Carol Jacoby v. Zoning Board of Adjustment of The

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0007-13T1
A-0259-13T1
A-0404-13T1
CAROL JACOBY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v.
October 21, 2015
ZONING BOARD OF ADJUSTMENT OF
THE BOROUGH OF ENGLEWOOD CLIFFS APPELLATE DIVISION
and LG ELECTRONICS USA, INC.,
Defendants-Respondents.
_________________________________
MARCIA DAVIS,
Plaintiff-Respondent,
and
NEW JERSEY STATE FEDERATION OF
WOMEN'S CLUBS, SCENIC HUDSON,
INC., MARGO MOSS and JAKOB
FRANKE,
Plaintiffs-Appellants,
v.
BOARD OF ADJUSTMENT OF THE
BOROUGH OF ENGLEWOOD CLIFFS
and LG ELECTRONICS USA, INC.,
Defendants-Respondents.
__________________________________________________________
CAROL JACOBY,
Plaintiff-Appellant,
v.
ZONING BOARD OF ADJUSTMENT OF
THE BOROUGH OF ENGLEWOOD CLIFFS
and LG ELECTRONICS USA, INC.,
Defendants-Respondents.
_________________________________
MARCIA DAVIS and NEW JERSEY STATE
FEDERATION OF WOMEN'S CLUBS,
SCENIC HUDSON, INC., MARGO MOSS,
and JAKOB FRANKE,
Plaintiffs-Respondents,
v.
BOARD OF ADJUSTMENT OF THE
BOROUGH OF ENGLEWOOD CLIFFS
and LG ELECTRONICS USA, INC.,
Defendants-Respondents.
___________________________________________________________
CAROL JACOBY,
Plaintiff-Respondent,
v.
ZONING BOARD OF ADJUSTMENT OF
THE BOROUGH OF ENGLEWOOD CLIFFS
and LG ELECTRONICS USA, INC.,
Defendants-Respondents.
____________________________________
MARCIA DAVIS,
Plaintiff-Appellant,
and
2 A-0007-13T1
NEW JERSEY STATE FEDERATION
OF WOMEN'S CLUBS, SCENIC
HUDSON, INC., MARGO MOSS
and JAKOB FRANKE,
Plaintiffs,
v.
BOARD OF ADJUSTMENT OF THE
BOROUGH OF ENGLEWOOD CLIFFS
and LG ELECTRONICS USA, INC.,
Defendants-Respondents.
__________________________________
Argued October 5, 2015 – Decided October 21, 2015
Before Judges Fasciale, Nugent and Higbee.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket Nos. L-
2301-12 and L-2373-12.
Louis L. D'Arminio argued the cause for
appellants New Jersey State Federation of
Women's Clubs, Scenic Hudson, Inc., Margo
Moss and Jakob Franke in A-0007-13 and
respondents in A-0259-13 and A-0404-13
(Price, Meese, Shulman & D'Arminio, P.C. and
Law Offices of Angelo C. Morresi, attorneys;
Mr. D'Arminio, Kathryn J. Razin, and Angelo
C. Morresi, on the briefs).
J. Alvaro Alonso argued the cause for
appellant Carol Jacoby in A-0259-13 and
respondent Carol Jacoby in A-0007-13 and A-
0404-13 (Alonso & Navarette, L.L.C.,
attorneys; Mr. Alonso, on the brief).
Michael I. Lubin, argued the cause for
appellant Marcia Davis in A-0404-13 and
respondent Marcia Davis in A-0007-13 and A-
0259-13.
3 A-0007-13T1
Michael B. Kates argued the cause for
respondent Zoning Board of Adjustment of
Englewood Cliffs in A-0007-13, A-0259-13 and
A-0404-13 (Kates, Nussman, Rapone, Ellis &
Farhi, L.L.P., attorneys; Mr. Kates, of
counsel and on the brief).
Nicholas G. Sekas argued the cause for
respondent LG Electronics, USA, Inc. in A-
0007-13, A-0259-13 and A-0404-13 (Sekas Law
Group, L.L.C. and Day Pitney, L.L.P.,
attorneys; Mr. Sekas and Christopher John
Stracco, on the brief).
Julien Neals, Bergen County Counsel, and
Florio & Kenny, L.L.P., attorneys for amicus
curiae County of Bergen, Kathleen Donovan,
as Executive, and Bergen County Board of
Chosen Freeholders in A-0007-13, A-0259-13
and A-0404-13 (James X. Sattely, Melissa
Bristol Paolella, Frank P. Kapusinski and
Edward J. Florio, on the briefs).
