LARRY PRICE VS. OZ HOLDINGS, LLC (L-1377-17, HUDSON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3452-17T2
LARRY PRICE,
Plaintiff-Appellant,
v.
OZ HOLDINGS, LLC and
UNION CITY ZONING BOARD
OF ADJUSTMENT,
Defendants-Respondents.
______________________________
Argued January 23, 2019– Decided May 22, 2019
Before Judges Yannotti and Rothstadt.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-1377-17.
Larry Price, appellant, argued the cause pro se.
Michael S. Goodman argued the cause for respondent OZ
Holdings, LLC (M. Goodman & Associates, PC,
attorneys; Michael S. Goodman, on the brief).
Gregory F. Kotchick argued the cause for respondent
Union City Zoning Board of Adjustment (Durkin &
Durkin, LLC, attorneys; Gregory F. Kotchick, of counsel
and on the brief).
PER CURIAM
Plaintiff Larry Price appeals from the Law Division's February 23, 2018
judgment dismissing his complaint in lieu of prerogative writs, which was entered
after the trial judge found that defendant Union City Zoning Board of Adjustment
(the Board) did not act arbitrarily, capriciously, or unreasonably in granting the
zoning relief sought by defendant OZ Holdings, LLC (OZ). The subject applications
sought simultaneous subdivision and site plan approval for a lot fronting two
perpendicular streets, one in a commercial zone and the other in a residential zone,
and then variances for the newly-created lot to allow construction upon it of a three-
family home.
On appeal, among other arguments, plaintiff contends that the trial judge's
decision should be remanded under Rule 1:7-4 because he did not address the critical
issue of whether the hardship relied upon by the Board in granting OZ relief was
self-imposed by the subdivision, thereby warranting a reversal of the Board's
determination. Defendants urge that the trial judge's decision was correct, but if it
was deficient, we should exercise our original jurisdiction to correct any
deficiencies. For the reasons that follow, we vacate the judgment and remand for
further findings.
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The subdivision approval that the Board granted OZ created two lots from one
that was already improved by a commercial building situated on Bergenline Avenue
in Union City. The one parcel had been two lots in the past but merged when their
ownership became unified many years earlier. Although one parcel, the
municipality historically treated the property for tax purposes as two lots,
designating them as Lots 45 and 46 in Block 254 on the municipal tax map. The
entire parcel was located within the municipality's Commercial Neighborhood (C-
N) district, in which residential structures are not permitted.
The subdivision separated the one parcel into Lot 46 fronting Bergenline
Avenue, commonly known as 4313-4315 Bergenline Avenue, and Lot 45, the new
lot, fronting Lincoln Street and designated as 506 Lincoln Street. Lincoln Street is
primarily residential in character and contains several three-family homes.
Properties that front Lincoln Street are located in the city's residential (R-1) zone.
The Board approved OZ's subdivision and variance applications at hearings
conducted on the same day. OZ's application sought variances from the
municipality's Land Use Ordinance that required lots in the C-N zone to be 2500
square feet, one hundred feet in depth, and to have a twenty-foot rear setback and
building coverage not to exceed eighty percent. Variances were required for Lot 45
because it was only seventy-two feet deep, contained 1875 square feet, violated the
rear setback requirements, and because the proposed home would cover one hundred
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percent of the lot. Accordingly, OZ sought relief from the minimum lot area,
minimum lot depth, and minimum rear yard requirements.
At the hearing, OZ's counsel explained that the variances OZ sought to
construct the three-family home had been approved by the Planning Board in 2007,
but at that time, OZ failed to request subdivision approval. An architect, Orestes
Valella, testified as to OZ's proposed building plan, including its design and
dimensions. Valella noted that the only changes that had been made to the plans that
were approved in 2007 related to the side yard dimensions, and that OZ intended to
meet the conditions imposed on them at the time of that approval.
Richard Schommer, a licensed professional planner, also testified for OZ.
Schommer explained the history of the subdivided lot and that commercial use on
Lot 45 would be inappropriate because it fronts a residential street in a residential
zone, with similar lots. He stated that there would be no negative impact caused by
the variance because the construction of a three-family residence would be
consistent with the character of the neighborhood. Regarding the bulk variances,
Schommer stated that the lot sizes along Lincoln Street are uniform and that the
proposed structure on Lot 45 would be consistent with other properties on the street.
Significantly, Schommer explained that Lot 45's dimensions created a
hardship and the application dealt "with certain limitations and hardships with
respect to the dimensions of the property, that [OZ] can't overcome [and] are not
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created by the applicant." Later during questioning by plaintiff, Schommer
addressed the question of whether the hardship he referred to was "self-created,"
without addressing whether the subdivision itself created the hardship. He stated the
following:
I think because if you look at the dimensions of the total
property, in fact, it did exist as two lots previously.
