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Price v. 3623 Parkview, LLC

2008 WL 5119165 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING — If a municipality’s zoning ordinance provides that buildings over a certain height are considered to be high-rise apartments and not limited multi-family developments, then a project, even if appearing to be a multi-family development, must be governed by the zoning ordinance’s rules for high-rise apartments.

A developer sought to construct a four-story, thirty-three unit apartment building in a residential zone. The municipality’s zoning board of adjustment granted the developer’s variance requests for maximum density; maximum lot coverage; front, rear, and side yard setbacks; building length; building height; parking; and a loading berth. On a challenge of the board’s decision by a nearby resident, the lower court affirmed the board’s approval of the developer’s variance requests. The lower court found that the board’s decision was not arbitrary, capricious or unreasonable.

On further appeal, the Appellate Division pointed out that in the residential zone where the developer’s proposed project was to be constructed, residential structures were limited to four-family dwellings unless a proposed project was a limited multi-family development that met certain conditions. Here, the Court found the board incorrectly treated the developer’s proposed building as a conditional use within the residential zone by considering the building to be a limited multi-family development. Additionally it pointed out that, under the municipality’s zoning ordinance, a building that exceeds the height for garden apartments was to be considered a high-rise apartment and could not be considered a limited multi-family development. The Court also found that that the board should have applied the standard used for prohibited uses in making its decision to grant the developer’s variance requests. As a result of its findings and conclusions, it reversed the lower court’s decision affirming the board’s granting of the developer’s variance requests and remanded the matter to the board for a determination consistent with the Court’s decision.

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