On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2101-05.
The opinion of the court was delivered by: Sabatino, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Sabatino and Alvarez.
Plaintiffs, several residents of Hamilton Township ("the Township") and a watershed preservation advocacy group, seek to invalidate numerous use and bulk variances the Township's Zoning Board of Adjustment ("the Board") granted to a developer, Crestwood Construction, LLC ("Crestwood" or "the developer"). The variances authorized Crestwood to build on a 10.9-acre site a mixed-use project, consisting of four buildings with a total of 119 age-restricted apartments, two retail/office buildings, and another building with a 168-seat restaurant. The variances were necessary because the site is located in a research and development zone ("RD zone") that prohibits residential housing and that disallows retail businesses and restaurants except on lots with at least one hundred acres.
The Law Division rejected plaintiffs' challenge to the project in most respects, except that it found that the developer had improperly agreed, as a condition of its variances, to pay a $476,000 subsidy to the Township for the off-site construction of a proposed amphitheatre in a nearby municipal park. Ruling that the $476,000 illegal exaction was only a minor part of the project, the trial court excised that condition and did not require any further public hearings before the Board. Plaintiffs now appeal the trial court's decision on multiple grounds.
Although many of plaintiffs' arguments lack merit, we are persuaded that the variances are flawed in two significant respects. First, the notice of its zoning application that Crestwood published in the newspaper and served upon nearby property-owners was substantively deficient under Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 241 (App. Div. 1996). In accordance with Perlmart, the notice should have specifically alerted neighbors and the public at large that the variances Crestwood sought included approval for a large restaurant with a potential liquor license, going beyond the notice's vague reference that the project included "retail/office units." Second, the developer's bargained-for $476,000 contribution towards an off-site Township recreational facility was a significant, not a minor, part of the development proposal, substantially intended to compensate for the project's complete lack of on-site recreational facilities for the senior citizens who would be living there. Consequently, the matter preferably should have been remanded to the Board for further public consideration after the trial court correctly deemed the developer's negotiated payment an illegal exaction.
Because the project is already partially built, we decline to fashion a comprehensive remedy to address these deficiencies, except that we enjoin further construction of the restaurant at this time pending proper notice to the public of the restaurant proposal and the Board's renewed consideration. We remand the matter to the Law Division for the fuller development of an upto-date factual record germane to remedial issues, and to clarify the scope of the issues that must be reheard before the Board. After those facts are adduced, the trial court shall exercise its sound discretion to formulate a solution that duly considers the interests of the litigants, affected third parties such as contractors, vendors, and prospective tenants, and the public at large.
The project at issue, known in marketing materials as "Twin Ponds," involves a 10.9-acre L-shaped parcel of land on the east side of Yardville-Hamilton Square Road in Hamilton Township. The property is designated as Section (or Block) 2173, Lots 18, 19, 20 and 21 on the Township's tax maps. The property was formerly used as farmland. At the time of Crestwood's zoning application, the property was vacant and owned by the Diocese of Trenton. The developer, Crestwood, subsequently purchased the property and planned to continue to own it after the project was built.
In its application submitted to the Board in January 2005, Crestwood proposed a "mixed-use active adult community and commercial development" on what is an RD zone. Of the 17,000 square feet proposed as commercial space, a sit-down restaurant would cover 5,000 square feet and the remaining 12,000 square feet would be "dedicated to an even split of office and retail use."
The site would also include four two-story buildings with "age qualified" garden apartments for residents fifty-five and older. Each building would have thirty-two bedroom units. Each apartment would have two parking spaces as required by the local ordinance. The woods in the far eastern portion of the property were to be preserved.
The "boulevard type entrance" for the project would line up directly with Briarwood Drive, a residential subdivision across the street, and would have a landscaped island. The development would be called Twin Ponds because of two artificial ponds to be created on each side of the entrance driveway. The ponds were an aesthetic consideration and would provide only minimal storm water management. The Township's engineers, land use coordinators and other consultants reviewed and commented on Crestwood's application before the Board considered it.
Crestwood applied for two use variances, pursuant to N.J.S.A. 40:55D-70(d), for relief from the use restrictions in the RD zone. One use variance was required because the proposed residential use for the apartments is not permitted in the RD zone. The second use variance was needed because the proposed commercial uses for the 10.9-acre site did not meet the criteria for this size project. By Township ordinance, mixed use developments in the RD zones containing retail uses are permitted only if the minimum total area to be developed is one hundred acres. Hamilton Twp., N.J., Land Dev. Code § 160-80(1)(b)(7)(i) (1979).
At its appearance before the Board, Crestwood also sought preliminary site plan approval of the entire project and final site plan approval of "phase one," consisting of sixty units in the southern residential village. Phase two included the commercial section, and phase three included the other sixty units of garden apartments.
The application sought bulk variances for "front, side, and rear yard setbacks, the distance between the two principal buildings, parking area setbacks from any lot line, [the] minimum buffer area along any common property line in the residential districts, and [a] ground sign setback from the property line." This last variance was sought for a ground-mounted, thirty-square-foot sign to be placed ten feet from the right-of-way. The plan complied with other RD zone requirements, such as building height and maximum impervious surface coverage.
