                                NOT FOR PUBLICATION WITHOUT THE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-3452-17T2

LARRY PRICE,

          Plaintiff-Appellant,

v.

OZ HOLDINGS, LLC and
UNION CITY ZONING BOARD
OF ADJUSTMENT,

     Defendants-Respondents.
______________________________

                    Argued January 23, 2019– Decided May 22, 2019

                    Before Judges Yannotti and Rothstadt.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Docket No. L-1377-17.

                    Larry Price, appellant, argued the cause pro se.

                    Michael S. Goodman argued the cause for respondent OZ
                    Holdings, LLC (M. Goodman & Associates, PC,
                    attorneys; Michael S. Goodman, on the brief).

                    Gregory F. Kotchick argued the cause for respondent
                    Union City Zoning Board of Adjustment (Durkin &
             Durkin, LLC, attorneys; Gregory F. Kotchick, of counsel
             and on the brief).

PER CURIAM

      Plaintiff Larry Price appeals from the Law Division's February 23, 2018

judgment dismissing his complaint in lieu of prerogative writs, which was entered

after the trial judge found that defendant Union City Zoning Board of Adjustment

(the Board) did not act arbitrarily, capriciously, or unreasonably in granting the

zoning relief sought by defendant OZ Holdings, LLC (OZ). The subject applications

sought simultaneous subdivision and site plan approval for a lot fronting two

perpendicular streets, one in a commercial zone and the other in a residential zone,

and then variances for the newly-created lot to allow construction upon it of a three-

family home.

      On appeal, among other arguments, plaintiff contends that the trial judge's

decision should be remanded under Rule 1:7-4 because he did not address the critical

issue of whether the hardship relied upon by the Board in granting OZ relief was

self-imposed by the subdivision, thereby warranting a reversal of the Board's

determination. Defendants urge that the trial judge's decision was correct, but if it

was deficient, we should exercise our original jurisdiction to correct any

deficiencies. For the reasons that follow, we vacate the judgment and remand for

further findings.


                                          2                               A-3452-17T2
      The subdivision approval that the Board granted OZ created two lots from one

that was already improved by a commercial building situated on Bergenline Avenue

in Union City. The one parcel had been two lots in the past but merged when their

ownership became unified many years earlier.              Although one parcel, the

municipality historically treated the property for tax purposes as two lots,

designating them as Lots 45 and 46 in Block 254 on the municipal tax map. The

entire parcel was located within the municipality's Commercial Neighborhood (C-

N) district, in which residential structures are not permitted.

      The subdivision separated the one parcel into Lot 46 fronting Bergenline

Avenue, commonly known as 4313-4315 Bergenline Avenue, and Lot 45, the new

lot, fronting Lincoln Street and designated as 506 Lincoln Street. Lincoln Street is

primarily residential in character and contains several three-family homes.

Properties that front Lincoln Street are located in the city's residential (R-1) zone.

      The Board approved OZ's subdivision and variance applications at hearings

conducted on the same day.           OZ's application sought variances from the

municipality's Land Use Ordinance that required lots in the C-N zone to be 2500

square feet, one hundred feet in depth, and to have a twenty-foot rear setback and

building coverage not to exceed eighty percent. Variances were required for Lot 45

because it was only seventy-two feet deep, contained 1875 square feet, violated the

rear setback requirements, and because the proposed home would cover one hundred

                                           3                                A-3452-17T2
percent of the lot. Accordingly, OZ sought relief from the minimum lot area,

minimum lot depth, and minimum rear yard requirements.

      At the hearing, OZ's counsel explained that the variances OZ sought to

construct the three-family home had been approved by the Planning Board in 2007,

but at that time, OZ failed to request subdivision approval. An architect, Orestes

Valella, testified as to OZ's proposed building plan, including its design and

dimensions. Valella noted that the only changes that had been made to the plans that

were approved in 2007 related to the side yard dimensions, and that OZ intended to

meet the conditions imposed on them at the time of that approval.