Eastern Environmental Law Center, attorneys
for amicus curiae Mayor Paul H. Tomasko,
Mayor Peter Rustin, Mayor Sophie Heymann and
Mayor Paul Hoelscher in A-0007-13, A-0259-
13 and A-0404-13 (Aaron Kleinbaum, on the
brief).
Morningside Heights Legal Services, attorney
for amicus curiae New Jersey Conservation
Foundation, Natural Resources Defense
Council, Coalition to Protect the Palisades
Cliffs, Fort Tryon Trust, National Trust for
Historic Preservation, New Jersey Sierra
Club, New York/New Jersey Baykeeper, New
York – New Jersey Trail Conference,
Palisades Park Conservancy, Preservation
League of New York State and Regional Plan
Association in A-0007-13, A-0259-13 and A-
0404-13 (Susan J. Kraham, Edward Lloyd, Mark
Izeman of the New York bar, admitted pro hac
vice, Albert Butzel of the New York bar,
admitted pro hac vice, and William Cook of
4 A-0007-13T1
the South Carolina bar, admitted pro hac
vice, on the brief).
Bradley M. Campbell L.L.C., attorneys for
amicus curiae New York State Senator Jeffrey
D. Klein, United States Representative
Eliot L. Engel, New York State Senator
Adriano Espaillat, New York State
Assemblyman Jeffrey Dinowitz and New York
City Councilman Andrew Cohen in A-0007-13,
A-0259-13 and A-0404-13 (Mr. Campbell, on
the briefs).
Eric T. Schneiderman, Attorney General of
the State of New York, attorney for amicus
curiae the State of New York in A-0007-13,
A-0259-14 and A-0404-13 (Oren L. Zeve,
Assistant Solicitor General, on the brief).
The opinion of the court was delivered by
FASCIALE, J.A.D.
The New Jersey State Federation of Women's Clubs, Scenic
Hudson Inc., Margo Moss, and Jakob Franke (the intervenors),
Carol Jacoby, and Marcia Davis (Jacoby, Davis, and the
intervenors are collectively referred to as plaintiffs), appeal
from an August 9, 2013 order upholding defendant Board of
Adjustment of the Borough of Englewood Cliffs' (the Board) site
plan approval and grant of height and bulk variances to
defendant LG Electronics USA, Inc. (LG).1 Margo Moss, Jakob
1
We calendared plaintiffs' appeals back-to-back, conducted
oral argument on each appeal simultaneously, and have resolved
them in one opinion due to the substantially overlapping issues
(continued)
5 A-0007-13T1
Franke, Carol Jacoby, and Marcia Davis are residents in the
community.
We granted amici status to numerous objectors to the
granted height variance, including the State of New York; New
York State Senator Jeffrey D. Klein; United States
Representative Eliot L. Engel; New York State Senator Adriano
Espaillat; New York State Assemblyman Jeffrey Dinowitz; New
York City Councilman Andrew Cohen; New Jersey Conservation
Foundation; Natural Resources Defense Council; Coalition to
Protect the Palisades Cliffs; Fort Tryon Trust; National Trust
for Historic Preservation; New Jersey Sierra Club; New York/New
Jersey Baykeeper; New York – New Jersey Trail Conference;
Palisades Park Conservancy; Preservation League of New York
State; Regional Plan Association; Mayor Paul H. Tomasko; Mayor
Peter Rustin; Mayor Sophie Heymann; and Mayor Paul Hoelscher.2
The primary dispute involves the Board's grant of a height
variance allowing LG to construct a 143.8-foot office building
in a business zone where the maximum permitted building height
(continued)
and contentions of the parties. As a result, these back-to-back
appeals are consolidated for the purposes of this opinion.
2
We also granted amici status to the County of Bergen,
Kathleen Donovan, as Executive, and Bergen County Board of
Chosen Freeholders, who supported the height variance.
6 A-0007-13T1
is 35 feet.3 The height of the building authorized by the
variance dramatically affects the view of the historic Palisades
Cliffs, a recognized natural treasure that has been
intentionally preserved for decades. The opponents to the
variance maintain that the building would ruin the natural
beauty of the Palisades Cliffs because it would be visible on
the west side of the Hudson River above the tree line from
multiple vantage points in New York and New Jersey. The
intervenors also challenge the issuance of the bulk variance
reducing the number of required parking spaces.
We hold, where a structure substantially exceeds the local
height restriction, that in determining whether the height of a
building would be "consistent with the surrounding
neighborhood[,]" a zoning board is obligated to consider the
impact that the structure would have on more than the
municipality itself or the immediate vicinity of the structure.
