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Price v. N.Y. Avenue, LLC

A-0362-07T1 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; INTERPRETATION — Interpretation of an ordinance is a question of law and an appellate court is not bound by a land use board’s or a lower court’s construction of a definition.

A developer sought to build “a six-story, fifty-dwelling-unit building, with five levels of dwelling space and two levels of parking – one at and one below grade level. Each unit [was to] have its own heating source.” The property was located within a “residential mixed” zone where the permitted uses were “‘one, two and four family dwellings’ and row houses for one-family use.” Under certain specified conditions, limited multi-family developments were permitted in the zone. Buildings falling under the definition of “Apartment House, High Rise” were not authorized or permitted in the zone. Under the municipality’s ordinance, an “Apartment House, High Rise” was defined to be “[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.” Approvals were granted, and an objector sued to have the approvals set aside.

The lower court recognized that the structure itself had the character of a high-rise apartment house, but concluded that it did not meet the definition of an “Apartment House, High Rise” because each unit had its own heating source and the units were to be occupied by “condominium owners, not ‘tenants.’” Consequently, it upheld the land use board’s grant of approval.

On further appeal, the Appellate Division began by pointing out that “[i]nterpretation of [an] ordinance is a question of law,” and that an appellate court is not bound by a land use board’s or lower court’s construction of a definition. It then pointed to five earlier unpublished decisions, all of which were issued after the lower court dismissed this particular action. In each of those cases, an appellate court “concluded that the reference to a structure’s heating source [was] superfluous.” Although “unpublished decisions do not have precedential value,” these particular decisions were binding on the land use board “which was a party in every one of the cases.” Consequently, the Court felt obligated to give effect to the legislative intent of the Municipal Land Use Law, and pointed out that “it is appropriate to assume that [a] governing body intends to comply with the Municipal Land Use Law ... which authorizes a municipality to adopt a zoning ordinance.” In essence, it viewed “references to heating source and tenants” within the definition of “Apartment House, High Rise” to be superfluous and concluded that the municipality’s governing body never “intended to exclude buildings where the requisite number of stories and dwelling units from the definition of high rise simply because each dwelling unit [had] its own heating source.


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