They . . . were merged. If you look at the survey, it's
actually identified as two separate tracts, with two separate
lot numbers, and two different . . . tracts. That's how it . . .
did exist at one point in time. I think that's the appropriate
configuration for this property. Being L shaped is unusual.
You don't see that in the neighborhood. If you look at
other properties, they're all rectangular. Subdividing it in
the manner proposed is consistent with the other lots along
Lincoln Street. It's consistent with other properties
along . . . Bergenline. So, I think it actually makes the
properties more consistent with the neighborhood, albeit
we do need relief because the dimensions of the property
don't allow us to have a fully conforming . . . lot.
On February 16, 2017, the Board issued a resolution granting the subdivision
approval OZ sought, based on its consideration of Valella's and Schommer's
testimonies and its findings that there were no negative criteria associated with the
project and the subdivision would not conflict with the character of the neighborhood
because the other lots fronting Lincoln Street were similar in size. The Board stated
that "special reasons" existed for the requested relief; that the relief could be granted
without substantial detriment to the public good and without substantially impairing
the intent and purpose of the zoning plan; and that the facts, testimony, and exhibits
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reviewed were in accordance with the requirements of the Municipal Land Use Law
(MLUL), N.J.S.A. 40:55D-1 to -163.
On that same day, the Board issued a second resolution granting the site plan
and variance approvals OZ sought. The Board again cited Valella's unrefuted
testimony regarding the site plans and found that no negative criteria were associated
with the project; the proposed use would be more conforming with the character of
the neighborhood; and that OZ was modifying its previously-approved plans to
accommodate larger side yards for the westerly neighbor and the egress to the store
on the adjacent property. Also, the Board again stated that "special reasons" existed
for the requested relief, that such relief could be granted without substantial
detriment to the public good and without substantially impairing the intent and
purpose of the zoning plan, and that the application satisfied the requirements of the
MLUL. Notably, in neither resolution did the Board make any findings as to whether
OZ created the hardship it relied upon in support of its application.
On April 4, 2017, plaintiff filed a four-count complaint in lieu of prerogative
writs, seeking to set aside the Board's determination. Plaintiff contended in his
complaint that the Board's approval of OZ's applications was overall arbitrary,
capricious, or unreasonable. Specifically, in count one, plaintiff alleged that the
Board's approval of "[t]he subdivision create[d] an undersized [new] lot and
render[ed] the existing commercial site nonconforming," which was not permissible.
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In the second count, he alleged that because "[t]he resulting [new] lot is both
undersized and lacks the required lot length [its] development require[d] c(1)[1]
hardship variances . . . [b]ut the hardship [was] self-created," warranting the denial
of the application for development as a matter of law. In the third count, the
complaint alleged that the Board's approval of the required "(d)(1)"2 use variance
was improper because OZ failed to establish "special reasons" and the Board failed
to require OZ to demonstrate "an enhanced quality of proof and [make] clear and
specific findings to reconcile the proposed use variance with [the] zoning ordinance's
omission of the use from those permitted."
At trial, plaintiff argued that the hardship upon which the Board relied was
self-created and granting subdivision approval resulted in making Lot 46 a
nonconforming lot. Defendants argued that the lots were originally merged in error
and that Lot 45 was intended to be a residential property and should have been placed
in the R-1 rather than C-N zone. Defendants also explained that Lot 45 could not be
developed for commercial purposes because it fronts a residential street. OZ also
contended that it demonstrated all of the required proofs through Schommer's
testimony. The parties also argued the applicability of various holdings to the issues
1
N.J.S.A. 40:55D-70(c)(1)
2
N.J.S.A. 40:55D-70(d)(1)
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before the court, including the Supreme Court's decision in Price v. Himeji, 214 N.J.
263 (2013).
The trial judge issued a six-page written decision on January 19, 2018
explaining his fact findings and conclusions of law in support of his dismissal of
plaintiff's complaint with prejudice. After giving a brief recitation of OZ's
application, the Board's approval, and the trial court's standard of review, the judge
summarized the parties' arguments. In that summary, the judge observed that the
parties agreed that under the local zoning ordinances, Lot 45 was nonconforming.
He explained OZ maintained that "the newly created lot should have been in the R
Zone (residential) and not in the CN Zone [and] there are mitigating factors to offset
any violations of the rear yard setbacks [for the new lot]." Turning to plaintiff's
allegation that any hardship was self-created, the judge stated the following:
Plaintiff argues the hardship[s for] which O[Z]
seeks the variances for this property are self-created and
therefore, under the case law, are not entitled to relief.
Plaintiff cites to [Ten Stary Dom P'ship v. Mauro, 216 N.J.
16 (2013)].
