LARRY PRICE VS. LARRY D'ARRIGO AND UNION CITY ZONING BOARD OF ADJUSTMENT(L-0422-16, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 19, 2017
• Docket: A-5378-15T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5378-15T4

LARRY PRICE,

Plaintiff-Appellant,

v.

LARRY D'ARRIGO AND UNION CITY ZONING BOARD OF ADJUSTMENT,

Defendants-Respondents.

_____________________________________

Argued September 26, 2017- Decided October 19, 2017

Before Judges Carroll and Mawla.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L- 0422-16.

Larry Price, appellant, argued the cause pro se.

Respondents Larry D'Arrigo and Union City Zoning Board of Adjustment have not filed briefs.

PER CURIAM

Plaintiff Larry Price appeals from a July 21, 2016 trial

court decision affirming a resolution by the Union City Zoning Board of Adjustment (Board) granting defendant Larry D'Arrigo's

application for variances to re-build his home and remanding an

issue for the Board's consideration. On appeal, plaintiff asserts

the same arguments presented to the trial court. Finding no merit

in plaintiff's claims, we affirm for the reasons set forth in the

trial court decision.

The following facts are taken from the record. D'Arrigo

sought to rebuild his two-family home, which was located on an

undersized non-conforming lot, after a fire destroyed it and five

adjoining homes in 2014. D'Arrigo's property is in an "R zone,"

which permits one, two, and three family dwellings. After his

property burned down, D'Arrigo proposed constructing a two family

dwelling. Because his lot was undersized, D'Arrigo applied for

variances pursuant to N.J.S.A. 40:55D-70(c). Plaintiff challenged

the application, claiming D'Arrigo's property did not conform to

the lot dimension, yard dimension, height, or off-street parking

requirements of the ordinance, and that D'Arrigo did not apply for

a use variance pursuant to N.J.S.A. 40:55D-70(d)(1).

The Board approved D'Arrigo's application, which included

several variances. Plaintiff filed a complaint in lieu of

prerogative writs challenging the Board's determination. On July

21, 2016, the trial court found in favor of the Board on all

issues, but remanded the issue of a height variance.

2 A-5378-15T4 In a written opinion, the trial court addressed all of

plaintiff's claims. At the outset, the trial court rejected

plaintiff's claim that a "d variance" was required because the use

of the property remained the same; D'Arrigo intended to rebuild

his home.

Plaintiff claimed the Board could not grant a "c variance"

because the fire destroyed D'Arrigo's property and all six

structures on the remaining lots, which were also undersized lots.

Plaintiff relied on Feiler v. Fort Lee Bd. of Adjustment, 240 N.J.

Super. 250, 256 (App. Div. 1990), in which we held:

The power to grant bulk and use variances, N.J.S.A. 40:55D-70c. and d.(1), is carefully circumscribed. It is limited to adjusting the zoning impact on specific pieces of property in individual cases for special reasons. "[I]f the difficulty is common to other lands in the neighborhood so that the application of the ordinance is general rather than particular," a variance may not be granted.

[(quoting Lumund v. Bd. of Adjustment of the Borough of Rutherford, 4 N.J. 577, 583 (1950), certif. denied, 127 N.J. 325 (1991)].

The trial court distinguished Feiler, noting the application

there sought to "convert an entire low density two-family zone

into a high density residential tower district." The trial court

noted no factual similarity with the Board's granting of a "c

variance" to D'Arrigo.

3 A-5378-15T4 Plaintiff argued that D'Arrigo did not mitigate the hardship

requiring him to seek a variance by purchasing the surrounding

land to create a conforming lot. The trial court rejected

plaintiff's argument, finding D'Arrigo had tried, but was unable

to purchase the surrounding land. Specifically, D'Arrigo had

inquired whether the adjacent properties were for sale, but they

were not, and plaintiff had not established that an adjacent lot

plaintiff claimed was for sale was listed at the time of the

Board's hearing.

Plaintiff claimed there was no support for a variance pursuant

to N.J.S.A. 40:55D-70(c)(2), because it was not demonstrated that

the benefits of granting the variance substantially outweighed the

detriment as required by the statute. The trial court rejected

this claim, noting the planning expert had testified that the

variance would "not impair the intent and purpose of the zoning

plan, and actually furthers the purpose of establishing stable

[sic] neighborhoods, with stable neighbors."

Plaintiff argued the "negative" criteria had not been

satisfied pursuant to N.J.S.A. 40:55D-70, which provides:

No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair

4 A-5378-15T4 the intent and the purpose of the zone plan and zoning ordinance.

The trial court rejected this argument noting the Board had

considered the fact there would be a loss of a parking space as a

result of granting the variance, but determined it was outweighed

by the benefit of allowing property owners to rebuild their homes.

Plaintiff asserted a height variance was required because the

structure D'Arrigo sought to build included three stories and an

attic. The Union City ordinance permitted structures of three and

one-half stories, but required a height variance for half stories

occupying more than sixty percent of the story beneath it.

D'Arrigo's proposed attic height exceeded seventy four percent of

the floor beneath it. Thus, the trial court concluded a height

variance was "clearly needed yet was not granted nor sought."

Therefore, the matter was remanded to the Board for consideration.

"[M]unicipalities are authorized to impose conditions on the

use of property through zoning by a 'delegation of the police

power' that must 'be exercised in strict conformity with the

delegating enactment -- the [Municipal Land Use Law] (MLUL).'"

Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (quoting Nuckel v.

Borough of Little Ferry Planning Bd., 208 N.J. 95, 101 (2011)).

"The MLUL exhibits a preference for municipal land use planning

by ordinance rather than by variance, which is accomplished through

5 A-5378-15T4 the statute's requirements that use variances be supported by

special reasons, and by proof of the negative criteria." Ibid.

(citations omitted).

Our courts have recognized that "because of their peculiar

knowledge of local conditions," zoning boards "must be allowed

wide latitude in the exercise of delegated discretion." Kramer

v. Bd. of Adjustment, 45 N.J. 268, 296 (1965). A "board's

decisions enjoy a presumption of validity, and a court may not

substitute its judgment for that of the board unless there has

been a clear abuse of discretion." Price, supra, 214 N.J. at 284

(citing Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172

N.J. 75, 81 (2002)). A party challenging that grant or denial of

a variance must "show that the zoning board's decision was

'arbitrary, capricious, or unreasonable.'" Ibid. (quoting Kramer,

supra, 45 N.J. at 296).

We have carefully considered plaintiff's arguments and

thoroughly reviewed the record. We are convinced the trial court's

decision is supported by sufficient credible evidence and

plaintiff's arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).

Therefore, the trial court's determination is affirmed

substantially for the reasons set forth in its July 21, 2016

decision.

6 A-5378-15T4 Affirmed.

7 A-5378-15T4