The "special reasons" necessary to establish a height variance
"must be tailored to the purpose for imposing height
restrictions in the zoning ordinance." Here, because the
proposed structure is in close proximity to the historic
3
The Board contends that the appeals are moot because the
Borough of Englewood Cliffs amended the zoning ordinance after
the judge entered the order, purportedly eliminating the need
for a height variance. We need not consider this argument
because the Borough repealed that ordinance in August 2014.
7 A-0007-13T1
Palisades Cliffs and can be seen well beyond the immediate
vicinity or municipality, established principles of zoning law
direct that "surrounding neighborhood" means all reasonable
visual vantage points.
We reverse the order upholding the granted height variance,
and remand to the Board to conduct further proceedings
consistent with this opinion, applying the enhanced standards of
N.J.S.A. 40:55D-70(d)(6), and Grasso v. Borough of Spring Lake
Heights, 375 N.J. Super. 41 (App. Div. 2004). We leave the
details of the remand proceedings to the Board's discretion. We
otherwise affirm the order upholding the bulk variance pursuant
to N.J.S.A. 40:55D-70(c)(2).
I.
LG owns approximately 27 acres of land located at 111
Sylvan Avenue, Englewood Cliffs, otherwise known on a tax map as
Block 207, Lot 6 (the property). The property sits atop the
Palisades Cliffs and is approximately one mile north of the
George Washington Bridge. The landscape is unmarked by man-made
structures above the tree line.
LG planned to use the property as its North American
Headquarters. LG intended to construct an eight-story building
(the main building) divided into sections or wings (the
project). Three proposed structures of the project exceeded
8 A-0007-13T1
Englewood Cliffs' 35-foot maximum height limitation: the height
of the main building would be 143.8 feet; a four-level garage
would reach 48.8 feet; and a building situated between the north
and south wings would be slightly over 35 feet tall. As a
result, LG applied for a height variance.
LG proposed allocating fewer parking spaces for the project
than the 2466 minimum spaces required by ordinance. Pursuant to
LG's proposal, there would be a total of 1421 on-site parking
spaces. Consequently, LG primarily sought a bulk variance to
accommodate its parking plan.
The Board conducted six hearings between May and November
2011. LG produced testimony from two of its vice-presidents; an
architect; a landscape architect; a professional planner; two
professional engineers; and an environmental sustainability
design expert. In opposition to the development, the executive
director of the Palisades Interstate Park Commission (PIPC)
testified that the height of the main building would visually
impact the nearby Palisades Interstate Park (the "Park") and the
overall scenic corridor of the Palisades Parkway. Other
individuals expressed concerns that the project would visually
affect the Palisades Cliffs and the Park's heritage.
9 A-0007-13T1
In February 2013, the Board adopted a resolution
memorializing its six-to-one vote granting site plan approval
and the requested variances. The Board found that
[t]he building height enables substantially
more landscape amenity and buffer features
for nearby residents. The Board finds that
the significant increase in landscape
coverage alone justifies the height variance
required. . . . In addition, the Board
finds that the increased landscaping both
conserves natural resources and prevents
degradation of the environment and are
special reasons for the grant of the height
variance. The Board finds that the purposes
of the Municipal Land Use Law [(MLUL),
N.J.S.A. 40:55D-1 to -129] are advanced by
[the] plan's height as adequate light[,] air
and open space are preserved, and a
desirable visual environment and the public
welfare is promoted.
2. The building will be rated a LEED Gold
building standard,4 the second highest
standard, just under Platinum, for energy
use, recycling, and waste disposal. The
project promotes the [MLUL's] purpose of
promoting utilization of renewable energy
resources.
. . . .
Th[e height] variance . . . is justified in
part, by the extremely large lot size of 27
acres, the large amount of green space being
increased from the present condition, and
the large perimeter setbacks proposed. The
4
A Leadership in Energy & Environmental Design (LEED) building
standard refers to a building certification system whereby a
building is rated based on its environmental impact, according
to a point system. A Gold rating is the second highest to
Platinum.
10 A-0007-13T1
Board specifically finds that the increased
height will create no detriments to the
neighborhood, or to the zone plan. The
increased height permits significant
additional landscaping and green buffers,
which shield the height from residences.
The taller building is set far from
residential lots. The benefits of granting
the height variance outweigh any detriments.
The building will not cast a shadow on
adjacent properties. The Board finds that
the applicant proved that the site can
accommodate the negative effects associated
with taller buildings particularly as the
tall building is situated within a large,
well[-]landscaped lot. The grant of the
variance will not create a substantial
detriment. The Board specifically finds
that the design creates no detriments to the
zone plan and zoning ordinance.
