IMPORTANT UPDATEFor those of you who may not have lived in Hackensack 7 years ago when Bill Noonan rallied then organized the residents of Prospect and Overlook Avenues to oppose PC Air Rights' plan to construct a 23-story hi rise tower (Excelsior III) which would span over the railroad tracks at Prospect and Central Avenues.
PC Air Rights was determined to build this apartment building with retail stores on the lower level floors which we would then drive/walk beneath like the apartment buildings you drive under on the New York side of the George Washington Bridge.
Concern for Hackensack, a coalition of the Prospect/Overlook Avenue hi rise buildings, was comprised of the same vocal Hackensack residents who packed the City Hall auditorium at countless Hackensack Zoning Board Special Meetings. The Mayor and Council listened to those residents and lived up to their campaign promise to support the residents in their fight against the Excelsior III application. See update from Bill:
----- Original Message -----
From: Bill
To: Concern For Hackensack
Sent: Friday, July 02, 2010 3:36 PM
Subject: Excelisior III
Dear All:
I thought it might be necessary to say more about Excelsior III. The article in the County Seat told most of the story but I believe a little more is needed to clearly state just what the Court said and what it means to our seven year struggle.
After essentially losing about five court battles, this one confirms once and for all that P.C. Air Rights cannot claim that the air space over the railroad tracks from Summit Avenue to Second Street and attempting to combine two lots separated by Prospect Avenue cannot be considered one contiguous lot. It also confirmed that just because the City does not prohibit something in it's codes, does not imply that it is permissible.
Even more importantly the Appellate Court saw no need to send it back to the lower court for any further consideration as it stands.
I could go on further but for now P. C. Air Rights has to start all over again with an entirely new plan, while considering the two large obstacles mentioned above, if they choose to do anything at all.
I personally will never consider the battle to build something in that area over. I do believe that our original battle as we know it, is in a very strong place.
It should also be mentioned that the City Officials did stay firm in their commitment to properly enforce the City building codes and speaking for myself and I'm sure the Coalition as well, we are grateful.
There is really no way I can thank you all sufficiently for a job well done but I will just say it. "Thank you all for your work and efforts and for a job well done".
The Coalition will stay alive and vigilant and I will of course keep you all informed.
Stay tuned and again thank you.
Bill
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http://www.thecountyseat.biz/issues/2010-07-01.pdf THE COUNTY SEAT
July 1, 2010
City Wins Air Rights Case Again
P.C. Air Rights, a development firm appealing a judge's decision to uphold the City
of Hackensack's rejection of a proposal to build a new high-rise tower along Prospect
Avenue, has once again lost its battle.
"This was a long hard-fought battle," said Joseph Zisa, the city attorney. "The mayor
and council for the last five years have honored their committment to the people of Prospect
Avenue."
This latest appeal was argued by Andrew Fede, representing the developer, and Priscilla
Triolo, representing the City of Hackensack, on Feb. 3 before Appellate Division
Judges Dorothea Wefing, Carmen Messano and Laura LeWinn, who issued their decision
to affirm the trial court's ruling on June 28.
This was the second time both parties appeared before the Appellate Court in connection
with P.C. Air Rights' efforts to construct the high-rise apartment complex.
The developer's plan involves two noncontiguous lots, which are divided by
Prospect Avenue and owned by New York Susquehanna & Western Railway. The sale of
the lots is contingent upon P.C. Air Rights securing development approvals from the city,
which is unwilling to grant them.
The developer first submitted its application to the city in December 2003. The plan
sought approval of a 23-story high-rise on the east side of Prospect. The developer proposed
to erect the building over the railway's right of way, utilizing the air rights. The city's code
enforcement official deemed the site plan application incomplete because it was not
accompanied for requests for use variances and bulk variances. P.C. Air Rights appealed
to the Hackensack Zoning Board of Adjustment, contending no variances were required.
The board upheld the code officer's decision.
While P.C. Air Rights appealed the board's decision, the city amended its zoning ordinance,
which affected the development site. After the zoning board upheld the previous
determination, P.C. Air Rights filed its action. Following a bench trial, the court concluded
that the rezoning constituted impermissible spot zoning by the city. It also set aside the
remainder of the zoning amendments on procedural grounds but granted the city the
opportunity to correct those defects. P.C. Air Rights appealed the court's judgment. After
disposing of each challenge, the Appellate Court remanded the matter to the trial court.
Following another defeat at trial court, P.C.Air Rights appealed once again earlier this
year, but to no avail.
http://www.leagle.com/unsecure/page.htm?shortname=innjco20100628236PC AIR RIGHTS, L.L.C. v. MAYOR AND COUNCIL OF CITY OF HACKENSACK
PC AIR RIGHTS, L.L.C., Plaintiff-Appellant,
v.