      Richard Schommer, a licensed professional planner, also testified for OZ.

Schommer explained the history of the subdivided lot and that commercial use on

Lot 45 would be inappropriate because it fronts a residential street in a residential

zone, with similar lots. He stated that there would be no negative impact caused by

the variance because the construction of a three-family residence would be

consistent with the character of the neighborhood. Regarding the bulk variances,

Schommer stated that the lot sizes along Lincoln Street are uniform and that the

proposed structure on Lot 45 would be consistent with other properties on the street.

      Significantly, Schommer explained that Lot 45's dimensions created a

hardship and the application dealt "with certain limitations and hardships with

respect to the dimensions of the property, that [OZ] can't overcome [and] are not

                                         4                               A-3452-17T2
created by the applicant."      Later during questioning by plaintiff, Schommer

addressed the question of whether the hardship he referred to was "self-created,"

without addressing whether the subdivision itself created the hardship. He stated the

following:

             I think because if you look at the dimensions of the total
             property, in fact, it did exist as two lots previously.
             They . . . were merged. If you look at the survey, it's
             actually identified as two separate tracts, with two separate
             lot numbers, and two different . . . tracts. That's how it . . .
             did exist at one point in time. I think that's the appropriate
             configuration for this property. Being L shaped is unusual.
             You don't see that in the neighborhood. If you look at
             other properties, they're all rectangular. Subdividing it in
             the manner proposed is consistent with the other lots along
             Lincoln Street. It's consistent with other properties
             along . . . Bergenline. So, I think it actually makes the
             properties more consistent with the neighborhood, albeit
             we do need relief because the dimensions of the property
             don't allow us to have a fully conforming . . . lot.

      On February 16, 2017, the Board issued a resolution granting the subdivision

approval OZ sought, based on its consideration of Valella's and Schommer's

testimonies and its findings that there were no negative criteria associated with the

project and the subdivision would not conflict with the character of the neighborhood

because the other lots fronting Lincoln Street were similar in size. The Board stated

that "special reasons" existed for the requested relief; that the relief could be granted

without substantial detriment to the public good and without substantially impairing

the intent and purpose of the zoning plan; and that the facts, testimony, and exhibits

                                            5                                   A-3452-17T2
reviewed were in accordance with the requirements of the Municipal Land Use Law

(MLUL), N.J.S.A. 40:55D-1 to -163.

      On that same day, the Board issued a second resolution granting the site plan

and variance approvals OZ sought. The Board again cited Valella's unrefuted

testimony regarding the site plans and found that no negative criteria were associated

with the project; the proposed use would be more conforming with the character of

the neighborhood; and that OZ was modifying its previously-approved plans to

accommodate larger side yards for the westerly neighbor and the egress to the store

on the adjacent property. Also, the Board again stated that "special reasons" existed

for the requested relief, that such relief could be granted without substantial

detriment to the public good and without substantially impairing the intent and

purpose of the zoning plan, and that the application satisfied the requirements of the

MLUL. Notably, in neither resolution did the Board make any findings as to whether

OZ created the hardship it relied upon in support of its application.

      On April 4, 2017, plaintiff filed a four-count complaint in lieu of prerogative

writs, seeking to set aside the Board's determination. Plaintiff contended in his

complaint that the Board's approval of OZ's applications was overall arbitrary,

capricious, or unreasonable. Specifically, in count one, plaintiff alleged that the

Board's approval of "[t]he subdivision create[d] an undersized [new] lot and

render[ed] the existing commercial site nonconforming," which was not permissible.

                                          6                               A-3452-17T2
In the second count, he alleged that because "[t]he resulting [new] lot is both

undersized and lacks the required lot length [its] development require[d] c(1)[1]

hardship variances . . . [b]ut the hardship [was] self-created," warranting the denial

of the application for development as a matter of law. In the third count, the

complaint alleged that the Board's approval of the required "(d)(1)"2 use variance

was improper because OZ failed to establish "special reasons" and the Board failed

to require OZ to demonstrate "an enhanced quality of proof and [make] clear and

specific findings to reconcile the proposed use variance with [the] zoning ordinance's

omission of the use from those permitted."