. . . .
13. The site plan fulfills the Master Plan
goals of encouraging large[-]scale executive
office development, reduc[ing] impervious
coverage, and maintain[ing] a large lot
size.
14. The project has no substantial
detriment to the public good and no
substantial impairment to the intent and
purpose of the zone plan. The proposed
number of square feet are significantly less
tha[n] that permitted as of right, therefore
there is no increased intensity of use
proposed.
The Board then concluded that
[LG] has sustained [its] burden of showing
special reasons warranting the grant of the
requested height variances as well as a
variance to permit a parking structure as an
accessory use in the B[-]2 zone. The Board
f[inds] that the height of the building
11 A-0007-13T1
permit[s] [LG] to advance the purposes and
objectives of the Master Plan, by enhancing
landscaping and buffers, preserving
environmentally sensitive areas such as
wetlands and woodlands. Additionally [LG]
also encouraged high[-]quality development
without substantial detriment to public good
and to the Master Plan's goals and
objectives.
20. The Board concludes that [LG] has
sustained the burden of proof for the
various bulk variances required for the
project both by proving hardship under
N.J.S.A. 40:55D-70(c)(1) and by proving that
the proposal is a better zoning alternative
under N.J.S.A. 40:55D-70(c)(2) by enabling
increased green space and LEED Gold
architecture. The provision of the parking
garage will eliminate the existing condition
of an asphalt parking lot covering most of
the lot not covered by the building. The
proposal will provide a 125[-]foot green
setback at the Southern edge of the
property.
21. The Board also finds that [LG] has
demonstrated that the required relief can be
granted without substantial detriment to the
public good and without substantially
impairing the intent and purpose of the Zone
Plan and Zoning Ordinance. The buildings
will be of an attractive and tasteful design
whose appearance will substantially enhance
the surrounding area. The increased green
space on the property will be a benefit for
the neighborhood. The unrefuted expert
testimony of [LG]'s traffic engineer was
that there would be a negligible impact upon
traffic from the project.
In granting the height variance, the Board required LG to lower
the north garage by ten feet eight inches, and provide
structural capacity for an additional level to be added in the
12 A-0007-13T1
future.
Jacoby and Davis filed separate complaints in lieu of
prerogative writs, challenging the Board's site plan approval
and variance grants. The judge consolidated the complaints and
conducted oral argument. The judge then granted the
intervenors' motion allowing their participation, entered the
order under review, and issued a written decision.
On appeal, plaintiffs separately present similar
challenges.5 Generally, plaintiffs argue the Board's grant of
height and bulk variances must be reversed because the Board
misapplied the applicable law and the judge erred in his legal
conclusions. Specifically, plaintiffs maintain LG failed to
satisfy its burden to prove the proposed structure was
"consistent with the surrounding neighborhood" as LG did not
address the impact of the development on the Palisades Cliffs
and region. Plaintiffs ask us to reverse the August 9, 2013
order and set aside the variances.
5
On September 22, 2015, intervenors' counsel, in preparation
for oral argument before us, indicated that LG and intervenors
entered into an agreement as to the height variance. Although
LG apparently will now seek Board approval to construct a
building lower than 143.8 feet tall, the agreed-upon reduction
in height for a new building still exceeds the 35-foot height
restriction. Jacoby and Davis are not part of the agreement
between LG and intervenors. Consequently, we focus solely on
the substantially interrelated contentions raised by the parties
on appeal because resolution of the height dispute remains
incomplete.
13 A-0007-13T1
II.
We begin by recognizing the general standards that inform
our analysis. 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." Fallone Props.,
L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562
(App. Div. 2004). 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. Id. at
560. In other words, a board's actions must be based on
substantial evidence. Cell S. of N.J., Inc. v. Zoning Bd. of
Adjustment, 172 N.J. 75, 89 (2002). However, a local board's
"legal determinations are not entitled to a presumption of
validity and are subject to de novo review." Wilson v. Brick
Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 197 (App.
Div. 2009).
III.
As to the height variance, plaintiffs argue that the Board
(1) misapplied N.J.S.A. 40:55D-70(d)(6) and the standards
expressed in Grasso; and (2) erroneously rejected the contention
that the height variance constituted impermissible rezoning of
the property. We need not address whether the variance
constituted an illegal rezoning of the property because we agree
14 A-0007-13T1
with plaintiffs that the Board did not properly apply (d)(6) and
Grasso.
