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PC Air Rights, L.L.C. v. Mayor and Council of the City of Hackensack

A-2905-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; INTERPRETATION — Where a zoning ordinance uses the word “lot” in the singular and also describes a “site” as “any plot or parcel or combination of contiguous lots or parcels of land,” the landowner cannot aggregate multiple lots (which would be a “site”) to avail itself of favorable treatment given to a “lot” that is not given to a “site.”

A developer purchased two lots from a railway corporation, contingent upon securing necessary development approvals. The lots were not contiguous, but were divided by a public road. The contract of sale divided the two lots into three separate tracts. One tract covered air space over a railway line with an easement for support. The developer sought approval for the construction of a high rise apartment building over the railway’s right of way, utilizing the air rights it proposed to purchase. The site plan application utilized the two surface lots to satisfy the requirements of the zoning code. The municipal code officer found the application incomplete because it was not accompanied by requests for use and bulk variances. The developer appealed the determination to the zoning board of adjustment, contending no variances were required. The board upheld the officer’s decision and passed a resolution to that effect.

The developer sued, and the lower court concluded that because the lots were not contiguous, the developer could not include one of the lots in the calculations for the other lot, the one that was to be developed. The developer appealed, and the lower court, on remand, held that the aggrandizement of non-contiguous lots was not permitted under the municipal zoning ordinance. The court further held the ordinance required that maximum coverage calculations be done on a per lot basis.

The developer appealed these rulings, but the Appellate Division affirmed. The Court examined the municipality’s zoning ordinance, and concluded the ordinance did not allow for aggrandizement of two non-contiguous lots when considering the area, yard, and bulk requirements of a proposed site plan. The Court said that various provisions within the ordinance indicated the intent of the municipality was to use the word “lot” in the singular as the appropriate measure. The ordinance defined a “lot” as a designated parcel, tract or area of land, while a “site” was described as any plot or parcel of land or combination of contiguous lots or parcels of land. The Court concluded that the developer’s lots could not be considered a single site because they were not contiguous.

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