       At trial, plaintiff argued that the hardship upon which the Board relied was

self-created and granting subdivision approval resulted in making Lot 46 a

nonconforming lot. Defendants argued that the lots were originally merged in error

and that Lot 45 was intended to be a residential property and should have been placed

in the R-1 rather than C-N zone. Defendants also explained that Lot 45 could not be

developed for commercial purposes because it fronts a residential street. OZ also

contended that it demonstrated all of the required proofs through Schommer's

testimony. The parties also argued the applicability of various holdings to the issues




1
    N.J.S.A. 40:55D-70(c)(1)
2
    N.J.S.A. 40:55D-70(d)(1)
                                          7                               A-3452-17T2
before the court, including the Supreme Court's decision in Price v. Himeji, 214 N.J.

263 (2013).

      The trial judge issued a six-page written decision on January 19, 2018

explaining his fact findings and conclusions of law in support of his dismissal of

plaintiff's complaint with prejudice.       After giving a brief recitation of OZ's

application, the Board's approval, and the trial court's standard of review, the judge

summarized the parties' arguments. In that summary, the judge observed that the

parties agreed that under the local zoning ordinances, Lot 45 was nonconforming.

He explained OZ maintained that "the newly created lot should have been in the R

Zone (residential) and not in the CN Zone [and] there are mitigating factors to offset

any violations of the rear yard setbacks [for the new lot]." Turning to plaintiff's

allegation that any hardship was self-created, the judge stated the following:

                     Plaintiff argues the hardship[s for] which O[Z]
              seeks the variances for this property are self-created and
              therefore, under the case law, are not entitled to relief.
              Plaintiff cites to [Ten Stary Dom P'ship v. Mauro, 216 N.J.
              16 (2013)].

                    OZ, . . . does not directly address the issue of a self-
              created hardship. The [c]ourt can infer from the record
              and the submissions, that O[Z] argues there was not self-
              created-hardship, as a portion of the property did not
              belong in the CN Zone.

      The judge also described plaintiff's final contention about "O[Z] fail[ing] to

put forth any positive or negative criteria proofs that would allow for granting of the

                                            8                                  A-3452-17T2
within application," and OZ's response to that argument. The judge then stated the

issues he was going to address in the remaining approximately one-page of his

decision would be "[f]irst, was there enough evidence for [the Board] to grant this

application?     Second, did [the Board] act in an arbitrary and capricious or

unreasonable manner?"

      Without specifically identifying any of the evidence testified to by Schommer

and considered by the Board, or addressing plaintiff's contention that the hardship

OZ relied upon was self-created, the judge explained his findings and conclusions.

He stated the following:

                      The [c]ourt is convinced there was enough evidence
               before [the Board] for [it] to grant O[Z]'s application. . . .
               Schommer submitted testimony establishing the standard
               and the evidence for [the Board] to grant the bulk variance
               pursuant to N.J.S.A. 40:55D-70(c)(1). In . . . Schommer's
               testimony, he opined there was no negative impact to the
               community, the property on [the new lot] was not suited
               for the particular zone as [the s]treet is a predominantly
               residential street and the granting of this application would
               not be inconsistent with the purpose of the CN Zone. [He]
               also submitted other testimonial evidence . . . before [the
               Board], which does not need mentioning here.

                     The [c]ourt finds there was enough evidence before
               [the Board] for the granting of this application. . . .

                      Consequently, [the Board] had enough evidence
               and determined that evidence was credible, the [c]ourt will
               not set aside [the Board's] determinations because it would
               substitute its judgment for a local board that is familiar
               with the community in which [it] serve[s].

                                             9                                  A-3452-17T2
      The judge concluded by finding that the Board's decision was not arbitrary,

capricious, or unreasonable. This appeal followed.

      "When reviewing a trial court's decision regarding the validity of a local

board's determination, 'we are bound by the same standards as was the trial court.'"