In 1991, the Legislature placed height variances within the
enhanced standards of N.J.S.A. 40:55D-70(d). Grasso, supra, 375
N.J. Super. at 50. The Legislature believed that a (d) variance
had a "greater potential for disrupting a municipality's zone
plan" because "the resulting structure arguably could be seen as
something out of character with the structures permitted in the
zone . . . ." Id. at 51 (quoting Engleside at W. Condo. Ass'n
v. Land Use Bd., 301 N.J. Super. 628, 639 (Law Div. 1997)).
LG's height variance application pertaining to its proposed
eight-story, 143.8-foot, main building is therefore governed by
N.J.S.A. 40:55D-70(d)(6), which states in pertinent part that
[i]n particular cases for special reasons,
[a board may] grant a variance to allow
departure from regulations . . . to permit:
(1) a use or principal structure in a
district restricted against such use or
principal structure . . . or (6) a height of
a principal structure which exceeds by 10
feet or 10% the maximum height permitted in
the district for a principal structure.
In Grasso, we explained generally that an applicant seeking a
(d)(6) variance must show (1) "special reasons," or the so-
called positive requirement; and (2) that the variance can be
granted "without substantial detriment to the public good and
will not substantially impair the intent and the purpose of the
15 A-0007-13T1
zone plan and zoning ordinance," or the so-called negative
requirement. Grasso, supra, 375 N.J. Super. at 48-49 (quoting
N.J.S.A. 40:55D-70(d)[(6)]).
(i).
As to the positive requirement necessary to justify
granting a height variance under (d)(6), LG may establish
"special reasons" by showing undue hardship or establishing that
the 143.8-foot main building did not offend any purposes of the
height restriction and "would nonetheless be consistent with the
surrounding neighborhood." Id. at 50-53.
To demonstrate undue hardship, and applying the enhanced
standards for (d)(6) variance applications imposed by the
Legislature, LG must show that
the property for which the variance is
sought cannot reasonably accommodate a
structure that conforms to, or only slightly
exceeds, the height permitted by the
ordinance. Stated differently, the
applicant for a (d)(6) variance on grounds
of hardship must show that the height
restriction in effect prohibits utilization
of the property for a conforming structure.
[Id. at 51.]
LG's architect conceded at the hearings that LG did not consider
alternatives to the project configuration. The Board did not
address or find that a conforming building, or one that
"slightly exceeds" the thirty-five-foot height limitation, could
16 A-0007-13T1
not be constructed on the site. The Board could not make such a
finding because a conforming structure existed on the site when
LG had applied for the height variance. Thus, LG failed to
establish undue hardship.
As to whether the main building would be "consistent with
the surrounding neighborhood[,]" we have previously indicated
that the "special reasons" necessary to establishing a height
variance "must be tailored to the purpose for imposing height
restrictions in the zoning ordinance." Id. at 52-53. In all
likelihood, the thirty-five-foot height restriction is designed
to preserve views of the skyline and trees, avoid the appearance
of overcrowding that could result from tall buildings, and
maintain the existing character of the Palisades Cliffs. As we
acknowledged in Grasso, "an excessively tall structure can
aesthetically impair a municipality." Id. at 53. Here, the
eight-story, 143.8-foot building far exceeds the existing 35-
foot limitation; indeed, it is over four times the height
limitation. Such a large-scale deviation will undoubtedly have
a visual effect on the area, especially because of the placement
of the building in close proximity to the Palisades Cliffs, a
historic, renowned natural and dramatic geological feature on
the west side of the Hudson River.
17 A-0007-13T1
We have long recognized that a zoning board's duty to
consider the "surrounding neighborhood" encompasses more than
just consideration of the municipality itself or the immediate
vicinity of the structure. See Urban Farms, Inc. v. Franklin
Lakes, 179 N.J. Super. 203, 213 (App. Div.) (explaining that
"[t]he insularity and parochialism of the Chinese wall theory of
municipal zoning has long since been discredited"), certif.
denied, 87 N.J. 428 (1981). Indeed, it is the intended purpose
of the MLUL "[t]o ensure that the development of individual
municipalities does not conflict with the development and
general welfare of neighboring municipalities, the county and
the State as a whole." N.J.S.A. 40:55D-2(d). The MLUL also
seeks
[t]o provide sufficient space in appropriate
locations for a variety of agricultural,
residential, recreational, commercial and
industrial uses and open space, both public
and private, according to their respective
environmental requirements in order to meet
the needs of all New Jersey citizens[.]
[N.J.S.A. 40:55D-2(g).]
