Ottawa House, LLC v. Borough of Hasbrouck Heights, Borough of Hasbrouck Heights Zoning Bd. of Adjustment & 377 Lasalle Grp., LLC

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6242-13. Tal Z. Cushmaro argued the cause for appellant Ottawa House, LLC (Hartmann Doherty Rosa Berman & Bulbulia, LLC, attorneys; Mr. Cushmaro and Paul S. Doherty, III, on the briefs). Joseph J. Rotolo argued the cause for respondents Borough of Hasbrouck Heights and Borough of Hasbrouck Heights Zoning Board of Adjustment. Rajiv D. Parikh argued the cause for respondent 377 LaSalle Group, LLC (Genova Burns, LLC, attorneys; Lisa A. John, on the brief). PER CURIAM

Plaintiff Ottawa House, L.L.C. ("Ottawa House") appeals from an order entered by the Law Division on March 17, 2014, which affirmed a determination by the Zoning Board of Adjustment ("Board") of the Borough of Hasbrouck Heights ("Borough"), granting preliminary and final site plan approval and variances to 377 LaSalle Group, L.L.C. ("LaSalle"). We affirm.

We briefly summarize the relevant facts. LaSalle is the owner of property located at 377 Route 17 in the Borough. LaSalle sought preliminary and site plan approval and variances so that it could convert an abandoned six-story office building on the site to a mixed-use building, consisting of 124 hotel rooms and about 4,924 square feet of office space. Plaintiff is the owner of a 156-unit residential apartment complex, which is located across the street and within 200 feet of LaSalle's property.

The subject property is located in the Borough's B-2 zone, in which hotels and office buildings are permitted uses. The existing six-story building exceeds the Borough's maximum zoning requirements for floor area ratio ("FAR"). The lot has a large asphalt parking lot, which does not conform to the Borough's buffer and setback requirements. There are no landscape buffers between the lot and adjacent properties. The lot exceeds the maximum impervious coverage requirement of ninety-one percent lot coverage, whereas seventy-five percent is permitted.

LaSalle submitted an application to the Board seeking preliminary and final site plan approval and variances. LaSalle sought a variance to allow it to increase the FAR by 0.20 so that it could accommodate the proposed lobby space. LaSalle also sought a variance to maintain the existing non-conforming height of the building at six stories, 73.5 feet, and 84 feet, 4 inches to the top of the parapet. The maximum permissible height is six stories, 60 feet.

In addition, LaSalle sought bulk variances related to the yard setbacks and buffer requirements. LaSalle proposed to bring the property into greater conformity with the zoning ordinance by minimizing the present deviations. Notably, LaSalle proposed to increase the distance of its proposed parking lot from the nearby residential property to nearly 105 feet.

The required setback along the rear property line is 44.5 feet, and the existing setback is 5.3 feet. LaSalle proposed to construct an above-ground detention basin in the area, which would provide a landscape buffer and alleviate the flooding conditions that have been experienced on the property and its immediate vicinity.

LaSalle also sought variance relief from the Borough's design standards for parking. The standards require 272 onsite parking spaces, while LaSalle proposed 212 spaces. The standards further require parking spaces that are nine feet wide, and twenty feet long. LaSalle proposed parking spaces that are nine feet wide, and eighteen feet long. LaSalle also sought variance relief regarding the proposed signage for the building.

On April 25, 2013, the Board conducted a hearing on the application. At the hearing, LaSalle presented testimony of Amad Patel ("Patel"), one of LaSalle's partners. Patel testified about the proposed hotel and its operations. LaSalle also presented testimony from Michael Moonan ("Moonan"), its civil engineer, who testified that the installation of an above-ground detention basin on the premises would alleviate some of the flooding in the area.

In addition, LaSalle's traffic engineer, Joseph J. Staigar ("Staigar"), testified that the proposed use of the premises would not increase the number of trips generated. Staigar said the 212 proposed parking spaces would be "[m]ore than sufficient" to accommodate the facility's parking needs. In addition, Jerry Kessler, an engineer, testified about the structure and operations of the proposed hotel.

At the hearing, plaintiff was represented by counsel, who cross-examined the witnesses. Plaintiff's counsel did not, however, raise any specific concerns regarding the application, or present any evidence for the Board's consideration. Members of the public also commented on the application.

In response to remarks by members of the Board, plaintiff's counsel, and the public, LaSalle modified its plan to increase the parking area setback and provide a landscaped buffer along the Ottawa Avenue property line. It also proposed to construct an eight-foot high fence along the rear of the site, so that the adjacent residential properties would not be affected by light from vehicles. LaSalle also made changes to the manner in which vehicles would circulate on the property.

On May 23, 2013, the Board conducted another hearing on the application. Moonan described LaSalle's modifications to the plan. Moonan also noted that the New Jersey Department of Transportation ("NJDOT") had provided a Letter of No Interest ("LONI"), which confirmed Staigar's testimony at the earlier hearing that a new access permit from the NJDOT was not required for the proposed change of use. In the LONI, the NJDOT also confirmed that there would not be a significant increase in traffic from that experienced by the previous use of the property. Christine Cofone ("Cofone"), a licensed professional planner, also testified for LaSalle. Cofone addressed the criteria for a grant of the proposed variances.

After the hearing, the Board voted unanimously to approve the application. The Board memorialized its decision in a resolution dated June 27, 2013. Thereafter, plaintiff filed an action in lieu of prerogative writs in the Law Division, challenging the Board's decision as arbitrary, capricious and unreasonable.