Jacoby v. Zoning Bd. of Adjustment of Borough of Englewood Cliffs, 442 N.J.

Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., LLC v. Bethlehem Twp.

Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)). A court "may not

substitute its judgment for that of the board unless there has been a clear abuse of

discretion." Himeji, 214 N.J. at 284. We "give deference to the actions and factual

findings of local boards and may not disturb such findings unless they were arbitrary,

capricious, or unreasonable."    Jacoby, 442 N.J. at 462.      A municipal entity's

"decision is 'invested with a presumption of validity,'" 62-64 Main St., LLC v. Mayor

of City of Hackensack, 221 N.J. 129, 157 (2015) (quoting Levin v. Twp. Comm. of

Bridgewater, 57 N.J. 506, 537 (1971)), and "[t]he challenger of municipal action

bears the 'heavy burden' of overcoming this presumption . . . ." Vineland Constr.

Co. v. Twp. of Pennsauken, 395 N.J. Super. 230, 256 (App. Div. 2007) (quoting

Bryant v. City of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998)). The

actions of a zoning board must be based on "substantial evidence." Ibid. As long as

the board's actions are "supported by substantial evidence in the record, [we are]

bound to affirm that determination." 62-64 Main St., 221 N.J. at 157.

                                         10                                A-3452-17T2
      We turn first to the trial judge's written decision. We agree with plaintiff that

the trial judge's findings and analysis of the applicable provisions of the MLUL as

they related to the Board's decision were inadequate. Other than vague references

to the portions of Schommer's general testimony that the trial judge found to be

"enough evidence" and "worth mentioning," the judge's terse decision did not satisfy

Rule 1:7-4's requirement for a clear articulation of a judge's findings of fact and

conclusions of law.

      The Rule requires that a judge "by an opinion or memorandum decision, either

written or oral, find the facts and state its conclusions of law thereon in all actions

tried without a jury . . . ." R. 1:7-4. "When a trial court issues reasons for its

decision, it 'must state clearly [its] factual findings and correlate them with relevant

legal conclusions, so that parties and the appellate courts [are] informed of the

rationale underlying th[ose] conclusion[s].'" Avelino-Catabran v. Catabran, 445 N.J.

Super. 574, 594 (App. Div. 2016) (alterations in original) (quoting Monte v. Monte,

212 N.J. Super. 557, 565 (App. Div. 1986)). "[A]n articulation of reasons is essential

to the fair resolution of a case." O'Brien v. O'Brien, 259 N.J. Super. 402, 407 (App.

Div. 1992). "Naked conclusions do not satisfy the purposes of R[ule] 1:7-4." Curtis

v. Finneran, 83 N.J. 563, 570 (1980). Accord Gnall v. Gnall, 222 N.J. 414, 428

(2015). A judge "does not discharge [his] function simply by recounting the parties'




                                          11                                 A-3452-17T2
conflicting assertions and then stating a legal conclusion . . . " Avelino-Catabran,

445 N.J. Super. at 595.

      When a judge does not properly state his or her findings and conclusions, a

reviewing court does not know whether the judge's decision is based on the facts and

law or is the product of arbitrary action resting on an impermissible basis. See

Monte, 212 N.J. Super. at 565. "Meaningful appellate review is inhibited unless

the judge sets forth the reasons for his or her opinion." Giarusso v. Giarusso,

455 N.J. Super. 42, 53-54 (App. Div. 2018) (quoting Strahan v. Strahan, 402

N.J. Super. 298, 310 (App. Div. 2008)). Failure to do so therefore "constitutes a

disservice to the litigants, the attorneys and the appellate court." Ricci v. Ricci, 448

N.J. Super. 546, 575 (App. Div. 2017) (quoting Curtis, 83 N.J. at 569-70).