Even prior to the formal adoption of the MLUL, New Jersey
case law established these fundamental principles. As early as
1949, our Supreme Court recognized that
the most appropriate use of any particular
property depends not only on all the
conditions, physical, economic and social,
prevailing within the municipality and its
18 A-0007-13T1
needs, present and reasonably prospective,
but also on the nature of the entire region
in which the municipality is located and the
use to which the land in that region has
been or may be put most advantageously.
[Duffcon Concrete Prods., Inc. v. Cresskill,
1 N.J. 509, 513 (1949) (emphasis added).]
In Quinton v. Edison Park Development Corp., 59 N.J. 571 (1971),
a town granted permission to a company to build at the edge of
town without a "buffer strip," as required by municipal law,
reasoning that the buffer strip was designed to protect its own
residents, not the other town's residents. Id. at 573-74. The
Court rejected this argument and explained that New Jersey
"cases have long recognized the duty of municipal officials to
look beyond municipal lines in the discharge of their zoning
responsibilities." Id. at 578. The Court concluded that the
adjoining town's residents were entitled to the same protection
via the buffer strip as were the town's own residents. Id. at
579-80. See also Cresskill v. Dumont, 15 N.J. 238, 247 (1954)
(rejecting the argument "that the responsibility of a
municipality for zoning halts at the municipal boundary lines
without regard to the effect of its zoning ordinances on
adjoining and nearby land outside the municipality"). "Clearly,
it is a virtual truism of the modern land-use canon that zoning
ordinances must be regionally oriented in their provisions,
19 A-0007-13T1
prohibitions and concerns." Urban Farms, supra, 179 N.J. Super.
at 213.
Finally, although not binding on us, we find persuasive
that in Knight v. Bodkin, 344 N.Y.S.2d 170, 172 (App. Div.
1973), a New York court struck down a zoning board's decision,
in part, because of the effect on surrounding historical and
scenic areas. The court reasoned that allowing a manufacturing
plant to operate in the "historic Hudson Valley" was
impermissible because
Tallman Mountain State Park, one of
[sixteen] parks in the chain which makes up
the magnificent Palisades Interstate Park,
is visited annually by several millions of
persons and, as heretofore mentioned, is
opposite the proposed factory and accessible
from Route 9-W. A chain factory in this
area would surely be incongruous and would,
without question, sharply alter the
character of the area.
[Id. at 176.]
Thus, the MLUL and case law make clear that a zoning board
must consider more than just the effect of the decision on its
own municipality, it must take into account "the entire region."
Here, the Board is obliged to consider the effect of the
proposed height variance on the surrounding municipalities
affected by the decision. In accordance with the reasoning of
Knight, and in furtherance of the zoning board's duty to
consider more than just the municipality itself or the immediate
20 A-0007-13T1
vicinity of the structure, we conclude that the Board
insufficiently considered the main building's effect on the
general landscape, as this case involves a well-known, heavily
visited, and treasured area.
There is ample evidence in the record of the visual impact
that the proposed structure will have on the Palisades Cliffs
and Park. The Director of the PIPC testified at a November 14,
2011 hearing that the height of the building would have a
"visual impact on the [P]ark, the scenic corridor, the scenic
by-way corridor of the parkway, as well as it[s] national
register listing." A member of the public testified regarding
the park's rich history and the commitment by both local and
national politicians to preserve the cliffs, which led to the
creation of the PIPC. Amici have also expressed concern
regarding the park's history and the efforts by citizens of both
New York and New Jersey to maintain the cliffs in the late
1800s, and the resulting commitment by both New York and New
Jersey to preserve the cliffs, leading to a compact between the
two states to maintain the land. The testimony, therefore,
reflected compelling reasons for the Board to more fully
consider the effect that the height variance would have on the
preservation of this historical landmark in the context of a
21 A-0007-13T1
clear policy to maintain and preserve the cliffs, and maintain
them as a scenic resource.
In finding "special reasons," the Board did not
sufficiently determine that the excessive height of the main
building would be compatible with the "surrounding
neighborhood." It did not adequately consider whether the
proposed height variance was tailored to the purpose for which
the height restriction was imposed. It omitted any meaningful
reference to the height of the buildings in the "surrounding
neighborhood." Although the Board referenced buildings near
Saint Peter's College, it did not identify the distance from the
college to the site. The Board also failed to fully address
whether the main building, which was four times the height
limitation imposed by ordinance, would be out of character with
other buildings in the B-2 zone.
