                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5378-15T4

LARRY PRICE,

        Plaintiff-Appellant,

v.

LARRY D'ARRIGO AND UNION CITY
ZONING BOARD OF ADJUSTMENT,

        Defendants-Respondents.

_____________________________________

              Argued September 26, 2017- Decided October 19, 2017

              Before Judges Carroll and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. L-
              0422-16.

              Larry Price, appellant, argued the cause pro
              se.

              Respondents Larry D'Arrigo and Union City
              Zoning Board of Adjustment have not filed
              briefs.

PER CURIAM

        Plaintiff Larry Price appeals from a July 21, 2016 trial

court decision affirming a resolution by the Union City Zoning
Board of Adjustment (Board) granting defendant Larry D'Arrigo's

application for variances to re-build his home and remanding an

issue for the Board's consideration.        On appeal, plaintiff asserts

the same arguments presented to the trial court.          Finding no merit

in plaintiff's claims, we affirm for the reasons set forth in the

trial court decision.

     The following facts are taken from the record.                   D'Arrigo

sought to rebuild his two-family home, which was located on an

undersized non-conforming lot, after a fire destroyed it and five

adjoining homes in 2014.    D'Arrigo's property is in an "R zone,"

which permits one, two, and three family dwellings.                  After his

property burned down, D'Arrigo proposed constructing a two family

dwelling.   Because his lot was undersized, D'Arrigo applied for

variances pursuant to N.J.S.A. 40:55D-70(c). Plaintiff challenged

the application, claiming D'Arrigo's property did not conform to

the lot dimension, yard dimension, height, or off-street parking

requirements of the ordinance, and that D'Arrigo did not apply for

a use variance pursuant to N.J.S.A. 40:55D-70(d)(1).

     The Board approved D'Arrigo's application, which included

several   variances.    Plaintiff       filed   a   complaint   in    lieu    of

prerogative writs challenging the Board's determination.               On July

21, 2016, the trial court found in favor of the Board on all

issues, but remanded the issue of a height variance.

                                    2                                  A-5378-15T4
     In a written opinion, the trial court addressed all of

plaintiff's claims.       At the outset, the trial court rejected

plaintiff's claim that a "d variance" was required because the use

of the property remained the same; D'Arrigo intended to rebuild

his home.

     Plaintiff claimed the Board could not grant a "c variance"

because   the   fire   destroyed   D'Arrigo's   property   and   all   six

structures on the remaining lots, which were also undersized lots.

Plaintiff relied on Feiler v. Fort Lee Bd. of Adjustment, 240 N.J.

Super. 250, 256 (App. Div. 1990), in which we held:

            The power to grant bulk and use variances,
            N.J.S.A. 40:55D-70c. and d.(1), is carefully
            circumscribed. It is limited to adjusting the
            zoning impact on specific pieces of property
            in individual cases for special reasons.
            "[I]f the difficulty is common to other lands
            in the neighborhood so that the application
            of the ordinance is general rather than
            particular," a variance may not be granted.

            [(quoting Lumund v. Bd. of Adjustment of the
            Borough of Rutherford, 4 N.J. 577, 583 (1950),
            certif. denied, 127 N.J. 325 (1991)].

     The trial court distinguished Feiler, noting the application

there sought to "convert an entire low density two-family zone

into a high density residential tower district."       The trial court

noted no factual similarity with the Board's granting of a "c

variance" to D'Arrigo.



                                    3                             A-5378-15T4
       Plaintiff argued that D'Arrigo did not mitigate the hardship

requiring him to seek a variance by purchasing the surrounding

land   to   create    a   conforming   lot.   The   trial   court   rejected

plaintiff's argument, finding D'Arrigo had tried, but was unable

to purchase the surrounding land.             Specifically, D'Arrigo had

inquired whether the adjacent properties were for sale, but they

were not, and plaintiff had not established that an adjacent lot

plaintiff claimed was for sale was listed at the time of the

Board's hearing.

       Plaintiff claimed there was no support for a variance pursuant

to N.J.S.A. 40:55D-70(c)(2), because it was not demonstrated that

the benefits of granting the variance substantially outweighed the

detriment as required by the statute.            The trial court rejected

this claim, noting the planning expert had testified that the

variance would "not impair the intent and purpose of the zoning

plan, and actually furthers the purpose of establishing stable

[sic] neighborhoods, with stable neighbors."

       Plaintiff     argued   the   "negative"   criteria   had     not   been

satisfied pursuant to N.J.S.A. 40:55D-70, which provides:

            No variance or other relief may be granted
            under the terms of this section, including a
            variance   or  other   relief  involving   an
            inherently beneficial use, without a showing
            that such variance or other relief can be
            granted without substantial detriment to the
            public good and will not substantially impair

                                       4                              A-5378-15T4
            the intent and the purpose of the zone plan
            and zoning ordinance.

The trial court rejected this argument noting the Board had

considered the fact there would be a loss of a parking space as a

result of granting the variance, but determined it was outweighed

by the benefit of allowing property owners to rebuild their homes.

     Plaintiff asserted a height variance was required because the

structure D'Arrigo sought to build included three stories and an

attic.   The Union City ordinance permitted structures of three and

one-half stories, but required a height variance for half stories

occupying   more   than   sixty   percent   of   the   story   beneath   it.

D'Arrigo's proposed attic height exceeded seventy four percent of

the floor beneath it.      Thus, the trial court concluded a height

variance was "clearly needed yet was not granted nor sought."

Therefore, the matter was remanded to the Board for consideration.

     "[M]unicipalities are authorized to impose conditions on the

use of property through zoning by a 'delegation of the police

power' that must 'be exercised in strict conformity with the

delegating enactment -- the [Municipal Land Use Law] (MLUL).'"

Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (quoting Nuckel v.

Borough of Little Ferry Planning Bd., 208 N.J. 95, 101 (2011)).

"The MLUL exhibits a preference for municipal land use planning

by ordinance rather than by variance, which is accomplished through


                                    5                               A-5378-15T4
the statute's requirements that use variances be supported by

special reasons, and by proof of the negative criteria."                      Ibid.

(citations omitted).

      Our courts have recognized that "because of their peculiar

knowledge of local conditions," zoning boards "must be allowed

wide latitude in the exercise of delegated discretion."                      Kramer

v. Bd. of Adjustment, 45 N.J. 268, 296 (1965).                           A "board's

decisions enjoy a presumption of validity, and a court may not

substitute its judgment for that of the board unless there has

been a clear abuse of discretion."             Price, supra, 214 N.J. at 284

(citing Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172

N.J. 75, 81 (2002)).        A party challenging that grant or denial of

a   variance      must   "show   that    the   zoning    board's    decision     was

'arbitrary, capricious, or unreasonable.'"               Ibid. (quoting Kramer,

supra, 45 N.J. at 296).

      We   have     carefully    considered      plaintiff's       arguments     and

thoroughly reviewed the record. We are convinced the trial court's

decision     is    supported     by     sufficient      credible   evidence      and

plaintiff's arguments are without sufficient merit to warrant

discussion in a written opinion.                R. 2:11-3(e)(1)(D) and (E).

Therefore,        the    trial    court's      determination        is     affirmed

substantially for the reasons set forth in its July 21, 2016

decision.

                                          6                                 A-5378-15T4
Affirmed.




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