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Hughes v. Monmouth University

October 24, 2006


The opinion of the court was delivered by: Lehrer, P.J.Ch.


Approved for Publication -- June 27, 2007




This action is an appeal of the approval by the Zoning Board of Adjustment of the Borough of West Long Branch (the "Board") of an Application by Monmouth University ("University") to build a 196-bed dormitory residence hall with parking for 126 vehicles; six tennis courts with public restrooms and a 20-space parking lot; and a storm water management basin.

In its Application, the University obtained relief from thirteen requirements of the Borough of West Long Zoning Ordinance. The relief obtained was:

1. A use variance from the requirements of Sections 18-4.1a and 18-6.5e of the Ordinance (the R-22 Low Density Residential Zone District) to permit the proposed development of the Property with the dormitory, parking, tennis courts, public restroom and storm water management facilities.

2. A variance from Ordinance Section 18-6.3e.2 to permit more than one principal structure on a lot.

3. A bulk variance from Ordinance Section 18-6.5b for relief from the requirement that, in any zone, all required yards, open spaces, off-street parking and landscaping be contained within that zone.

4. A bulk variance from Ordinance Section 18-7.4a.3 to permit front yard parking.

5. A bulk variance from Ordinance Section 18-5 to permit a building height 7.5 feet above the maximum allowed height of thirty-five feet.

6. A variance from Ordinance Section 18-6.2 for relief from open space requirements of the Ordinance.

7. A bulk variance from Ordinance Section 18-7.2c to permit a front yard wall or fence more than three feet above ground.

8. A bulk variance from Ordinance Section 18-7.2e to permit installation of a ten-foot high open wire fence within school premises where eight feet is permitted.

9. A bulk variance from Ordinance Section 18-7.2i to permit a fence to be erected so that: "all supporting members are not on the inside surface and shall not face the neighboring property."

10. A use variance from Ordinance Section 18-8.1 to permit expansion of a non-conforming use.

11. A bulk variance from Ordinance Section 18-7.2e to permit the proposed ten-foot high chain link tennis court perimeter fence, whereas a maximum open wire fence height of eight feet is permitted within a public park, playground or school premises.

12. A bulk variance from Ordinance Section 18-7.4a.1 with respect to the twenty-four foot wide driveway proposed.

13. A variance from Ordinance 18-7.4b.1 with respect to required loading spaces.

The subject property, designated as Block 38 and Block 30 on the tax map of the Borough of West Long Branch, is located in the R-22, Low-Density Residential Zone. Block 30 was a farm known as Kilkare Farm ("the Farm") located at the intersection of Pinewood and Beachwood Avenues. The balance of the Property, Block 38 (the North Campus), is located between Beechwood and Cedar Avenues and also bordered by Pinewood Avenue.

Seventeen public hearings were held before the Zoning Board on February 5, 2004; March 4, 2004; April 15, 2004; May 20, 2004; June 10, 2004; September 9, 2004; October 7, 2004; October 28, 2004; December 2, 2004; February 7, 2005; April 28, 2005; May 25, 2005; June 23, 2005; July 28, 2005; August 25, 2005; August 31, 2005; and December 15, 2005.

The Application is a result of the University's plan to provide housing for students who are living off-campus in motel facilities, build a new tennis center for University and community use, and provide for storm water management.

The residence hall is to be placed near existing dormitories in order to cluster student housing within the same area of the campus. All will be buffered from neighboring residential properties.

The testimony indicated the construction of the new residence hall would increase the impervious coverage on campus. As a result, the University proposes to use the property bordering the University campus on Block 30 (the Farm) for the storm water management facility, tennis center, and parking lot. The University believes its plan would be the least intrusive and most compatible with the neighboring residential uses.

In support of its Application, the University presented the testimony of William E. Fitzgerald, P.E., a licensed professional engineer; Richard Nelson, P.E., a licensed traffic engineer; Mykhaylo Kulynych, AIA, a licensed architect; Patricia Swannack, Vice-President for Administrative Services; Paul Phillips, P.P., a licensed professional planner; Moustafa Gouda, Geotechnical Engineer; and William Soukup, a Hydrogeologist Groundwater Modeler.