Rather, the Board found that advancing the purposes of the
Borough's master plan, by enhancing the landscaping, buffers,
and environmentally sensitive areas, as well as by encouraging
high-quality development, constituted sufficient special reasons
for the height variance. Such a finding, however, did not
satisfy the enhanced positive requirement of (d)(6), as further
explained in Grasso. Therefore, the Board misapplied LG's
obligation to show "special reasons."
22 A-0007-13T1
(ii).
As to the negative criteria, LG must show, pursuant to
(d)(6), that the variance can be granted "without substantial
detriment to the public good and will not substantially impair
the intent and the purpose of the zone plan and zoning
ordinance." That is so because a substantial height variance,
like here, has the potential to disrupt the municipal zone plan.
N. Bergen Action Grp. v. N. Bergen Twp. Planning Bd., 122 N.J.
567, 576 (1991).
The Board noted that the buffer zone on the southerly end
of the property, the elimination of surface parking, and the
increased greenery on the site, mitigate any substantial
detriment to the public good as a result of the height of the
building. The Board's findings solely relating to the aesthetic
benefits of the project do not constitute a full consideration
of LG's application on the zoning scheme. In other words, the
Board failed to adequately consider the negative criteria for a
height variance exceeding four times the permitted height in the
B-2 zone.
The Board made no meaningful findings as to the intent and
purpose of the zone plan and zoning ordinance as required by
Grasso, interpreting N.J.S.A. 40:55D-70(d). The Board was
obliged to consider the reason for the thirty-five-foot height
23 A-0007-13T1
limitation and make specific findings as to how the proposed
variance conforms to the intent and purpose of the zoning plan.
See Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment,
138 N.J. 285, 299 (1994) (explaining that the second prong of
the negative criteria requires the Board "be satisfied that the
grant of the conditional-use variance for the specific project
at the designated site is reconcilable with the municipality's
legislative determination that the condition should be imposed
on all conditional uses in that zoning district").
Our Supreme Court, in Medici v. BPR Co., 107 N.J. 1, 22
(1987), explained that the negative criteria are designed to act
as a safeguard against improper use of variance power. To that
end, mere conclusory recitations of statutory language will be
vulnerable to attack for failing to meet the negative criteria.
Id. at 23. Instead, a board resolution
should contain sufficient findings, based on
the proofs submitted, to satisfy a reviewing
court that the board has analyzed the master
plan and zoning ordinance, and determined
that the governing body's prohibition of the
proposed use is not incompatible with a
grant of the variance.
[Ibid.]
This inquiry is especially important here because LG
proposed that the project be constructed hundreds of feet from
an area abundant with the historic natural resources of the
24 A-0007-13T1
Palisades Cliffs. The Board's resolution does not reference the
Palisades Cliffs or Park or the impact that the main building
would have on them or the zone plan.
The Board heard testimony reflecting serious concerns about
the overall effect LG's project and main building would have on
the sweeping views of the Palisades Cliffs and Park. The record
reflects that the main building could be seen above the tree
line from the George Washington Bridge, points in the Park, and
from points in New York. We conclude that by failing to address
the historic and scenic importance of the unique location of the
proposed project, the Board did not properly determine whether
the main building could be constructed "without substantial
detriment to the public good and will not substantially impair
the intent and the purpose of the zone plan and zoning
ordinance." N.J.S.A. 40:55D-70(d)(6).
IV.
As to the bulk variance, intervenors contend that the Board
incorrectly applied the MLUL. The intervenors argue that LG was
improperly granted a bulk variance for the number of parking
spaces because LG failed to establish that the physical
condition of the property prevented them from conforming to the
bulk requirements. According to the intervenors, the bulk
variance sought was the result of LG's choice of design, and did
25 A-0007-13T1
not advance the purposes of the MLUL sufficiently to outweigh
the detriment to the surrounding area.
They further argue that LG was not entitled to a bulk
variance for the parking spaces under N.J.S.A. 40:55D-70(c)(1)
because LG created the hardship necessitating the variance. We
conclude that LG was entitled to the bulk variance under
N.J.S.A. 40:55D-70(c)(2) because the variance advanced the
purposes of the MLUL and did not act as a detriment to the zone
plan or ordinance.
Regarding bulk variances, N.J.S.A. 40:55D-70(c) states that
the zoning board has the power:
(1) Where: (a) by reason of exceptional
narrowness, shallowness or shape of a
specific piece of property, or (b) by reason
of exceptional topographic conditions or
physical features uniquely affecting a
specific piece of property, or (c) by reason
of an extraordinary and exceptional
situation uniquely affecting a specific
piece of property or the structures lawfully
existing thereon, the strict application of
any regulation . . . would result in
peculiar and exceptional practical
difficulties to, or exceptional and undue
hardship upon, the developer of such
property, grant . . . a variance from such
strict application of such regulation so as
to relieve such difficulties or hardship;
(2) where in an application or appeal
relating to a specific piece of property the
purposes of this act
. . . would be advanced by a deviation from
the zoning ordinance requirements and the
benefits of the deviation would
substantially outweigh any detriment, grant
26 A-0007-13T1
a variance to allow departure from [such]
regulations . . . .
