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Weiner v. Zoning Board of Adjustment of Borough of Glassboro

Decided: October 29, 1976.

LEON N. WEINER & ASSOCIATES, INC. AND SPENCER C. OSSMAN, PLAINTIFFS-RESPONDENTS, AND THE HOUSING AUTHORITY OF THE BOROUGH OF GLASSBORO, PLAINTIFF-INTERVENOR-RESPONDENT,
v.
THE ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF GLASSBORO, AN AGENCY OF A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT



Carton, Kole and Larner. The opinion of the court was delivered by Larner, J.A.D.

Larner

Plaintiff Leon N. Weiner & Associates, Inc. (Weiner) applied to the Zoning Board of Adjustment of Glassboro (board) for a section(d) variance (N.J.S.A. 40:55-39(d)) to permit the construction of a 40-unit housing development for senior citizens. The board held a plenary hearing, after which it denied the application. Plaintiff sought relief by an action in lieu of prerogative writs which culminated in a judgment of November 10, 1975 reversing the board's denial and directing it to recommend to the borough council that it grant the variance as sought by plaintiff.

Subsequent to the board filing a notice of appeal, other activity took place at the trial and local levels. On January 9, 1976 the trial judge denied a motion to stay the judgment and implemented the judgment by directing the board to act on the court's order at its next meeting on January 21, 1976. On the latter date the board complied by recommending the variance to the borough council. On February 10, 1976 the council failed to grant the variance and remanded the matter to the board. Upon further application to the

court, another order was entered on May 14, 1976 to the effect that the board's action was to be considered as an affirmative recommendation of the variance. Thereafter, the Council adopted a resolution rejecting the board's recommendation, and that is now the subject matter of a pending action against the borough council.

Since the latter litigation is not before us and the borough is not a party to this appeal, we shall consider the matter strictly as an appeal from the judgment overruling the denial of the variance by the board.

Plaintiff is a developer with an option to purchase a tract of land containing 2.92 acres in the R-3 zone of the borough of Glassboro. This zone is designated in the borough ordinance as a district for one and two-family residences with the following area and bulk regulations pertinent to plaintiff's application: (1) minimum area of 5,000 square feet per dwelling unit, (2) 50-foot frontage per dwelling unit, and (3) one parking space for each dwelling unit.

Plaintiff entered into this project through a proposal to the Glassboro Housing Authority to construct on the site a senior housing development under a plan adopted pursuant to federal regulations promulgated by the Department of Housing and Urban Development (HUD). Under this plan the developer purchases the land and constructs the project in accordance with specifications approved by the Authority, and HUD and conveys the same to the Authority which thereafter owns and operates the housing facility.

In view of the fact that the proposed plan violates several ordinance limitations applicable to the R-3 zone, plaintiff's application sought multiple variances. It requested permismission to construct a cluster-type housing development with bulk variances relating to the number of dwelling units in a building, reduction of the floor space per dwelling unit, elimination of the minimum frontage requirement and reduction in available parking spaces.

In reversing the determination of the board the trial judge held that the proposed use for senior citizen housing constitutes

a valid "special reason" under N.J.S.A. 40:55-39(d) and that, as a consequence, the granting of the requested bulk variances is "implicit in the granting of the use variance." In addition, it concluded that the board's determination that the negative criteria of the statute were not met was unwarranted on the record before the board.

The board concedes in its resolution and in its appellate argument that there is a need for additional senior citizen housing in the community and that such a use through semipublic accommodations is an appropriate basis for a special reason variance. DeSimone v. Greater Englewood Housing Corp. No. 1 , 56 N.J. 428, 442 (1970). The central theme of its position, however, is that the applicant failed to bear the burden of proving compliance with the ...


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