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Price v. Hudson Heights Development, LLC

2008 WL 5119157 (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 Div. 2008) (Unpublished)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; and parking. 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 rejected the resident’s argument that the board’s decision was invalid because the developer had failed to file a statement disclosing the names and addresses of all persons holding at least ten percent of its stock before the board rendered its decision.

On 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. The Court found the board incorrectly treated the developer’s proposed building as a conditional use within the residential zone when it treated the building as a limited multi-family development. Additionally it pointed out that, according to the municipality’s ordinance, a building exceeding the height limit for garden apartments was to be considered a high-rise apartment and could not be considered a limited multi-family development. The Court found 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, the Court 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. In light of its decision regarding the question of whether the developer’s proposed building was a conditional use or a prohibited use, the Court chose not to address the resident’s argument that the developer’s failure to file a holdings disclosure invalidated the board’s decision.

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