A (c)(1) variance requires a showing of hardship related to
the physical characteristics of the land or the existing
structure. Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 52
(1999). Hardship personal to the applicant, such as financial
hardship, is not sufficient; the hardship must arise out of the
specific condition of the property. Id. at 53-54. The focus of
the inquiry should be on whether the unique property condition
relied on by the applicant constitutes the primary reason why
the proposed structure does not conform to the ordinance. Id.
at 56.
Where the hardship has been created by the applicant, a
(c)(1) variance will normally be denied. Jock v. Zoning Bd. of
Adjustment, 184 N.J. 562, 591 (2005). A (c)(1) variance is not
available to provide relief from a self-created hardship.
Chirichello v. Zoning Bd. of Adjustment, 78 N.J. 544, 553
(1979). Here, the hardship was self-created. LG chose to
reduce the number of parking spaces; the condition of the
property did not demand it. Therefore, we conclude that the
Board erred by finding that LG met the requirements of a (c)(1)
variance.
A (c)(2) variance contemplates that even absent proof of
hardship, a bulk or dimensional variance that advances the
27 A-0007-13T1
purposes of the MLUL may be granted if the benefits of the
deviation outweigh any detriment. Lang, supra, 160 N.J. at 57.
A (c)(2) variance should not be granted when merely the purposes
of the applicant will be advanced; rather, the grant must
actually benefit the community in that it represents a better
zoning alternative for the property. Kaufmann v. Planning Bd.,
110 N.J. 551, 563 (1988). This "broadened" (c) variance affects
"a very narrow band of cases in which the standard would fall
somewhere between the traditional standards of 'hardship,' on
the one hand, and 'special reasons,' on the other." Id. at 560-
61.
To establish a (c)(2) variance, the applicant must show
that the purposes of the MLUL would be advanced, the variance
can be granted without substantial detriment to the public good,
the benefits of the variance will outweigh any detriment, and
that the variance will not substantially impair the intent and
purpose of the zoning plan and ordinance. Wilson v. Brick Twp.
Zoning Bd. of Adjustment, 405 N.J. Super. 189, 198 (App. Div.
2009). It is the applicant's burden to produce this evidence.
Trinity Baptist Church v. Louis Scott Holding Co., 219 N.J.
Super. 490, 500 (App. Div. 1987).
Here, reduction in the number of parking spaces will
promote a desirable visual environment, N.J.S.A. 40:55D-2(i), by
28 A-0007-13T1
eliminating surface asphalt parking, and will prevent a
degradation of the environment, N.J.S.A. 40:55D-2(j), by
eliminating the stormwater runoff to the residential
neighborhood to the south through the planting of an added tree
buffer in place of the asphalt parking. Thus, replacing the
surface parking with parking decks and trees creates an
opportunity for improved zoning and planning that will benefit
the community. Kaufmann, supra, 110 N.J. at 563.
The negative criteria of a (c)(2) variance focus on the
surrounding properties. Id. at 565. A (c)(2) variance will
stand if, after adequate proofs are presented, the Board
concludes that the "harms, if any, are substantially outweighed
by the benefits." Ibid. The Board's grant of the bulk variance
is based on substantial evidence. Elimination of surface
parking will improve the site's drainage, aid in creating a
larger buffer to the south, and provide an aesthetic
improvement. There is no evidence that the reduction in the
number of parking spaces will increase the amount of off-site
parking because many employees will be working off site and
because there is public transportation available. Therefore, LG
satisfied the negative criteria.
In light of our conclusions, we need not reach plaintiffs'
remaining contentions, that the court erred by using an improper
29 A-0007-13T1
standard of review and the Board provided an incorrect address
as to where the initial hearing would occur.
Reversed in part and affirmed in part. We remand for
further proceedings on the height variance consistent with this
opinion and applicable law. If LG's agreement with intervenors
means that LG will now abandon on remand any further efforts to
obtain a height variance for the 143.8-foot main building, then
LG may seek another height variance if it plans to construct a
different building which exceeds the 35-foot height restriction.
We do not retain jurisdiction.
30 A-0007-13T1