Bulletin Board Magazine 2021 V4

Legal/Legislative Continued This case highlights the broad power of a local board to interpret and carry out a municipality’s master plan to facilitate the provision of affordable housing. HEIGHTVARIANCE Wainstein v. 8619 Holding Co. This case examines the criteria necessary for successful pursuit of a height variance. 8619 Holding Company, LLC (“Owner”) owned property comprised of four lots (“Property”) in North Bergen Township. The Property was located next to a park and in a zone with a maximum building height of 60 feet. The Owner submitted a site plan application to the Board of Adjustment (“Board”) for approval to construct a mixed used commercial and residential building with a proposed height of 155 feet and sought a height variance. The Board held four public hearings during which the Owner’s architect, planner, and numerous other professionals provided testimony. The architect performed a shadow study to help determine the effects of proposed building height on surrounding neighborhood, and he testified that the height would not negatively impact the neighborhood. The planner testified that although the proposed building height exceeded the height ordinance, it did not violate its purposes. With respect to positive criteria, the planner testified that the height would create a focal point along the Township’s skyline, add diversity to the skyline, and elevate the image and identify of the park. With respect to negative criteria, the planner testified that the height variance could be granted without any substantial detriment to the public or substantial impairment to the Township’s zoning plan. The planner further testified that the step backs incorporated in the building design would mitigate negative height effects on the surrounding area, and the building would not block any scenic

views or create negative shadow effect on adjacent properties. The Board approved the Owner’s application including the height variance citing to the testimony from the hearings and the height- related positive and negative criteria. The Board found that the variance application presented no substantial negative impairment; benefits of the application outweighed any detriment; the purpose of the zoning code would be furthered by facilitating the creation of new housing while maximizing use of the park, adding distinctive and unique architecture to the park area, and minimizing urban sprawl; and the proposed building aligned with the Township’s master plan. Plaintiffs filed a complaint challenging the Board’s approval, claiming that the Board failed to make findings that satisfy the positive and negative criteria required for variance relief. The trial court affirmed the Board’s resolution, determining that the Board reasonably relied on the testimony presented at the hearings to reach its decision and there was no basis to conclude that the resolution was arbitrary, capricious, or unreasonable. The Appellate Division affirmed the trial court’s decision on appeal. The appellate court found that the trial court cited to ample support in the record for the Board’s findings and its conclusion that the proposed height variance satisfied the statutory requirements. This case exemplifies the type of evidence necessary to support a height variance request meeting the required positive and negative criteria.

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