OZ, . . . does not directly address the issue of a self-
created hardship. The [c]ourt can infer from the record
and the submissions, that O[Z] argues there was not self-
created-hardship, as a portion of the property did not
belong in the CN Zone.
The judge also described plaintiff's final contention about "O[Z] fail[ing] to
put forth any positive or negative criteria proofs that would allow for granting of the
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within application," and OZ's response to that argument. The judge then stated the
issues he was going to address in the remaining approximately one-page of his
decision would be "[f]irst, was there enough evidence for [the Board] to grant this
application? Second, did [the Board] act in an arbitrary and capricious or
unreasonable manner?"
Without specifically identifying any of the evidence testified to by Schommer
and considered by the Board, or addressing plaintiff's contention that the hardship
OZ relied upon was self-created, the judge explained his findings and conclusions.
He stated the following:
The [c]ourt is convinced there was enough evidence
before [the Board] for [it] to grant O[Z]'s application. . . .
Schommer submitted testimony establishing the standard
and the evidence for [the Board] to grant the bulk variance
pursuant to N.J.S.A. 40:55D-70(c)(1). In . . . Schommer's
testimony, he opined there was no negative impact to the
community, the property on [the new lot] was not suited
for the particular zone as [the s]treet is a predominantly
residential street and the granting of this application would
not be inconsistent with the purpose of the CN Zone. [He]
also submitted other testimonial evidence . . . before [the
Board], which does not need mentioning here.
The [c]ourt finds there was enough evidence before
[the Board] for the granting of this application. . . .
Consequently, [the Board] had enough evidence
and determined that evidence was credible, the [c]ourt will
not set aside [the Board's] determinations because it would
substitute its judgment for a local board that is familiar
with the community in which [it] serve[s].
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The judge concluded by finding that the Board's decision was not arbitrary,
capricious, or unreasonable. This appeal followed.
"When reviewing a trial court's decision regarding the validity of a local
board's determination, 'we are bound by the same standards as was the trial court.'"
Jacoby v. Zoning Bd. of Adjustment of Borough of Englewood Cliffs, 442 N.J.
Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., LLC v. Bethlehem Twp.
Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)). A court "may not
substitute its judgment for that of the board unless there has been a clear abuse of
discretion." Himeji, 214 N.J. at 284. We "give deference to the actions and factual
findings of local boards and may not disturb such findings unless they were arbitrary,
capricious, or unreasonable." Jacoby, 442 N.J. at 462. A municipal entity's
"decision is 'invested with a presumption of validity,'" 62-64 Main St., LLC v. Mayor
of City of Hackensack, 221 N.J. 129, 157 (2015) (quoting Levin v. Twp. Comm. of
Bridgewater, 57 N.J. 506, 537 (1971)), and "[t]he challenger of municipal action
bears the 'heavy burden' of overcoming this presumption . . . ." Vineland Constr.
Co. v. Twp. of Pennsauken, 395 N.J. Super. 230, 256 (App. Div. 2007) (quoting
Bryant v. City of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998)). The
actions of a zoning board must be based on "substantial evidence." Ibid. As long as
the board's actions are "supported by substantial evidence in the record, [we are]
bound to affirm that determination." 62-64 Main St., 221 N.J. at 157.
10 A-3452-17T2
We turn first to the trial judge's written decision. We agree with plaintiff that
the trial judge's findings and analysis of the applicable provisions of the MLUL as
they related to the Board's decision were inadequate. Other than vague references
to the portions of Schommer's general testimony that the trial judge found to be
"enough evidence" and "worth mentioning," the judge's terse decision did not satisfy
Rule 1:7-4's requirement for a clear articulation of a judge's findings of fact and
conclusions of law.
The Rule requires that a judge "by an opinion or memorandum decision, either
written or oral, find the facts and state its conclusions of law thereon in all actions
tried without a jury . . . ." R. 1:7-4. "When a trial court issues reasons for its
decision, it 'must state clearly [its] factual findings and correlate them with relevant
legal conclusions, so that parties and the appellate courts [are] informed of the
rationale underlying th[ose] conclusion[s].'" Avelino-Catabran v. Catabran, 445 N.J.
Super. 574, 594 (App. Div. 2016) (alterations in original) (quoting Monte v. Monte,
212 N.J. Super. 557, 565 (App. Div. 1986)). "[A]n articulation of reasons is essential
to the fair resolution of a case." O'Brien v. O'Brien, 259 N.J. Super. 402, 407 (App.