The application also sought several design waivers. One was for a commercial area loading berth, with deliveries to be made during off hours so that truck parking would not conflict with the users of the commercial parking lot. Another design waiver was for the size of the garden apartments. The third design waiver sought was in connection with the distance between the ground level openings on each apartment building.
According to the project's architect, the apartment buildings were designed to have "no front or back . . . . So, basically, all the way around the apartment it always looks like a front elevation." The apartment buildings were to be connected by a shared vestibule. The residents would have access to the secure lobby level from all parking areas. Each of the two-bedroom residential units would be approximately the same size, 45 by 24 feet, totaling 1100 square feet.
The commercial portion of the project included three sixty-foot deep, one-story buildings with decorative dormers or cupolas. The HVAC systems would be either "wall type units" or outside condensers "that could be easily landscaped and screened."
The plan proposed that fifty-one percent of the total area would be impervious cover, which is less than the fifty-five percent maximum limit for RD zones. The plan also satisfied the ordinance's five percent landscaping requirement in parking areas and the ordinance's technical criteria for landscaping. Further buffers would be added along the property lines and the pondscape plan would be supplemented with additional plantings.
The plan also included widening Yardville-Hamilton Square Road to sixty-four feet, pursuant to the Township engineer's requirements. The right-of-way dedication would be increased to ten feet. In accordance with comments from the Township's experts, Crestwood agreed, to the extent possible, to minimize the crossings at Yardville-Hamilton Square Road. It also sought to eliminate one of the storm sewers and shift one of the water crossings out of the intersection.
On April 2, 2005, Crestwood mailed notices of the hearing on its application to the listed owners of property located within two hundred feet of the project site. On that same date, a public notice of the application was also printed in a local newspaper. As we will explore at length in Part II of this opinion, the notice incorrectly listed the property's Block number as "2713" rather than "2173." The notice made no mention of the 168-seat restaurant contemplated for the site. The notice indicated that a public hearing on the application would be conducted before the Board at its next regular meeting on April 12, 2005.
For reasons not clear from the record, Crestwood's application was not listed on the Board's tentative agenda for the April 12 meeting. A partial transcript from that meeting indicates that the application was carried to the next regular board meeting on May 10, 2005. The Board's tentative agenda for the May 10 meeting does include the Crestwood application. During that May 10 meeting, Crestwood's application was "tentatively carried" to a "special meeting" on May 24, 2005. A public notice of the adjournment to May 24 was subsequently published in The Trenton Times.
As anticipated, the application was listed on the tentative agenda for the May 24 meeting, and was considered on its merits at that time. Crestwood presented testimony in support of its application by several experts. These experts included a licensed planner, an architect, an engineer who prepared a stormwater management plan, and another engineer who testified on traffic issues. The developer also presented testimony from the prospective owner of the on-site restaurant.
Apart from the developer's witnesses, the Board also heard testimony from its own planner, who recommended approval of the project upon the adoption of several conditions. The Board also heard a statement in support of the project from a representative of the Township's administration. The representative commented in particular about the negotiated arrangement for Crestwood to contribute $476,000 to the Township in off-site improvements, a feature that we shall discuss in more detail in Part III of this opinion.
No members of the public appeared at the May 24 meeting in opposition to the development. The only member of the public who addressed the Board concerning the project was the nephew of a nearby property-owner, who told the Board that his aunt intended to sell her own land in the future and desired to have the entire area re-zoned to avoid the need for a similar variance. Because there were no objectors at the meeting, the Board did not hear any competing expert testimony, and the developer's witnesses were not questioned by any opposing counsel.
After testimony concluded, the Board members voted seven to zero to approve the application, issuing preliminary site plan approval for the entire site and final site plan approval for phase one. On June 14, 2005, the Board adopted a resolution memorializing its actions granting use and bulk variances, as well as the preliminary and final site plan approval. On June 22, 2005, a public notice was published, reflecting that the confirming resolution had been adopted by the Board.
In its resolution, the Board summarized Crestwood's application and made the following findings of fact:
1. The Applicant has submitted proof of notice and proof of publication and the Zoning Board has jurisdiction to hear this matter.
2. Diocese is the owner of property located at Yardville-Hamilton Square Road in the Township of Hamilton, Map 213, Section 2173, Lots 18-21, Zone RD.
3. The Hamilton Township Zoning Ordinance permits mixed use development (Section 160-80) in the RD Zone but on larger tracts of land.
4. Applicant's proposed site is in an area of mixed use development already.
5. Applicant testified [that] affordable housing meeting COAH standards would be part of its residential development.
6. The use variances and bulk variances would allow the project to be developed appropriately for mixed uses without detriment to the Master Plan or Zone Plan.
7. Considerable beneficial interest can be found in approving Applicant's use. The location of the use adds flexibility to the zone, encourages age restricted housing, provides quality ratables ...