LARRY PRICE VS. LARRY D'ARRIGO AND UNION CITY ZONING BOARD OF ADJUSTMENT(L-0422-16, HUDSON COUNTY AND STATEWIDE)
A-5378-15T4
| N.J. Super. Ct. App. Div. | Oct 19, 2017Background
- D'Arrigo’s two-family home on an undersized, nonconforming lot burned in 2014 along with five adjacent homes; he sought to rebuild a two-family dwelling in an R zone.
- Because the lot was undersized, D'Arrigo applied to the Union City Zoning Board of Adjustment for bulk variances under N.J.S.A. 40:55D-70(c).
- Price objected before the Board and later filed a complaint in lieu of prerogative writs, arguing the project required a use (d) variance, that c-variances were improper because the hardship was common to the neighborhood, that D'Arrigo failed to mitigate by purchasing adjacent lots, that the statutory negative criteria were not met, and that a height variance was required.
- The Board granted the c-variances; Price appealed to the Law Division. The trial court affirmed the Board on all grounds except it remanded for consideration of a height variance.
- The Appellate Division affirmed the trial court, concluding the record supported the Board's determinations and endorsing the remand on the height-variance issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a use (d) variance was required | Price: Rebuilding a two-family on an undersized lot constitutes a use change needing a d-variance | D'Arrigo/Board: Use remained the same (two-family); only bulk variances needed | Court: No d-variance required; c-variances appropriate |
| Whether c-variances improper because hardship common in neighborhood | Price: Multiple adjoining undersized lots show problem is general, not particular (Feiler) | D'Arrigo/Board: Project did not change zone density; unlike Feiler, this is not a conversion of whole neighborhood | Court: Distinguished Feiler; c-variances permissible here |
| Whether D'Arrigo failed to mitigate by not acquiring adjacent lots | Price: He should have purchased adjacent land to avoid variances | D'Arrigo: Attempted inquiries showed adjacent properties were not for sale | Court: Rejected Price’s mitigation argument; record shows D'Arrigo tried but could not buy adjacent lots |
| Whether negative criteria (public detriment/impairment) satisfied | Price: Benefits do not substantially outweigh detriment; negative criteria not met | D'Arrigo/Board: Expert testimony that variances further zoning purposes and loss (e.g., a parking space) is outweighed by benefits | Court: Found Board’s negative-criteria finding supported by credible evidence |
| Whether height variance was required and considered | Price: Proposed attic exceeds ordinance threshold for half story; no height variance sought | D'Arrigo/Board: (no record of seeking/granting height variance) | Court: Agreed height variance was needed; remanded to Board for consideration |
Key Cases Cited
- Feiler v. Fort Lee Bd. of Adjustment, 240 N.J. Super. 250 (App. Div. 1990) (variance improper when hardship is common to neighborhood and ordinance application is general)
- Lumund v. Bd. of Adjustment of the Borough of Rutherford, 4 N.J. 577 (1950) (limitations on granting variances where the zoning difficulty is general)
- Price v. Himeji, LLC, 214 N.J. 263 (2013) (MLUL preference for municipal zoning by ordinance over variances; need for negative and special-reason findings)
- Nuckel v. Borough of Little Ferry Planning Bd., 208 N.J. 95 (2011) (delegation of zoning power and statutory limits on conditions)
- Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75 (2002) (deference to zoning board decisions; standard for overturning)
- Kramer v. Bd. of Adjustment, 45 N.J. 268 (1965) (zoning boards’ wide latitude and presumption of validity)