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Price v. Malas Enterprises 2, LLC

2008 WL 2938479 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; MULTI-FAMILY DEVELOPMENT — Where a zoning ordinance does not define “limited multi-family developments,” a court can look to definitions of similar structures within the same zoning ordinance to discern what might constitute a “limited multi-family development.”

The owner of a vacant parcel of land proposed to construct a multi-family apartment building on it. It would consist of “five residential floors totaling thirty-five units, situated over three levels of above-ground parking.” The property was located in an “‘R Zone’ which permit[ted] principal residential uses of ‘one, two and four family dwellings’ and row houses for one family use.” The zone also permitted certain conditional residential uses such as “public housing developments for senior citizens” and “limited multi-family developments.” The zoning ordinance did not define “limited multi-family developments.” It did, however, provide that such developments would be permitted “subject to site plan approval by the planning board and provided that: (a) the site was at least 10,000 square feet; (b) the development would be compatible with the neighborhood; and importantly, (c) the requirements for “garden apartment developments” as contained in a note to the zoning ordinance, had to be met by the applicant.

The zoning ordinance listed two types of apartment houses. One was a “garden-type,” which constituted a “residential structure of not more than three stories containing three or more dwelling units.” The other type was a “High Rise” which was defined 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 ordinance providing criteria for garden-apartment development also stated that “high-rise apartment buildings” were prohibited in the R Zone, specifically stating that “[n]o high-rise apartment building shall exceed a height of 22 stories or 230 feet.” High rise apartment buildings were not a permitted use in the R Zone, either by right or as a conditional use.

The zoning board treated the application as being for a “limited multi-family development,” which was a conditionally permitted use in the R Zone. Then, after hearings, it approved the application. An objector challenged the board’s approval. The lower court rejected the objector’s argument which was that the project “was a prohibited use requiring the enhanced “d(1) variance standard.” The lower court upheld the zoning board’s determination that the proposed use was a conditional use, “and thus reviewable under th lesser ‘d(3)’ standard.” The Appellate Division agreed with the objector and held that the lower court “erred in concluding that the proposed project should be viewed as a conditional use.” It based its holding on its finding that “the proposed building [was] a high rise apartment house because it exceed[ed] the height allowed for garden apartments.” In doing so, it cited a decision it had made in an earlier case where it stated “[o]ur conclusion is fortified by the use of the word ‘limited’ because ‘multi-family developments’ in the section of the ordinance indicating the conditional uses allowed in an ‘R’ zone. That word, plus the zoning notes referenced, clearly indicate[d] that although multi-family dwellings consisting of more than four units are a conditional use in this zone, high rise apartment houses are not.”

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