On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3456-03.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Kestin,*fn1 Lefelt and Alley.
The North Brunswick Zoning Board of Adjustment granted use and bulk variances to Kaplan Companies to permit the construction in the Township's R-2 zone of a luxury apartment building for active senior citizens. The Township of North Brunswick sued Kaplan and the Board, claiming that by granting the variances the Board had usurped the Township's exclusive zoning power. Kaplan now appeals from Judge Hurley's judgment in favor of the Township, reversing the Board's grant of the variances. We affirm.
Here are the facts. Kaplan hoped to construct in the Township's R-2 zone a four-story, luxury, apartment building with eighty-five units, and an average height of fifty-three and one-half feet, for active, affluent adults over the age of fifty-five. The proposed site for the building was a 3.66-acre oblong lot located on the eastbound side of a collector roadway. The density of the proposal would be 23.22 units per acre. The building, when constructed, would appear much like an upscale hotel with a main entrance lobby containing a concierge station, central corridors, two elevators, a fitness center, activity rooms, and secure parking. The building was to have 163 parking spaces, ninety-nine of which would be under the building.
According to the Township's Master Plan, however, only single-family detached homes of no more than thirty feet in height were permitted in the R-2 zone, and no more than 2.9 homes could be built per acre. The only other housing developments in the Township that are built to a density that exceeds thirteen units per acre are the Township's two low income housing projects, both of which are incorporated into the Township's Fair Share Plan for affordable housing. Additionally, 180 parking spaces were required under the Master Plan for an eighty-five unit building. Therefore, Kaplan sought a use variance, plus bulk variances for building height, lot density, and requisite parking.
Without finding the use inherently beneficial, the Board, in February 2003, granted the requested variances, finding that the proposed use was, among other things, uniquely suited to the location, an ideal transitional use between the balance of the R-2 zone and the nearby industrial uses, beneficial for the community, and aesthetically pleasing. In granting the variances, the Board ignored the zoning history of this particular lot.
In 1985, the subject property had been zoned for transitional mixed uses such as multi-family dwellings of up to six units per acre. When the Master Plan was updated in 1999, however, this lot was one of twenty-one lots comprising a twenty-four-acre area specifically designated for future density reduction to avoid the potential construction of numerous small apartment buildings on narrow, deep lots. The entire twenty-four-acre area, including the subject site, was ultimately rezoned R-2 in 2002.
Based on this history, Judge Hurley found "[t]he grant of the variance [was] clearly contrary to the intent and purpose of the Township's Master Plan and zone plan." "The overall effect of the variance is to alter the character of the area contrary to the plan of the governing body. . . . [and] is clearly inconsistent with the intended development scheme of the district." We agree with Judge Hurley and affirm substantially for the reasons he articulated in his June 15, 2004 written decision. We add the following.
A municipal governing body is vested with the ultimate responsibility of establishing the essential land use character of the municipality through the adoption of zoning ordinances that divide the municipality into districts, identify the uses permitted in each district, and impose general limitations on construction. Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 51-54 (1998); Twp. of Dover v. Bd. of Adjustment of Dover, 158 N.J. Super. 401, 411-12 (App. Div. 1978). By contrast, the variance power of a board of adjustment is intended merely to accommodate individual situations where relief from the applicable ordinance is warranted. Paruszewski, supra, 154 N.J. at 53; Twp. of Dover, supra, 158 N.J. Super. at 412.
Ordinarily, the manner in which a board of adjustment exercises its exclusive statutory power is not subject to monitoring by the municipal governing body. Paruszewski, supra, 154 N.J. at 54-55; Twp. of Dover, supra, 158 N.J. Super. at 408-09. The municipal governing body may not judicially challenge the propriety of a particular board decision, provided the board of adjustment has acted within the ambit of its authority. Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment, 154 N.J. 62, 77-78 (1998); Twp. of Dover, supra, 158 N.J. Super. at 409.
However, a municipal governing body may sue to protect the integrity of its own legislatively conferred powers. Twp. of Stafford, supra, 154 N.J. at 76-77; Twp. of Dover, supra, 158 N.J. Super. at 409-10. That is, a municipal governing body may bring suit when a board has exceeded its statutory powers and attempted, through a use variance, to impose its own view as to the most appropriate use or uses for a particular portion of a municipality. Twp. of Dover, supra, 158 N.J. Super. at 409. Indeed, "since '[t]he Municipal Land Use Law . . . [has] eliminated the mandated role of the governing body in granting use variances [under the prior land use law], . . . the need for boards of adjustment to adhere strictly to their limited role in land use administration' has been enhanced." ...