GEORGE PETERS VS. ZONING BOARD OF ADJUSTMENT, BOROUGH OF FORT LEE, NJ (L-5221-17, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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."
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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.
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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."
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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
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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
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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
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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-
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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
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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
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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.
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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.
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