Judge Lisa Perez Friscia considered the matter on March 13, 2014, and thereafter filed a written opinion, in which she concluded that plaintiff's complaint should be dismissed and the Board's decision affirmed. The judge memorialized her decision in a judgment dated March 17, 2014. This appeal followed.

Plaintiff argues that the trial court erred by affirming the Board's decision. Plaintiff contends the Board abused its discretion by granting the variances because the proposed use will have a substantial detrimental impact upon its residents and the residents of the Borough.

Plaintiff asserts that Judge Friscia failed to adequately address the criteria for granting a variance under N.J.S.A. 40:55D-70(c)(2). Plaintiff further argues that the proposed use will cause substantial traffic problems that will affect its property and the surrounding area.

We have carefully considered plaintiff's arguments in light of the applicable law and the evidence presented before the Board. We are convinced that plaintiff's contentions are without sufficient merit to warrant extended comment. R. 2:11-3(e)(1)(E). We affirm the judgment dismissing plaintiff's complaint substantially for the reasons contained in Judge Friscia's thorough and well-reasoned opinion. We add the following comments.

"A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable." Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965). "We apply this same standard when reviewing a trial court's decision on an appeal from a decision of a board of adjustment." CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd., 414 N.J. Super. 563, 577 (App. Div. 2010) (citations omitted).

Here, the Board granted LaSalle the variances pursuant to N.J.S.A. 40:55D-70(c)(2), a provision of the Municipal Land Use Law (the "MLUL"), N.J.S.A. 40:55D-1 to -163. In Wilson v. Brick Township Zoning Board of Adjustment, 405 N.J. Super. 189, 198 (App. Div. 2009), we stated that, in order to secure variance relief pursuant to N.J.S.A. 40:55D-70(c)(2), the applicant must show:

(1) [that the variance] relates to a specific piece of property; (2) that the
purposes of the [MLUL] would be advanced by a deviation from the zoning ordinance requirement; (3) that the variance can be granted without substantial detriment to the public good; (4) that the benefits of the deviation would substantially outweigh any detriment[;] and (5) that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance.
[Ibid. (citation omitted).]

We are convinced Judge Friscia correctly found that LaSalle had satisfied the criteria for issuance of the variances pursuant to N.J.S.A. 40:55D-70(c)(2). As the judge noted, the Board had determined that the proposed use advanced the purposes of the MLUL, as enumerated in N.J.S.A. 40:55D-2. The evidence presented at the hearings supports the Board's determination. The evidence indicated that the project will address flooding and drainage issues on and around the property, provide more open space, and create a more desirable visual environment.

Furthermore, the evidence presented to the Board established that the project will not cause a substantial detriment to the public good, or substantially impair the intent of the Borough's zoning ordinance or zone plan. Thus, there was substantial credible evidence to support the Board's decision to grant LaSalle the variances sought, and the Board's decision was not arbitrary, capricious or unreasonable.

Plaintiff nevertheless argues that the project will have a substantial detrimental impact upon its residents and the residents of the Borough. Plaintiff contends that the there is a lack of adequate parking for the proposed use. Plaintiff contends that hotel guests, workers and others visiting the property will not be able to find parking on the premises. Plaintiff says these drivers will park in its residents' parking spaces, or seek parking in other places along Route 17 and surrounding areas.

Plaintiff asserts that its residents will be required to drive around the neighborhood to find places to park, thereby increasing traffic congestion. Plaintiff also asserts that its residents may be forced to cross an "extremely dangerous highway" to get back to their homes, if they are unable to park in their own parking spaces.

In addition, plaintiff argues that the Board failed to give sufficient weight to the building's proposed use as a conference facility, which will bring more vehicles to the site. Plaintiff seeks a remand to the Board so that it may reconsider its grant of the parking variance, giving greater attention to the alleged detrimental impacts that will result from the limited number of parking spaces allowed.

These arguments are not supported by the record. Indeed, during the hearings before the Board, plaintiff did not raise any specific concerns concerning the application and presented no evidence to the Board to support its assertions. Moreover, the evidence that LaSalle presented at the hearings reflected plaintiff's assertions regarding the adequacy of parking on the property.

As we noted previously, Staigar testified that 212 parking spaces will be "[m]ore than sufficient" for the project use. Staigar based his analysis upon data published by the Institute of Transportation Engineers ("ITE") in a publication called "Trip Generation," which he described as "the bible [for] projecting traffic for such uses."

Plaintiff argues that the Board erred by relying upon Staigar's testimony because he used data based on a national, rather than local, standard. "However, it is well settled that [a zoning] [b]oard 'has the choice of accepting or rejecting the testimony of witnesses. Where reasonably made, such choice is conclusive on appeal.'" Kramer, supra, 45 N.J. at 288 (quoting Reinauer Realty Corp. v. Nucera, 59 N.J. Super. 189, 201 (App. Div. 1960)).

Furthermore, the Board's decision to rely on Staigar's testimony was reasonable. Staigar's testimony was supported by the ITE data which has previously been accepted as a reliable and authoritative source of data regarding traffic generation. See Kode Harbor Dev. Assocs. v. Cnty. of Atlantic, 230 N.J. Super. 430, 436 (App. Div. 1989). In addition, the State Highway Access Code requires that every traffic impact study submitted to the NJDOT for its review must include ITE traffic data. See N.J.A.C. 16:47-1.1 to -9.1.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION