbitrary, capricious and unreasonable."

Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965); see also Friends

of Peapack-Gladstone; 407 N.J. Super. 404, 424 (App. Div. 2009) (affirming the

"judiciary's limited standard of review of local land use decisions"). Those who

challenge the local board's actions, such as the objectors here, have the burden

of proving the decision is arbitrary, capricious, and unreasonable. See Dunbar

A-3067-18T2 6 Homes, Inc. v. Zoning Bd. of Adjustment of Twp. of Franklin, 233 N.J. 546,

558 (2018).

A reviewing court may not substitute its judgment "for the proper exercise

of the Board's discretion." CBS Outdoor, Inc. v. Borough of Lebanon Planning

Bd./Bd. of Adjustment, 414 N.J. Super. 563, 578 (App. Div. 2010). That said,

a land use board's interpretation of the law is reviewed de novo. Dunbar Homes,

233 N.J. at 559.

Applying these cardinal principles of judicial review here, we reject

plaintiffs' contentions of error. We affirm the trial court's decision upholding

the Board's approval of V&R's application, substantially for the sound reasons

expressed in Judge Gregg A. Padovano's detailed written opinion. We only add

a few comments.

First, we discern no procedural infirmity in how the Board proceeded with

the hearing in this case. The Board fairly considered the lay testimony of both

plaintiffs as well as that of other neighbors who opposed the project. The Board

considered photographs the plaintiffs had taken of the property and the

surrounding area, and their contentions that the project would obstruct lines of

sight at the nearby crosswalk and create unsafe traffic patterns. The Board did

not misapply its authority in declining to consider certain traffic analyses that

A-3067-18T2 7 Mr. Peters, a former Board member, had performed, because he admittedly is

not a qualified expert witness. See N.J.R.E. 701 and 702 (distinguishing

between admissible and inadmissible opinion testimony by experts and non-

experts).

The Board applied its authority under N.J.S.A. 40:55D-10(d) to impose

"reasonable limitations" on the hearing. As the trial court noted, although the

hearing got off to an "acrimonious start" when there was a dispute about the

placement of defendant's expert's exhibits, a review of the whole record did "not

reveal any egregious behavior" of any participants that would ultimately affect

the decision. The Board allowed plaintiffs and any other objectors to ask

questions and present opposing information. In fact, the record shows plaintiffs

questioned V&R's experts extensively and were able to submit their own

evidence into the record. The Board properly limited certain lines of

questioning, rejected expert evidence that was proffered by the lay-witness

plaintiffs, and otherwise appropriately managed the hearings. Plaintiffs'

assertions of procedural unfairness are meritless.

Second, despite plaintiffs' arguments to the contrary, there is ample proof

in the record to support the findings of the Board and the trial court that V&R

had presented adequate special reasons to justify the use variance for a two-

A-3067-18T2 8 family dwelling. As the trial court noted, the Board reasonably found that V&R

had met its heightened burden to obtain such a variance under subsection (d)(1)

and pertinent case law, see Medici v. BPR Co., 107 N.J. 1, 18 (1987), and

appropriately weighed the applicable positive and negative criteria in favor of

the applicant.

The Board had the prerogative to find persuasive and credible the

testimony of V&R's testifying experts, whose qualifications are unrefuted. A

land use board "has the choice of accepting or rejecting the testimony of

witnesses, and where reasonably made, such decision is conclusive on appeal."

Cox & Koenig, New Jersey Zoning & Land Use Administration, § 18-4.2 (2019);

See also Sea Girt, 45 N.J. at 288 (same); Bd. of Educ. of City of Clifton v.

Zoning Bd. of Adjustment of City of Clifton, 409 N.J. Super. 389, 434 (App.

Div. 2009) (same, and citing cases).

As we have already noted, the record includes, among other things,

evidence that: (1) the new development would not increase the residential

density of the area because there was already a non-conforming two-family unit

on the property; (2) the neighborhood already had a mix of one- and two- family

homes, (3) the variances were needed to accommodate the sloped topography

A-3067-18T2 9 and corner layout of the property; and (4) the property could physically

accommodate the variances.

Many of these same rationales were cited approvingly by the Supreme

Court in Price v. Himeji, LLC., 214 N.J. 263, 293 (2013), in which the Court

clarified the standards for subsection (d)(1) use variances and approved a multi-

family residential development. In Price, the Court described the developer's

expert's testimony in detail, and concluded that through this testimony and other

proofs, the developer "amply met its burden of demonstrating this special reason

for the use variance it requested." Ibid.

Several rationales cited approvingly by the Court in Price are pertinent

here. For instance, in Price a proposed multi-family use was not permitted in

the zone; however, the parcel was "across the street" from a zone where the use

was permitted. Id. at 274. Likewise, in the present case the proposed two-family

unit replaces another two-family unit and is closely adjacent to several other

multi-family properties.

Plaintiffs cite Cerdel Constr. Co., Inc. v. East Hanover Tp., 86 N.J. 303,

306 (1981) for the proposition that merely being adjacent to another zone where

a use would be allowed is not sufficient to grant a use variance. However, in

Cerdel the developer sought to build a "professional building" on a plot of land

A-3067-18T2 10 with a pre-existing one-family residence in a one-family zone. Id. at 305.

Although the property abutted a commercial zone, the Supreme Court held this

was insufficient to meet the "special reasons" required for a use ordinance. Id.

at 307. By contrast here, V&R is seeking to replace an existing two-family

nonconforming dwelling with another two-family building, maintaining the

basic character of the property, and has provided numerous other reasons why

the new development is appropriate to this particular property . Cerdel is

inapposite.

We also note that in Price the developer argued that demolishing the

preexisting buildings on the property, which were in need of "substantial

rehabilitation and development" and replacing them with the proposed project,

would improve the surrounding neighborhood. Price, 214 N.J. at 275. Here, the

Board similarly concluded that the current property was dilapidated, and that

replacing it with newer residential housing was consistent with the Fort Lee

Zoning Ordinance and Master Plan.

Other positive elements of the new development here included improving

the drainage on the property, adding sidewalks where none currently existed,

and increasing certain setbacks, which were also tied to the Zoning Ordinance

and Master Plan.

A-3067-18T2 11 For these and many other reasons, we concur with the trial that the Board

had ample grounds in the record to approve the requested (d)(1) use variance.

Similarly, we agree with the trial court that the Board reasonably approved

the other variances that V&R sought. The height variance was supported by

unrefuted expert testimony. The Board duly considered the concerns of

plaintiffs and certain other neighbors that the higher new building would block

light upon their own properties. Nonetheless, considering the overall context of

the neighborhood, the Board had a reasonable basis to approve the height

variance. Likewise, the density and FAR variances have reasonable support in

the record. The same is true of the bulk variance and other relief granted under

subsection (c).

We reject plaintiffs' contention that the Board's resolution was fatally

incomplete. Although some aspects of the resolution could have been more

detailed, or more carefully proofread, we agree with the trial court that the

findings set forth in the resolution passed muster under N.J.S.A. 40:55D-10(g).

The remaining points raised on appeal lack sufficient merit to warrant

discussion. R. 2:11-3(e)(1)(e).

Affirmed.

A-3067-18T2 12