MAYOR AND COUNCIL OF THE CITY OF HACKENSACK, THE CITY OF HACKENSACK, and THE HACKENSACK BOARD OF ADJUSTMENT, Defendants-Respondents.
No. A-2905-08T1.
Superior Court of New Jersey, Appellate Division.
Argued February 3, 2010.
Decided June 28, 2010.
Andrew T. Fede argued the cause for appellant (Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz, attorneys; Mr. Fede, of counsel and on the brief).
Priscilla J. Triolo argued the cause for respondent Hackensack Board of Adjustment (Law Offices of Richard Malagiere, attorney; Ms. Triolo and Richard Malagiere, on the brief).
Respondents Mayor and Council of the City of Hackensack and the City of Hackensack have not filed a brief.
Before Judges Wefing, Messano and LeWinn.
PER CURIAM
Plaintiff appeals from a judgment entered by the trial court in January 2009 following the conclusion of remand proceedings we ordered. After reviewing the record in light of the contentions advanced on appeal, we affirm.
This appeal is the second time these parties have been before this court in connection with plaintiff's efforts to construct a high-rise apartment building in Hackensack. On each occasion, plaintiff has appealed from determinations of the trial court that impeded those development efforts.
We give the following brief summary of plaintiff's development efforts. Plaintiff is the contract purchaser of Lots 9 and 10 in Block 627 in Hackensack. The contract seller is New York Susquehanna and Western Railway Corporation; closing of the contract is contingent upon plaintiff securing the necessary development approvals. Lots 9 and 10 are not contiguous but are divided by Prospect Avenue, a north-south dedicated public thoroughfare. Lot 9, which is on the east side of Prospect, is the larger of the two; it consists of 151,940 square feet while Lot 10, on the west side of Prospect, has 49,595 square feet. Combined, the two lots total 201,535 square feet.
The contract of sale between plaintiff and the railway divided the two lots into three separate tracts, A, B, and C. It defined Tract A as "the fee of air space plus the easement for support and access over the [railway's] line" between Prospect Avenue and Summit Avenue. Summit parallels Prospect and lies one block to the west. Tract A occupies Lot 10. Tracts B and C are on Lot 9; Tract B runs between Prospect Avenue and Overlook Terrace and Tract C runs between Overlook Terrace and Second Street.
At the time plaintiff initially submitted its development application, in December 2003, Lot 10 was divided into two zoning districts, R-1, single family dwellings; and R-3, which permitted both single-family and multi-family dwellings while Lot 9 was divided into three zoning districts, R-3; R-2A, which permitted one and two family dwellings and garden apartments; and R-3B, which permitted professional office buildings as well as those uses permitted in R-2A.
Plaintiff sought approval for the construction of a twenty-three story high-rise apartment building, with associated appurtenances, all of which were to be located on the east side of Prospect Avenue, on Lot 9. Plaintiff proposed to erect this building over the railway's right of way, utilizing the air rights it proposed to purchase. Plaintiff's site plan application, however, utilized both Lot 9 and Lot 10 to satisfy requirements of the Hackensack zoning code. The City's code enforcement official deemed the site plan application incomplete because it was not accompanied by requests for use and bulk variances. Plaintiff appealed that determination to the Zoning Board of Adjustment (the "Zoning Board"), contending no variances were required. The Board, however, upheld the determination of the code enforcement officer in this regard.
While plaintiff's appeal was pending before the Zoning Board, the City amended its zoning ordinance in several regards, one of which was that that portion of Lot 9 which had been zoned R-3B was changed to R-2. After the Zoning Board passed its resolution upholding the determination with respect to the need for variance relief, plaintiff filed an action in lieu of prerogative writs seeking various forms of relief. Following a bench trial, the trial court concluded that the rezoning to R-2 constituted impermissible spot zoning. It also set aside the remainder of the zoning amendments on procedural grounds but granted the City the opportunity to correct those procedural defects. Further, it concluded that the fact that Lots 9 and 10 were not contiguous prevented the use of Lot 10 being included in the calculations for the development of Lot 9.
Plaintiff appealed the trial court's judgment to this court. After considering and disposing of each of plaintiff's challenges, we remanded the matter to the trial court for consideration of whether the City's zoning ordinance permitted the aggrandizement of non-contiguous lots for purposes of calculating compliance with the zoning code and whether the lot coverage restrictions contained in the City's zoning code were calculated on a per lot basis. We deemed that remand necessary in light of the fact that none of the parties had presented to us the relevant portions of the City's zoning ordinance. We also directed the trial court to consider, based upon its answers to those questions, whether plaintiff was required to seek variance relief to proceed with its proposed project. Plaintiff has appealed from the trial court's judgment that such aggrandizement of lots is not permitted under Hackensack's zoning ordinance and that the ordinance requires that the calculations to compute maximum coverage restrictions be done on a per lot basis.