      Not only did the trial judge here not provide sufficient reasoning for his

decision as to the matters he addressed, he never addressed issues raised by plaintiff's

complaint. For example, he did not address whether the hardship OZ relied upon

was self-imposed, which if true, could preclude any entitlement to a variance under

N.J.S.A. 40:55D-70(c)(1). See Ketcherick v. Borough of Mountain Lakes Bd. of

Adjustment, 256 N.J. Super. 647, 653-56 (App. Div. 1992).

      It is beyond cavil that a "(c)(1) variance requires a showing of hardship related

to the physical characteristics of the land or the existing structure." Jacoby, 442 N.J.

Super. at 470. The hardship "must arise out of the specific condition of the property."

                                          12                                A-3452-17T2
Ibid. In determining whether a property owner is entitled to a variance under

N.J.S.A. 40:55D-70(c)(1), "[i]t is appropriate to consider first the origin of the

existing situation. If the property owner or his predecessors in title created the

nonconforming condition, then the hardship may be deemed to be self-imposed."

Commons v. Westwood Zoning Bd. of Adjustment, 81 N.J. 597, 606 (1980); accord

Jock v. Zoning Bd. of Adjustment of Twp. of Wall, 184 N.J. 562, 590-91 (2005).

See also Branagan v. Schettino, 100 N.J. Super. 580, 587-88 (App. Div. 1968);

George F. Barnes Land Corp. v. Bd. of Adjustment of Twp. of Wyckoff, 174 N.J.

Super. 301, 303-04 (App. Div. 1980) (addressing self-imposed hardship created by

owner's subdivision). A self-imposed hardship may warrant the denial of the

application. Jacoby, 442 N.J. Super. at 470 (citing Jock, 184 N.J. at 591). The

applicant has the burden of establishing that the hardship was not self-created.

Commons, 81 N.J. at 607.

      Our review of the record indicates that the Board never addressed the issue of

self-created hardship. As the trial judge observed, OZ never responded to plaintiff's

argument that the subdivision created a self-imposed hardship. And, other than

identifying the contention, the trial judge never addressed the issue. The Board, in

failing to address the issue, ignored its obligation to make specific findings of fact

and conclusions of law when it grants a variance. See Medici v. BPR Co., 107 N.J.

1, 23 (1987); Smith v. Fair Haven Zoning Bd. of Adjustment, 335 N.J. Super. 111,

                                         13                                A-3452-17T2
123 (App. Div. 2000). And, by also remaining silent about the claim in his decision,

the judge did not satisfy his obligation under Rule 1:7-4.

       The judge similarly did not make any mention of plaintiff's contentions about

OZ failing to meet the requirements for a (d)(1) use variance. See N.J.S.A. 40:55D-

70(d)(1); see also Himeji, 214 N.J. at 297-98; Medici, 107 N.J. at 4; Scholastic Bus

Co. v. Zoning Bd. of Fair Lawn, 326 N.J. Super. 49, 56 (App. Div. 1999). The grant

of a use variance requires "detailed factual findings" by the Board, which a trial

judge must consider in determining if the variance was properly granted. Himeji,

214 N.J. at 288. No such analysis occurred here. In fact, in his legal conclusions,

other than a passing reference to one section of the MLUL, the judge did not discuss

the applicability of any other statutes or case law, including those argued by the

parties.

       Under these circumstances, we are constrained to vacate the trial judge's

judgment and remand for reconsideration and new findings of fact and conclusions

of law. If the trial judge determines upon further reflection that the Board's findings

were deficient, a remand to the Board is a possible solution.

       We also are convinced that the trial court should in the first instance make the

required findings of fact and conclusions of law. This is not one of those rare cases

in which we should exercise our original jurisdiction under Rule 2:10-5. Tomaino

v. Burman, 364 N.J. Super. 224, 234-35 (App. Div. 2003)) (stating our "original

                                          14                                A-3452-17T2
factfinding authority must be exercised only with great frugality and in none but a

clear case free of doubt").

      Judgment vacated. The matter is remanded to the trial judge for further

proceedings consistent with our opinion. We do not retain jurisdiction.




                                        15                                A-3452-17T2
