FEMA Amendments to Base Floor Elevation Requirements, When Minor, Do Not Necessarily Give Rise to Hardship Showing for Height Variance Says NJ App Div

In its recent decision in Richmond URF, LLC v. Zoning Board of Adjustment of the City of Jersey City, the Appellate Division held that a minor alteration in base floor elevation requirements in the wake of FEMA’s amendments to the regulations after SuperStorm Sandy does not necessarily give rise to showing a hardship in support of a height variance under N.J.S.A. 40:55D-70(d)(6).

In Richmond URF, LLC, the applicant, the owner of a vacant lot in the Van Vorst Historic District of Jersey City, sought a height variance pursuant to N.J.S.A. 40:55D-70(d)(6) to construct a 48.5 foot, four-story, four-unit townhouse building. Buildings of four stories and 40 feet are permitted in the zone. In support of its application, applicant’s experts testified that he faced a hardship justifying a height variance because, in the wake of SuperStorm Sandy, the Federal Emergency Management Agency (“FEMA”) amended its regulations to require that the first habitable floor of a building be 13 feet above sea level in this area of Jersey City – two feet higher than was required before the amendments.

The Jersey City Zoning Board of Adjustment (“ZBA”) approved the application and Richmond URF, LLC, the objector and the owner of an adjacent three-story building, filed a complaint in lieu of prerogative writs challenging grant of the variance, which the Law Division affirmed. The Appellate Division also ultimately affirmed the grant of the variance, but declined to do so on the basis of hardship. Applying the standard declared in Grasso v. Borough of Spring Lake Heights, the Appellate Division did not find persuasive the applicant’s argument that the amended FEMA regulations produced a hardship. The court emphasized that the amended regulations “increased the required elevation of the first habitable floor by only two feet,” and that “[i]n any event, the increased elevation of the first habitable floor did not prohibit [the applicant]’s ‘utilization of the property for a conforming structure’ of three floors or less.” Recognizing that applicant’s FEMA-based argument was also inherently rooted in the argument that the applicant required certain square footage for maximum profitability, the Appellate Division noted that the applicant’s “inability to make the most profitable use of the Property, without building a fourth story, is not sufficient to show hardship in a (d)(6) variance application.” Consequently, for these reasons, and because the testimony from both applicant’s and the objector’s experts indicated that the applicant could have built a townhouse that would have conformed to the zone requirements, the Appellate Division declined to affirm the variance on the basis of hardship.

Ultimately, the court affirmed the grant of the variance on the basis of the proposed building’s consistency with the surrounding neighborhood. The applicant’s experts, and the ZBA’s Senior Planner, provided extensive testimony establishing that the building would not be inconsistent with the surrounding neighborhood. The objector argued that the applicant needed to show additional proofs in light of the Appellate Division’s recent decision in Jacoby v. Zoning Board of Adjustment of the Borough of Englewood Cliffs, but the court held that such showing was not required because the proposed building “did not substantially exceed the local height restriction.”

The court also rejected the objector’s argument that applicant was required to perform a “computer-generated ‘shadow study,’” noting that the objector “produced no authority, nor can we find any, that requires such a ‘shadow study’ before a zoning board grants a height variance.” Furthermore, the court emphasized, the applicant provided the testimony of an architect and a planner establishing that the building’s shadows would not unduly burden the surrounding area, and that this testimony was more specific and persuasive than the objector’s expert’s comment that the building’s height was “going to shadow in some way, shape or form . . . somewhere at some point.”

While Richmond URF, LLC does not foreclose the possibility that FEMA’s amendments to the base floor elevation requirements after SuperStorm Sandy may give rise to a showing of hardship for some properties, it does make clear that minor changes in the requirements, alone, are insufficient to evidence hardship. Whether a substantial increase in base floor elevation, in the absence of a corresponding amendment to a local ordinance’s height requirements, may constitute hardship for purposes of a height variance is yet to be established.