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

NOT FOR PUBLICATION WITHOUT THE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.
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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.
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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
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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
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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.
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Affirmed.
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