NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant 414 9th Street Associates, Inc., filed a development application with defendant City of Union City Zoning Board of Adjustment (the Board), seeking site plan approval and variances pursuant to N.J.S.A. 40:55D-70(d), for property located at 414 9th Street in Union City (the property). The application indicated the variances were needed for the "legalization of [a] basement apartment."

The evidence adduced at the hearing before the Board revealed that defendant purchased the three-story property in its then-present condition in 2000. Defendant's experts, architect Orestes Valella and planner Jose Izquierdo, explained that the property contained six apartments before a three-bedroom basement apartment was added approximately thirty to forty years earlier, and apparently without approval by the city. The property is located in a residential zone restricted to three family units or less, and therefore, even without the basement apartment, the property was a pre-existing non-conforming use when Union City amended its zoning regulations in March 2012.

Defendant received a citation from the municipal building department regarding the illegal apartment. Defendant caused the apartment to be vacated and applied for the variances, specifically, a d(2) variance, see N.J.S.A. 40:55D-70(d)(2), permitting the expansion of the non-conforming use from six units to seven. Additionally, defendant's site plan anticipated a two-bedroom apartment after renovations, as opposed to the existing three-bedroom apartment. However, since the basement apartment measured only 709 square feet, and the minimum requirement in the zone for a two-bedroom apartment was 750 square feet, defendant also sought a d(5) density variance. See N.J.S.A. 40:55D-70(d)(5).

Valella testified that the renovated basement apartment would have ample living space, with seven foot ceilings throughout the apartment and windows in the kitchen, bedrooms, and living room. He noted that the apartment had ingress and egress from both the street and side alley of the building. Lastly, Valella stated that defendant "[was] not expanding the building .... not making more units .... not altering the bulk, yards, or anything."

Izquierdo described the multiple non-conforming conditions of the property that pre-existed the 2012 zoning changes. He further testified there were eleven other buildings within an approximate 200-foot radius of the property, each of which had six or more residential units. Izquierdo asserted

Izquierdo noted that the property was located in a "sliver of properties that lie within the [residential] zone" between two streets in the "C-N" zone, subject to different zoning regulations. Two buildings that contained twenty-eight and twenty-two units respectively were within the 200-foot radius, albeit within the C-N zone. Izquierdo opined that legalizing the property's seventh apartment supported the "establish[ment] [of] appropriate population densities within ... Union City, taking care of infrastructure, proper light, height and air."

Addressing the d(5) density variance, Izquierdo testified that the particular zone required fourteen parking spaces for a seven unit apartment, whereas defendant provided no parking. However, Izquierdo identified two nearby permit parking lots and one non-permit lot as well as extensive available bus lines and local van services. He opined that because the space taken up by the building and the character of the building would be unchanged, the parking situation was a negligible problem, and "the density of the site [did] not create any substantial negative impact" to the building itself or the neighborhood.

Izquierdo also testified that the application was consistent with Union City's "Re-examination Report," specifically, the municipality's "need for housing," and conformed with the State's "Smart Growth" directive.1 Plaintiff Larry Price cross-examined Izquierdo, but did not testify nor produce any witnesses at the hearing. The five members of the Board who were present voted in the affirmative.

In a memorializing resolution passed unanimously by seven of its members on May 9, 2013, the Board determined that the requested variances could be granted "without substantially impacting [] the public good and without substantially impairing the intent and purpose of the Zone Plan and Master Plan[,]" because:

The Board therefore "determined that special reasons do exist for the relief requested by the applicant[,]" and "the relief requested ... can be granted without substantial detriment to the public good and without substantial[ly] impairing the intent and purpose of the zone plan and zoning [o]rdinance."

Plaintiff filed a complaint in lieu of prerogative writs challenging the Board's approval as arbitrary, capricious and unreasonable. Defendant and the Board filed answers, and the matter was orally argued before Judge Barry P. Sarkisian.

In his comprehensive written opinion that followed, Judge Sarkisian recounted at length the expert testimony before the Board. The judge quoted from the then-recently decided case of Price v. Himeji, LLC, 214 N.J. 263 (2013), as to the appropriate standard of review:

Judge Sarkisian first addressed the Board's grant of the d(2) variance. Citing Burbridge v. Mine Hill, 117 N.J. 376, 384 (1990), the judge noted that N.J.S.A. 40:55D-70(d) permitted the Board to grant a variance expanding a non-conforming use only "[i]n particular cases and for special reasons." Ibid. Judge Sarkisian stated that the Board "`must make two critical findings: (1) that "special reasons" exist for the variance, and (2) that the variance "can be granted without substantial detriment to public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance."'" (quoting Burbridge, supra, 117 N.J. at 384-85 (in turn quoting N.J.S.A. 40:55D-70(d)).

The judge noted that "[t]o determine whether `special reasons' exist for the granting of a variance, courts must look to the purpose of the Municipal Land Use Law (MLUL) to determine what is a special reason[]." See Price, supra, 214 N.J. at 285 ("the term `"special reasons" takes its definition and meaning from the general purposes of the zoning laws'" (quoting Burbridge, supra, 117 N.J. at 386)). Judge Sarkisian found that, based on Izquierdo's testimony, the Board could appropriately find special reasons existed, because the application promoted the goals set forth in N.J.S.A. 40:55D-2(a), (d), and (e).2

The judge then considered whether there was sufficient evidence supporting a finding as to the "negative criteria." He cited the Board's finding that "the project would not conflict with the character of the neighborhood or with the master plan of the city." Based upon the expert testimony, Judge Sarkisian further noted that the basement "apartment has existed for [thirty] to [forty] years" which "evidenced that legalizing it will not substantially impair the intent and purpose of the zoning plan and zoning ordinance." Because the apartment was "located within an already existing building ... there [was] no physical impact on the surrounding area." The judge determined the Board's finding regarding the negative criteria was supported by the record.

