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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0249-06T3 A-0358-06T3 JOSEPH A. SALVATI and NANCY E. SALVATI, Plaintiffs-Respondents, v. ZONING BOARD OF ADJUSTMENT OF BOROUGH OF CLIFFSIDE PARK, Defendant, and 33 KNOX AVENUE, LLC, Defendant-Appellant. __________________________________ JOSEPH A. SALVATI and NANCY E. SALVATI, Plaintiffs-Respondents, v. ZONING BOARD OF ADJUSTMENT OF BOROUGH OF CLIFFSIDE PARK,

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Defendant-Appellant, and 33 KNOX AVENUE, LLC, Defendant. ______________________________________

Submitted November 5, 2007 - Decided Before Judges Sabatino and Alvarez. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-118806. Mariniello & Mariniello, P.C., attorneys for appellant 33 Knox Avenue, LLC in A-024906T3 (Joseph Richard Mariniello, Jr., on the brief). Biagiotti, Marino & Montecallo, attorneys for appellant Zoning Board of Adjustment of Borough of Cliffside Park in A-0358-6T3 (Robert Montecallo, on the brief). Schenck, Price, Smith & King, LLP, attorneys for respondent in both appeals, Joseph A. Salvati and Nancy E. Salvati (Kurt G. Senesky, on the brief). PER CURIAM In these related appeals calendered back-to-back, 33 Knox Avenue, LLC, ("the developer") and the Cliffside Park Zoning Board of Adjustment ("the Board") seek review of an order entered by the Law Division on July 12, 2006. The order in question invalidated use and bulk variances that the Board had granted to the developer, allowing it to build a two-family dwelling on property in Cliffside Park zoned exclusively for single-family homes. We affirm. I. The subject property, Block 3103, Lot 28, commonly known as 33 Knox Avenue, is located in the northeastern section of Cliffside Park within a residential area. The property is on the easternmost block of Knox Avenue, a dead end street. Knox Avenue terminates at the eastern border of the borough, at a cliff edge that provides a view of the Manhattan skyline. According to the borough's zoning map, the entire section of Knox Avenue east of Palisades Avenue, including the premises in question, is within a R-1 residential zone. The R-1 zone permits only single-family dwellings. There is presently a small single-family house on the subject property, with a detached garage. The property has fifty feet of frontage on Knox Avenue and extends 101 feet to the rear. The developer seeks to tear down the existing structures and build a three-story duplex on the site. The proposed duplex would consist of two adjacent three-bedroom units. The duplex would have two one-car garages on the

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ground level, as well as driveway space in front of each garage sufficient for an additional vehicle. Each of the two dwellings would have a lot area of 2,526 square feet. Because the proposed duplex was not in conformity with the applicable R-1 zoning requirements, the developer applied to the Board for a use variance, pursuant to N.J.S.A. 40:55D-70d. The developer also sought a bulk variance from the R-1 zone's requirement of a minimum of 5,000 square feet of lot area per dwelling. Respondents, Joseph and Nancy Salvati ("the Salvatis"), have resided at 34 Knox Avenue, across the street from the subject property, since 1975. The Salvatis and several other neighbors on Knox Avenue objected to the proposed variances. The Salvatis and the other objecting residents of Knox Avenue contended that the proposed duplex would detract from the character of their neighborhood, and that it also would increase congestion and cause other negative consequences. The Board held a public hearing on the developer's application on December 14, 2005. The developer's principal witness was its planner and architect, Jose Carballo, who designed the duplex. Carballo testified that the proposed duplex conformed to all minimum front, rear, and side yard setbacks within the R-1 zone and also was within the height requirements for that zone. The duplex would replace the existing structures on the property: a single-family home that Carballo described as "very small," "very old," and "somewhat ill maintained"; and a detached garage in the yard. Carballo noted that, and it is undisputed on this appeal, the existing garage did not comply with the R-1 zone's side yard and rear yard setback requirements. With respect to the duplex's compatibility with the character of the surrounding neighborhood, Carballo testified that he had toured the area and that "[t]he street as well as the entire area is predominantly single[-]family homes." However, Carballo stated that there was a developing pattern of new two-family homes in the area. He testified that, as he toured the neighborhood, he observed "at leas[t] four two[-]family homes" similar to the proposed project, and another similar duplex under construction on the same street. In sum, Carballo opined that "[Knox Avenue] is actually becoming more two[-]family oriented," and that a more general trend toward two-family dwellings was evident throughout Cliffside Park. As support for his opinion that the northern area of Cliffside Park was developing into a mixed single-family and two-family zone, Carballo cited a 1997 report by the borough's Planning Board that had reexamined the borough's Master Plan. In that report, the Planning Board recommended that the northern part of the borough, where the subject property is located, should be re-zoned to permit both single-family and two-family dwellings. The Planning Board based that recommendation on what it perceived to be the development pattern in that part of Cliffside Park