Div. 1992). "Naked conclusions do not satisfy the purposes of R[ule] 1:7-4." Curtis
v. Finneran, 83 N.J. 563, 570 (1980). Accord Gnall v. Gnall, 222 N.J. 414, 428
(2015). A judge "does not discharge [his] function simply by recounting the parties'
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conflicting assertions and then stating a legal conclusion . . . " Avelino-Catabran,
445 N.J. Super. at 595.
When a judge does not properly state his or her findings and conclusions, a
reviewing court does not know whether the judge's decision is based on the facts and
law or is the product of arbitrary action resting on an impermissible basis. See
Monte, 212 N.J. Super. at 565. "Meaningful appellate review is inhibited unless
the judge sets forth the reasons for his or her opinion." Giarusso v. Giarusso,
455 N.J. Super. 42, 53-54 (App. Div. 2018) (quoting Strahan v. Strahan, 402
N.J. Super. 298, 310 (App. Div. 2008)). Failure to do so therefore "constitutes a
disservice to the litigants, the attorneys and the appellate court." Ricci v. Ricci, 448
N.J. Super. 546, 575 (App. Div. 2017) (quoting Curtis, 83 N.J. at 569-70).
Not only did the trial judge here not provide sufficient reasoning for his
decision as to the matters he addressed, he never addressed issues raised by plaintiff's
complaint. For example, he did not address whether the hardship OZ relied upon
was self-imposed, which if true, could preclude any entitlement to a variance under
N.J.S.A. 40:55D-70(c)(1). See Ketcherick v. Borough of Mountain Lakes Bd. of
Adjustment, 256 N.J. Super. 647, 653-56 (App. Div. 1992).
It is beyond cavil that a "(c)(1) variance requires a showing of hardship related
to the physical characteristics of the land or the existing structure." Jacoby, 442 N.J.
Super. at 470. The hardship "must arise out of the specific condition of the property."
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Ibid. In determining whether a property owner is entitled to a variance under
N.J.S.A. 40:55D-70(c)(1), "[i]t is appropriate to consider first the origin of the
existing situation. If the property owner or his predecessors in title created the
nonconforming condition, then the hardship may be deemed to be self-imposed."
Commons v. Westwood Zoning Bd. of Adjustment, 81 N.J. 597, 606 (1980); accord
Jock v. Zoning Bd. of Adjustment of Twp. of Wall, 184 N.J. 562, 590-91 (2005).
See also Branagan v. Schettino, 100 N.J. Super. 580, 587-88 (App. Div. 1968);
George F. Barnes Land Corp. v. Bd. of Adjustment of Twp. of Wyckoff, 174 N.J.
Super. 301, 303-04 (App. Div. 1980) (addressing self-imposed hardship created by
owner's subdivision). A self-imposed hardship may warrant the denial of the
application. Jacoby, 442 N.J. Super. at 470 (citing Jock, 184 N.J. at 591). The
applicant has the burden of establishing that the hardship was not self-created.
Commons, 81 N.J. at 607.
Our review of the record indicates that the Board never addressed the issue of
self-created hardship. As the trial judge observed, OZ never responded to plaintiff's
argument that the subdivision created a self-imposed hardship. And, other than
identifying the contention, the trial judge never addressed the issue. The Board, in
failing to address the issue, ignored its obligation to make specific findings of fact
and conclusions of law when it grants a variance. See Medici v. BPR Co., 107 N.J.
1, 23 (1987); Smith v. Fair Haven Zoning Bd. of Adjustment, 335 N.J. Super. 111,
13 A-3452-17T2
123 (App. Div. 2000). And, by also remaining silent about the claim in his decision,
the judge did not satisfy his obligation under Rule 1:7-4.
The judge similarly did not make any mention of plaintiff's contentions about
OZ failing to meet the requirements for a (d)(1) use variance. See N.J.S.A. 40:55D-
70(d)(1); see also Himeji, 214 N.J. at 297-98; Medici, 107 N.J. at 4; Scholastic Bus
Co. v. Zoning Bd. of Fair Lawn, 326 N.J. Super. 49, 56 (App. Div. 1999). The grant
of a use variance requires "detailed factual findings" by the Board, which a trial
judge must consider in determining if the variance was properly granted. Himeji,
214 N.J. at 288. No such analysis occurred here. In fact, in his legal conclusions,
other than a passing reference to one section of the MLUL, the judge did not discuss
the applicability of any other statutes or case law, including those argued by the
parties.
Under these circumstances, we are constrained to vacate the trial judge's
judgment and remand for reconsideration and new findings of fact and conclusions
of law. If the trial judge determines upon further reflection that the Board's findings
were deficient, a remand to the Board is a possible solution.
We also are convinced that the trial court should in the first instance make the
required findings of fact and conclusions of law. This is not one of those rare cases
in which we should exercise our original jurisdiction under Rule 2:10-5. Tomaino
v. Burman, 364 N.J. Super. 224, 234-35 (App. Div. 2003)) (stating our "original
14 A-3452-17T2
factfinding authority must be exercised only with great frugality and in none but a
clear case free of doubt").
Judgment vacated. The matter is remanded to the trial judge for further
proceedings consistent with our opinion. We do not retain jurisdiction.
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