William E. Fitzgerald described the Application and the scope of the project. The residence hall would be located in the University's primary residential area on the North Campus, would have 196 beds, and be "very similar to the character of the existing residence halls" for the University. The planned parking area for the residence hall would accommodate approximately 126 parking spaces, with a paved surface, drainage, lighting, and landscaping.

As to Block 30 (the Farm), the University is seeking to refurbish an existing barn and to construct six tennis courts for University and public use. The Farm will also include a 20-car parking lot and a detention basin to replace the existing basin on the North Campus. The tennis courts would only be used during daytime hours, and would not be lighted. Mr. Fitzgerald testified that the detention basin is an important use that would be landscaped, open space. It is significantly larger than the existing basin to better handle storm water run-off for the surrounding area.

On February 5, 2004, Mr. Fitzgerald concluded his direct testimony by generally discussing the benefits that will inure to the University and the Borough should the Board grant the Application:

The University has needs, as it has been expressed to me by various members of the administration and its Board of Trustees. We are trying to accommodate the needs in really the only area of the residential campus that is available and the need happens to be a need to have more students live on campus so they come out of private rentals and other residences within the community. . . .

This was designed from an engineering point of view to attempt to mitigate the maximum extent possible or practicable any impacts on traffic and circulation, aesthetics, lighting, impact of site lighting, storm water management, any other impacts associated with a physical design as well as discussions on, as I stated, how to try to accommodate the University's need with a development proposal that was as unobtrusive as possible with respect to intensity in the R-22 zone.

During the course of the hearings, Mr. Fitzgerald further testified as to the University's efforts to address public concern over the tennis center. These concerns were addressed by the reduction of parking spaces and the addition of a public restroom in the footprint of the barn near the proposed tennis courts.

The University also presented the testimony of their traffic engineer, Richard Nelson, who testified that the proposed residence hall would have an "insignificant" impact on traffic flow.

The University's architect, Mykhaylo Kulynych, testified that he designed the new residence hall to be in character with the surrounding neighborhood. Mr. Kulynych also noted that he had attempted to minimize any negative impact of the residence hall, such as the effect of light and mechanical noise, through his design. The proposed residence hall would have the same height, roof lines, and color brick as the existing residence halls.

In describing the University's plans for the barn building, Mr. Kulynych noted that the proposed structure would not expand the square footage of the building itself, but that it would look better than the current barn building. Exterior finished materials, compatible with what is being used in the neighborhood, would be used.

At the May 20, 2004 Board hearing, the University's Vice-President for Administrative Services, Patricia Swannack, testified. Ms. Swannack described the University's need for additional dormitory space as opposed to using facilities such as the Esplanade Hotel. She stated:

We don't believe it is an appropriate quality of life issue. We believe they should be living with their peers, the other students on campus.

We have to provide a shuttle seven days a week, for a significant amount of students, in a 24-hour period. There is also extensive difficulty with the students coming back and forth to campus because the Esplanade does not have cooking facilities or a cafeteria on site. The students have to participate in the meal plan that is provided on campus.

Ms. Swannack opined the construction of the proposed residence hall would alleviate certain traffic issues near the school by eliminating the need of the students to commute to class and other campus activities.

Ms. Swannack further testified that the University had examined all options for Block 30 (the Farm) and had considered other alternatives to the tennis courts and storm water management basin. The University considered including additional parking lots, single-family homes for student groups, and relocating athletic fields. She testified there was no support for these uses by community groups. Accordingly, the University concluded that the tennis courts and basin were the most compatible use of the property which was a benefit to the community at large.

The University's planner, Paul Phillips, addressed the relevant criteria that had to be satisfied to grant the variances. He noted that the University's use of the Property is inherently beneficial and the residence halls and associated recreation and storm water facilities were all part of the inherently beneficial University use which needed to be in close proximity to the University.

Mr. Phillips reiterated that the new residence hall was proposed to meet an existing need of the University, to provide housing for students presently living off-campus in the Esplanade Hotel. The parking lot was designed to serve the additional student population that would be moving back to campus. Mr. Phillips testified that the proposed area for the new residence hall ...

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