A Controversial Height Variance Falls

Jacoby v. Englewood Cliffs Bd. of Adj., 442 N.J. Super. 450 (App. Div. 2015).  At least since North Bergen Action Group v. North Bergen Tp. Planning Bd., 122 N.J. 567 (1991), height variances have been a source of some puzzlement.  [Disclosure:  I argued the North Bergen Action Group case for the plaintiffs].  This most recent height variance case was a celebrated one, involving as it did a proposed 143.8 foot high office building that LG Electronics, USA, Inc. proposed to construct on the Palisades in Englewood Cliffs, for use as its North American headquarters.  The maximum permitted height in the zone was only 35 feet.  The effect of the proposed tower on the views in and around the Palisades led to objections not only from residents of Englewood Cliffs, but also from environmental groups, public officials, and others from both New Jersey and New York.

The Board of Adjustment granted height and other variances for the project and allowed it to move forward.  Residents of Englewood Cliffs appealed to the Law Division, which upheld the variances.  On further appeal to the Appellate Division, the height variance was reversed and remanded for further proceedings, while the other variances were affirmed.  Judge Fasciale wrote the panel’s opinion.

Judge Fasciale began, of course, with the familiar standard of review of municipal development approval appeals: like the Law Division, the Appellate Division “give[s] deference to the actions and factual findings of local boards and may not disturb such findings unless they were arbitrary, capricious, or unreasonable.”  But “a board’s actions must be based on substantial evidence,” and legal determinations receive no deference.  Instead, they are subjected to de novo review.

Shortly after North Bergen Action Group, the Legislature amended the Municipal Land Use Law (“MLUL”) to designate as a “d variance,” N.J.S.A. 40:55D-70(d)(6), any variance for “a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure.”  In Grasso v. Borough of Spring Lake Heights, 375 N.J. Super. 41 (App. Div. 2004), the Appellate Division explained that applicants for such variances must show “special reasons” (the “positive criteria”) and the absence of “substantial detriment to the public good” and “substantial[  ] impair[ment of] the intent and the purpose of the zone plan and zoning ordinance” from the variance (the “negative criteria”).

As to the positive criteria, Grasso said that an applicant must show “undue hardship” or that the variance did not offend any purposes of the height restriction and “would nonetheless be consistent with the surrounding neighborhood.”  LG did not establish hardship because it did not offer proof that a building at a conforming height, or at a height that “slightly exceeds” the permitted level, could not be built on the property.  Indeed, as Judge Fasciale observed, a conforming building existed on the site when LG applied for the height variance.

The Board’s duty in considering the alternative means of satisfying the positive criteria– consistency with the surrounding neighborhood– “encompasses more than just consideration of the municipality itself or the immediate vicinity of the structure.”  Judge Fasciale quoted another MLUL section, N.J.S.A. 40:55D-2(d), which stated that one purpose of the MLUL was “[t]o ensure that the development of individual municipalities does not conflict with the development and general welfare of neighboring municipalities, the county and the State as a whole.”  He traced that wider geographic lens through caselaw dating back to 1949, well before the adoption of the MLUL.  Also persuasive was a New York appellate decision that had struck down a zoning board’s action for failure to consider the effect of development on the “historic Hudson Valley.”  Here, the Board “insufficiently considered the main building’s effect on the general landscape, as this case involves a well-known, heavily visited, and treasured area”: the Palisades.

Judge Fasciale also found that the Board had fallen short regarding the negative criteria.  There were “no meaningful findings as to the intent and purpose of the zone plan and zoning ordinance as required by Grasso, interpreting N.J.S.A. 40:55D-70(d).”  There was no reference to the Palisades Cliffs or Park or the effect on them, or on the zone plan, of the tower at the requested height.  Thus, the negative criteria were not met either.

LG and some objectors apparently reached an agreement that LG would no longer seek to build a 143.8 foot high structure, though LG would still seek to exceed the 35-foot height limit.  The matter was remanded for further proceedings on whatever height variance application LG might make.