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since 1989, when the borough's present zoning ordinance was adopted. Among other things, the 1997 report noted "the existing development pattern which consists of [] mainly two[-]family dwellings." In his testimony, Carballo specifically addressed the so-called positive and negative criteria applicable to the proposed variances, pursuant to N.J.S.A. 40:55D-70d. First, he maintained that the project "conforms to the Master Plan," relying on the Planning Board's 1997 recommendation to re-zone the area. Second, he claimed that the project conforms to the State's emerging "smart growth" initiatives by redeveloping the property as "a more efficient type of development." Carballo considered these features as positive aspects of the project. With respect to the statutory negative criteria, Carballo opined that the project had no adverse consequences. He noted that a single-family home of the same dimensions as the proposed duplex would not require any variances. He further asserted that the duplex would have no negative effect on the neighborhood, and that it would not substantially impair the borough's zoning ordinance. Several residents of Knox Avenue disagreed with Carballo's assessments, and voiced their objections during the public portion of the December 14, 2005 hearing. Joseph Salvati spoke first. Salvati asserted that Carballo and the developer failed to recognize pertinent negative criteria in their presentation to the Board. Salvati testified that the area has always been primarily single-family homes, and that the five long-standing residences that were actually two-family homes had the appearance of single-family homes. Salvati testified that the duplex style of two-family homes did not exist on Knox Avenue until the mid 1990's, when the Board began granting variances for such structures. He contended that, to his dismay, the Board had granted three such use variances for duplex construction in the R-1 zone on or near Knox Avenue between 2003 and 2005. Salvati also pointed out that, despite the Planning Board's 1997 report recommending a re-zoning of the northern part of Cliffside Park, the Borough's Council had not amended the Zoning Ordinance in the nine years since those recommendations had been made. Salvati also argued that, since the Council knew of the Master Plan reexamination, and was aware of the amount and type of variance requests made each year through an annual report from the Board, Council's failure to act on the re-zoning recommendation must be presumed to be intentional. Salvati maintained that the proposed duplex was not in conformity with the character of surrounding properties. He argued that its design detracted from the aesthetics of the neighborhood, which contained many older homes, because the duplex had a "cookie cutter[]" appearance. Other neighbors testifying before the Board agreed, arguing that the proliferation of duplexes in their neighborhood had resulted in increased traffic, more parked cars on the
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streets, and a loss of trees and vegetation. One neighbor, apparently referring to the fact that the proposed duplex required a large tree to be cut down in the front of the property, argued that "you don't replace a hundred year old tree with some shrubs." Another neighbor complained that the recent construction of other duplexes on Knox Avenue looked "ridiculous" compared to the older houses on the block. A neighbor adjacent to the subject property also opposed the plan, claiming that the duplex would overshadow his driveway and "create an alley[-]like effect." In total, eight residents of Knox Avenue, including the Salvatis, spoke at the Board meeting. All of them opposed not only the project in question, but also the Board's general practice of granting variances for duplexes on their street. The borough's planner, Lisa Phillips, in a November 2005 memorandum to the Board, expressed no opinion on whether the proposed variances should be granted. Phillips did note that the proposed project complied with parking and rear and side yard setback requirements. She recommended minor changes to the project, for such things as slightly smaller curb cuts, a different fence, and the planting of a shade tree in the front yard. In her memorandum, Phillips cited to the language of the 1997 Master Plan study recommending a re-zoning of the area to allow for two-family dwellings as a permitted use. However, she offered no view of whether that 1997 recommendation justified the requested variances. In response to the objections of the neighbors at the hearing, the Board's chairman, John Chmielewski, stated that, while the Board was receptive to the residents' concerns, "the town is evolving." A second Board member, Paul Forget, stated that he saw nothing wrong with the project, because "[i]t is about the same as many others that we have been looking at." At the close of the meeting, all five Board members eligible to vote on the application approved it. At its ensuing meeting on January 23, 2006, the Board adopted a resolution memorializing its approval of the variances for 33 Knox Avenue. In that resolution, the Board recited the following determinations: A. The existing neighborhood includes numerous duplexes and other multi-family residences. The Board agrees with [the developer's expert Carballo's] testimony that the neighborhood is evolving into a two-family zone. B. The 1997 Reexamination Report of the Borough Master Plan recommends a singleand two-family residential land use designation for the subject site, as well as surrounding properties. . . . C. The existing structure has a detached garage which violates the Borough's side and rear yard requirements. D. The Board believes that a "D" variance [pursuant to N.J.S.A. 40:55D-70d] for lot area and use can be granted in this matter, as the following zoning purposes are advanced by the application:

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i) Elimination of a detached garage that violates side and rear yard set-backs. ii) Construction of a two-family home that complies with the Master Plan and is in conformity with the other homes in the neighborhood. iii) The lot area variance is part of the use variance, as the minimum lot area per dwelling unit in the R-2 zone is 2,500 sq. ft. which the subject application exceeds. E. [T]he house, as located, conforms with the neighborhood and subject property; and therefore, the requested variance can be granted without substantial detriment of the public good and without impairing the intent and purpose of the Zoning Plan and Zoning Ordinance of the Borough of Cliffside Park. F. The proposed structure will aesthetically improve the subject property. After the passage of the resolution, the Salvatis filed a timely complaint in lieu of prerogative writs in the Law Division, challenging the Board's action. The Salvatis contended that the Board acted arbitrarily, capriciously and unreasonably in granting the developer use and bulk variances for the proposed project. In this regard, they asserted that the Board's analysis did not fulfill the positive and negative criteria required for such variances under N.J.S.A. 40:55D-70d. Both the Board and the developer appeared through counsel in the Law Division and opposed the Salvatis' complaint. After considering the entire record and the parties' arguments, Judge Joseph S. Conte issued a letter opinion on July 12, 2006 concluding that the Salvatis' challenge to the Board's action was justified and, accordingly, declaring its variance approvals for the subject property invalid. The judge found that the Board's January 23, 2006 resolution was "substantively inadequate and therefore incapable of sustaining the granting of [the developer's] variances." Specifically, the judge found that the Board's resolution lacked adequate findings respecting the positive and negative criteria for a subsection "d" variance as required by law. As part of his analysis, the judge determined that the Board had not adequately taken into account the objections of the neighboring residents. He noted that the Board relied too heavily on the developer's expert while "discount[ing] the testimony of those living on Knox Avenue who are best equipped to speak on the negative effects encountered . . . from [the] existing nonconforming two-family homes on their street." The Board and the developer now appeal, and seek to reinstate the variances at issue. Appellants contend that the trial judge improperly substituted his own judgment for that of the Board, that the application did meet the
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requisite statutory criteria, and that the Board's approval was neither arbitrary nor capricious. II. The applicable law governing land use variances is codified in the Municipal Law Use Law ("MLUL"), N.J.S.A. 40:55D1 to -163, which states in relevant part: The board of adjustment shall have the power to: .... d. In particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: (1) a use or principal structure in a district restricted against such use or principal structure, (2) an expansion of a nonconforming use, (3) deviation from a specification or standard . . . (4) an increase in the permitted floor area ratio . . . (5) an increase in the permitted density . . . . No variance or other relief may be granted under the terms of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance. [N.J.S.A. 40:55D-70d.] The grant of a use variance pursuant to this section requires proof of both "positive and negative criteria." Sica v. Bd. of Adjustment of Twp. of Wall, 127 N.J. 152, 156 (1992). In cases such as this one where the asserted use is not inherently beneficial to the public good (such as a school or a hospital), the applicant's proof of "positive criteria" requires a showing that special reasons exist to grant the use variance. See N.J.S.A. 40:55D-70d. These "special reasons" are defined by the general purposes of the zoning laws, as codified in N.J.S.A. 40:55D-2. Burbridge v. Mine Hill, 117 N.J. 376, 386 (1990). They include, among other things, the promotion of health and safety, the prevention of sprawl, and the creation of a desirable visual environment. Ibid. The asserted positive criteria must be site-specific, in that the applicant must show that the proposed use is "peculiarly fitted to the particular location for which the variance is sought." Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268, 279 (1967). In the forty years since Kohl was decided, that requirement has not changed. Medici v. BPR Co., 107 N.J. 1, 18 (1987). Meanwhile, the "negative criteria" requirement of subsection d incorporates two distinct, but related, forms of proof. First, an applicant must show that the non-conforming use of the property will not cause "substantial detriment to the public good." N.J.S.A. 40:55D-70d. The focus of this criterion is also site-specific, and requires an assessment of the proposed variance's impact on the surrounding properties, and whether it will cause "damage to the character of the neighborhood." Medici, supra, 107 N.J. at 22 n.12. That damage must be substantial to weigh

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against the proposed variance. See Yahnel v. Bd. of Adjustment of Jamesburg, 79 N.J. Super 509, 519 (App. Div.), cert. denied, 41 N.J. 116 (1963). A second demonstration required under the negative criteria prong of subsection d is a showing that the proposed non-conforming use "will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70d. The burdens involved in making this showing were substantially increased by the Supreme Court in Medici. Specifically, since Medici, applicants seeking a use variance must now offer "an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici, supra, 107 N.J. at 21. Such "enhanced proof" must "reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Ibid. The Supreme Court's imposition of more rigorous proofs for the negative criteria of proposed use variances in Medici grew out of the passage of the MLUL in 1975. Id. at 18-19. Notably, the MLUL required for the first time that a municipal planning board re-examine its master plan and zoning ordinance at least once every six years and report its findings and recommended revisions to the governing body. Id. at 19; N.J.S.A. 40:55D-89. The MLUL likewise requires