NJ Appeals Court Vacates Approval of Application Amended by Zoning Board

In 440 Company-Carriage House, LP v. Zoning Bd. of Adjustment for the Borough of Palisades Park, the Appellate Division vacated the zoning approvals for a high-rise building to be constructed in Palisades Park. The appeals court found that the zoning board’s approval of an application modified sua sponte by the board’s chairman was arbitrary, capricious, and unreasonable and without basis in the record. 

Facts of the Case

The case centers on a decision by defendant Zoning Board of Adjustment for the Borough of Palisades Park (the Board) to grant use and bulk variances and final site plan approval for Berkeley Palisades Park, LLC’s (Berkeley) construction of a residential complex.  Plaintiff 440 Company-Carriage House, LP owns the Carriage House, an eighteen-story residential high-rise building in Fort Lee, about 200 feet away from Berkeley’s property. 

Berkeley filed an application with the Board in March 2016 seeking the approval of a multi-family residential high-rise building. Four variances were required for approval: 1) a “d(1)” use variance because, under the New Jersey Residential Site Improvement Standards, the property is classified as a high-rise residential building; 2) a “d(5)” density variance because the applicable ordinance permits 64 units and Berkeley wanted to build 154; 3) a “d(6)” height variance because Berkeley sought to construct a seventeen-story building, and eight stories is the maximum under the ordinance; and 4) a “c(1)” variance because the application specified a zero foot front yard setback when the ordinance required fifteen feet.

In response to Berkeley’s application, the Board conducted nine public hearings, during the course of which the site plan and application were amended several times. At the end of the October 16, 2017 hearing, the Chairman of the Board made a motion to approve the application, modified, apparently sua sponte, to a fourteen-story residential building with 121 units. The Board approved the application, as modified by the Chairman, memorializing its decision in a November 20, 2017 resolution. 

Plaintiff filed a complaint in lieu of prerogative writs, asserting the Board’s decision was arbitrary, capricious ,and unreasonable. The trial court vacated the approval of Berkeley’s application, ruling that the zoning board’s approval “granted relief far in excess of what was sought by [Berkeley], and that relief was granted arbitrarily, capriciously, and unreasonably and without basis in the record.” The trial court emphasized that the Board’s resolution failed to explain why Berkeley’s application did not meet the criteria for variances or why the application as amended by the Board’s chairman did, and further assumed that Berkeley would accept the Board’s amendments. 

Appellate Division’s Decision 

The Appellate Division affirmed in a per curium opinion. In reaching its decision, the appeals court noted that the Board did not grant the variances Berkeley sought or approve its application. Rather, it crafted its own solution, seemingly without being asked to do so.

“The Board approved a building of fourteen stories and 121 units – without any rationale provided as to why this number of stories and units met the criteria for variance relief or why Berkeley’s proposed building did not,” the court wrote. “Moreover, the reduction in units was still double the number of units permitted on the property.”

The Appellate Division further emphasized that the Board failed to explain its rationale for modifying the application. “In approving a substantially modified plan of its own devise, the Board did not grant the needed variances or approve Berkeley’s application. To the contrary, its sua sponte, unsupported modification was a de facto denial of Berkeley’s application,” the court wrote. “Without any explanation for its determination, we must conclude the Board’s actions were arbitrary and capricious. Therefore, the approval of the modified application is vacated.”

For more information about the court’s decision in 440 Company-Carriage House, LP v. Zoning Bd. of Adjustment for the Borough of Palisades Park or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

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