We are satisfied the trial court was entirely correct in this regard. We note first that we are reviewing the trial court's interpretation of the City's zoning ordinance, and are thus dealing with a question of law. Our review, in consequence, is de novo. Mountain Hill, L.L.C. v. Zoning Bd. of Adjustment of Middletown, 403 N.J. Super. 210, 234-35 (App. Div. 2008) (stating, "[w]hen the sole issue before us is the meaning of language in an ordinance, the trial judge's determination is not entitled to any special deference because the issue is one of law which is always subject to review de novo."), certif. denied, 197 N.J. 475 (2009); Bubis v. Kassin, 184 N.J. 612, 627 (2005) (noting that "the meaning of an ordinance's language is a question of law that we review de novo").
In determining the meaning of an ordinance, the court should adhere to principles of statutory construction. Id. at 626. A court should construe an ordinance based upon the Legislature's intent and in a manner that is reasonable. Place v. Bd. of Adjustment of Saddle River, 42 N.J. 324, 328 (1964).
The issue that was before the trial court and is now before us is not, as plaintiff frames it, whether two lots that are not contiguous can be included in the same site plan. Rather, the question is whether Hackensack's ordinance allows for aggrandizement of two non-contiguous lots when considering the area, yard and bulk requirements of a proposed site plan.
Various provisions within the City's zoning ordinance indicate that the intent of the City was to use "lot" in the singular as the appropriate measure. Section 175-1.4 of the City's ordinance, for instance, states that one of its purposes is:
To regulate the intensity of use of zoning lots and to determine the areas of open spaces surrounding buildings necessary to provide adequate light and air, privacy and convenience of access to property owners and City emergency services[.]
[Hackensack, N.J., Zoning Ordinance and Map § 175-1.4 (May 10, 2005).]
The ordinance defines a "lot" as "[a] designated parcel, tract or area of land established by a plat or otherwise as permitted by law and to be used, developed or built upon as a unit." Id. at § 175-2.2. Lot coverage is "[t]hat portion of a lot which is occupied by buildings and accessory buildings but not including other areas of impervious surfaces such as walkways, driveways, patios and open parking lots." Ibid. A parcel is "[a] lot or a tract of land" while a "site is "[a]ny plot or parcel of land or combination of contiguous lots or parcels of land." Ibid. The ordinance further defines a site plan as:
[a] development plan of one or more lots on which is shown (1) the existing and proposed condition of the lot, including but not necessarily limited to topography, vegetation, drainage, flood plains, marshes and waterways, (2) the location of all existing and proposed buildings, drives, parking spaces, landscaping, structures and signs, lighting, screening devices, and (3) any other information that may be reasonably required in order to make an informed determination.
[Ibid.]
Clearly, Lots 9 and 10 cannot be deemed a "site" under the Hackensack ordinance since they are indisputably not contiguous.
Other portions of the ordinance's definitions also bolster our conclusion that the trial court correctly determined that Hackensack does not permit aggrandizement of non-contiguous lots to satisfy bulk and lot line requirements of the zoning ordinance. The ordinance defines on-site as being "[l]ocated on the lot in question" and off-site as "[l]ocated outside the lot lines of the lot in question but within the property (of which the lot is a part) which is the subject of a development application or within a contiguous portion of a street or right-of-way." Ibid.
We agree with the trial court that there is no support for plaintiff's contention that it should be permitted to aggrandize these two lots because there is no provision within the City's ordinance which specifically prohibits such aggrandizement. Aggrandizement is clearly contrary to the entire thrust of the ordinance and, moreover, has the clear capacity to permit a developer to evade long-settled bulk restrictions, to the detriment of adjoining owners and good planning.
We have considered whether the matter should again be remanded to the trial court in light of the trial court's failure to consider what variances plaintiff would have to seek in light of its decision with respect to aggrandizement. We have determined that no remand is necessary. Plaintiff submitted its application to the Board nearly five and one-half years ago. Much has occurred in the interim that could have a significant effect on the viability of plaintiff's proposal as it is currently framed and affect whether plaintiff wishes to revise its proposal if, indeed, it still wishes to pursue it at all. Those practical decisions will bear upon the question of variance relief, if plaintiff opts to go forward.
The order under review is affirmed.
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