that all zoning boards conduct annual reviews of their decisions on variances and report their findings and recommendations to the governing bodies. Medici, supra, 107 N.J. at 19; 152 N.J. 309, 327 (1998). Nevertheless, because use variances "should be granted only sparingly and with great caution since they tend to impair sound zoning," Kohl, supra, 50 N.J. at 275, a reviewing court accords less deference to the grant of a use variance than the denial of one. Saddle Brook Realty, supra, 388 N.J. Super. at 75. Indeed, following Medici, a board of adjustment's discretion to grant use variances has been considerably narrowed. Medici, supra, 107 N.J. at 23. Although the Court in Medici noted that municipal bodies continue to have "'wide latitude in the exercise of delegated discretion,'" the Court emphasized that reviewing judges have the duty to "insure that the exercise of discretion by boards of adjustment faithfully reflects the statutory standards ordained by the [L]egislature." Ibid. (quoting Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 296 (1965)). Guided by these well-established principles, we have carefully examined the record as a whole, and conclude from our review that the trial court correctly invalidated the variances granted to the developer in this case. We, therefore, affirm the Law Division's order of July 12, 2006, substantially for the reasons detailed in Judge Conte's well-founded letter opinion. We add only some brief observations. We wholeheartedly concur with Judge Conte's finding that the particular reasons cited in the Board's resolution are insufficient to meet the positive criteria for a use variance under N.J.S.A. 40:55D-70d. First, the destruction of the
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present garage, which does not conform to side yard and rear yard setback requirements, does not justify replacing the single-family home on the site with a duplex. See Degnan v. Monetti, 210 N.J. Super. 174, 185 (App. Div. 1986). The garage can be demolished, and the nonconformity eliminated, with a single-family home. Second, the Board incorrectly relied upon the 1997 recommendation to re-zone the surrounding residential neighborhood to permit two-family dwellings. The Master Plan was never altered by the Council, despite that recommendation. We must infer that the elected representatives of the governing body, reflecting the will of the citizens of Cliffside Park, do not wish to re-zone the borough as the Planning Board had recommended a decade ago. The third reason cited by the Board, the fact that the developer also sought a bulk variance from the R-1 zone's 5000 square foot minimum lot area, has no logical bearing on the merits of allowing a non-conforming use for the property. We also agree with the trial judge that the Board did not adequately support its determination that the proposed duplex would create an aesthetic improvement, any more than a conforming new single-family home on this site would. The trial judge also had an ample basis to overturn the Board's finding that the proposed variances met the negative criteria required under N.J.S.A. 40:55D-70d. The judge determined that the Board failed to reconcile the proposed duplex's incompatibility with the exiting zoning scheme in Cliffside Park. In this regard, the Board rested heavily on the testimony of the sole expert who testified, the developer's architect/planner. In doing so, however, the Board gave short shrift to the eight neighbors who testified and their collective observations about worsening traffic patterns, increasing congestion, and the diminution of available on-street parking. The Board essentially swept aside the residents' objections by adopting the expert's opinion that the neighborhood was "evolving" from one of predominantly single-family homes to one that includes many two-family homes. The trial judge appropriately recognized that such recent patterns have largely been caused by the Board itself, in granting several other variances for duplexes on the same street. The Board should not be permitted, through such a bootstrap approach, to justify future deviations from the zoning ordinance by pointing to its own repeated failures to enforce the ordinance on nearby properties. On the whole, we are satisfied that the trial judge nullified the Board's resolution for sound reasons, and that the judge did not deprive the Board of the qualified degree of deference it is owed, under Medici and other pertinent case law, when it grants a variance for a non-conforming use. The Law Division's order invalidating the variances in question is therefore affirmed. We consolidate the two appeals for the purposes of this opinion.
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The sixth Board member, Joseph Capano, recused himself from the December 2005 proceedings on the application because he lives within two hundred feet of the subject property. For reasons that are not apparent from the record, Capano did vote for the resolution granting the variances at the Board's next meeting in January 2006. In light of our disposition of the appeal, Capano's participation in the vote on the resolution is inconsequential. The judge independently found that Board member Capano, because of his proximity to the subject premises, should have recused himself from not only the Board's proceedings on the application but also from voting on the implementing resolution at the Board's next meeting. The Board maintains that the recorded assent of Board member Capano to the implementing resolution was simply ministerial and that any error arising out of his January 2006 vote is harmless. Because we agree with the trial judge that the developer substantively failed to establish the statutory prerequisites for a subsection "d" variance, we need not comment on the recusal issue and thus do not address that aspect of the judge's decision. (continued) (continued) 20 A-0249-06T3 November 27, 2007 0x01 graphic

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