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Price v. Genesis Construction Corporation

2009 WL 2391959 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; CONDITIONAL USES — Even though a municipal ordinance may define a high rise apartment house as one with more than three stories, containing three or more dwelling units, and containing a heating plan that supplies heat to all tenants, reference to a heating source may be superfluous and buildings otherwise qualifying as high rise apartment houses may meet the definition even if each apartment unit has its own heating supply.

One developer sought to construct a five-story residential building, and another developer desired to construct a ten-story residential building, each in a residential zone. Although certain limited multi-family developments were conditionally-permitted uses in the zone, structures that fell within the ordinance’s definition of “Apartment House, High Rise” were not permitted in the zone, even as a conditional use. The municipal ordinance defined “Apartment House, High Rise” as a “residential structure of more than three stories, containing three or more dwelling units and containing a heating plant which supplies heat to all tenants.” The zoning board granted variances for both developers. It agreed with the developer that the proposed buildings did not fall under the definition of “Apartment House, High Rise.” Rather, it concluded that the structures were an “Apartment House, Garden-Type,” which was defined as having “not more than three stories containing three or more dwelling units.” Such structures were conditionally permitted in the zone. A citizen challenged the propriety of the variance grants.

The lower court upheld the board’s decision, but the Appellate Division reversed both the lower court’s decision and the actions of the board. It agreed with the objector that the proposed structures were non-permitted high-rise buildings. It ruled that it was clear that each structure was an “Apartment House, High Rise” and believed that the applications should have been denied on that basis alone. It noted that several panels of the Appellate Division had previously looked at the language of the same “Apartment House, High Rise” ordinance and concluded that the reference to the heating source was superfluous. The Court said that although these unpublished decisions did not have precedential value to the rest of the world, they were binding on the board, which was a party in every one of those cases. Therefore, regardless of the source of heat, structures with more than three stories and containing three or more dwelling units were not conditional uses in the residential zone.

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