Judge Sarkisian then considered the Board's grant of the d(5) density variance. Quoting our opinion in Grubbs v. Slothower, 389 N.J.Super. 377, 389 (App. Div. 2007), the judge observed that a successful applicant for a density variance "`need not demonstrate that the property is particularly suitable to more intensive development in order to prove special reasons under the MLUL.'" Again quoting Grubbs, Judge Sarkisian noted that

Reviewing the expert testimony before the Board, Judge Sarkisian determined that the proposed apartment was of adequate size, only minimally smaller than permitted in the zone, and created no substantial negative impact.

The judge concluded the Board's grant of the two variances was not arbitrary and capricious. He entered an order dismissing plaintiff's complaint, and this appeal followed.

Before us, plaintiff argues the application did not serve any of the statutory purposes of zoning contained in the MLUL, and, even if it did, special reasons in support of a d(2) variance must rest on more than "one or more purposes of zoning." Additionally, plaintiff argues the negative criteria were not met because the variances impaired the zoning ordinances of Union City.

Having considered the arguments in light of the record and applicable legal standards, we affirm substantially for the reasons set forth in Judge Sarkisian's thoughtful opinion. We add only the following.

We reject plaintiff's contention that the application served none of the statutory purposes of zoning cited by the Board or Judge Sarkisian. As the Court has said, "`one or more of the reasons standing alone'" could be legally sufficient for a finding of special reasons. Burbridge, supra, 117 N.J. at 393 (quoting Ward v. Scott, 16 N.J. 16, 21 (1954)). Here, the basement apartment existed prior to the passage of the zoning amendments, and the property itself, even without the basement apartment, was non-conforming. The expert testimony revealed that the intensity of the illegal use was actually being reduced, from three to two bedrooms, and the conditions within the premises were being improved. The evidence supported, at the least, a finding that the variance "promote[d] the public health, safety, morals, and general welfare." N.J.S.A. 40:55D-2(a).

Plaintiff also claims that in order to find "special reasons" exist for the grant of a d(2) variance, the applicant must prove "that a grant of the variance would support a purpose of zoning and also a special qualification depending on which variance is requested." In this regard, plaintiff correctly notes that "[b]ecause nonconforming uses are inconsistent with the objectives of uniform zoning, the courts have required that consistent with the property rights of those affected and with substantial justice, they should be reduced to conformity as quickly as is compatible with justice." Belleville v. Parrillo's, Inc., 83 N.J. 309, 315 (1980). We also agree, if it is plaintiff's contention, that in considering the special reasons supporting the variance, a reviewing court must conduct a site-specific inquiry. Price, supra, 214 N.J. at 289.

However, we disagree to the extent plaintiff argues there are really two prongs of the "special reasons" analysis. Instead, a reviewing court must consider whether "special reasons" exist by considering both the nature of the application and the specifics of the location. Thus, "nonconforming uses may not be enlarged as of right except where the change is so negligible or insubstantial that it does not warrant judicial or administrative interference." Parrillo's, Inc., supra, 83 N.J. at 316 (citation omitted) (emphasis added). When the expansion of a pre-existing, non-conforming use is minor, approval need not be based upon particularly suitability, but may rest on consideration of other grounds, including aesthetics. Burbridge, supra, 117 N.J. at 393. Moreover, site-specific review requires "consider[ation] [of] the relationship between the particular property and the community where it is located." Price, supra, 214 N.J. at 289 (citing Burbridge, supra, 117 N.J. at 395). In our opinion, the testimony before the Board demonstrated the minor nature of the request and its inconsequential effect upon the surrounding community as it existed.

Lastly, plaintiff contends there was insufficient proof regarding the negative criteria. "Proof of the negative criteria requires the applicant to demonstrate ... both that the variance `can be granted without substantial detriment to the public good' and that it `will not substantially impair the intent and the purpose of the zone plan and zoning ordinance[.]'" Price, supra, 214 N.J. at 286 (quoting N.J.S.A. 40:55D-70) (citations omitted).

Plaintiff concedes there was sufficient proof as to the first of the negative criteria, which is assessed by "the effect th[e] granting [of] the variance would have on the surrounding properties." Ibid. (citation omitted). He argues, however, proof as to the second of the negative criteria was lacking. We disagree.

"The proof required for the second of the negative criteria must reconcile the grant of the variance for the specific project at the designated site with the municipality's contrary determination about the permitted uses as expressed through its zoning ordinance." Ibid. (citation omitted). Here, the unrefuted testimony was that the property was a pre-existing non-conforming use, and the illegal basement apartment had existed for decades. While technically an expansion of a non-conforming use because the municipality had never sanctioned the basement apartment's existence, approval of the application created no greater inconsistency with Union City's zoning regulations, nor would elimination of the basement apartment make the property substantially more compliant with those regulations. The Board's conclusion that granting the variance would not substantially impair the municipal zoning scheme was not arbitrary, capricious or unreasonable.

Affirmed.