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Washington Shopping Center, Inc. v. Township of Washington Land Use Board and Asbury Farms/Hawk Pointe

August 6, 2008

WASHINGTON SHOPPING CENTER, INC., PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF WASHINGTON LAND USE BOARD AND ASBURY FARMS/HAWK POINTE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-80-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 21, 2008

Before Judges Wefing, Parker and Koblitz.

Plaintiff, Washington Shopping Center, Inc., appeals from a September 4, 2007, order of the trial court dismissing its complaint in lieu of prerogative writs challenging a decision of the Township of Washington Land Use Board (Board) which granted a variance to Asbury Farms, L.L.C. (Asbury Farms) to allow construction of eight nonconforming units consisting of six affordable housing units and a small group home for the developmentally disabled in an eighty-three-unit townhouse development in a Planned Village District (PVD) Zone.*fn1 We affirm.

Washington Shopping Center, Inc. owns property located at Route 31 and Asbury Anderson Road in Washington Township, Warren County, New Jersey. Asbury Farms is the owner of property known as Lots 2 and 4 in Block 65 and Lot 1 in Block 65.02 in Washington Township. The proposed development is part of a planned development known as Hawk Pointe which is presently improved with a golf course, clubhouse, sewage treatment plant and 120 residential dwelling units. In the future the community is expected to contain commercial development including a supermarket. Asbury Farms submitted an application to the Board for a residential subdivision entitled "Regency at Hawk Pointe." That application proposed eighty-three dwelling units including seventy-five approximately two thousand five hundred square feet townhouse units and eight two-bedroom eight hundred square feet affordable housing units for low- and moderate-income households pursuant to the Mt. Laurel decisions of the New Jersey Supreme Court, commencing with Southern Burlington County NAACP v. Township of Mt. Laurel, 67 N.J. 151 (1975), the implementing rules of the New Jersey Council on Affordable Housing (COAH), N.J.A.C. 5:94-1 to -9.2 and Washington Township ordinances. The affordable housing units consisted of six two-bedroom age-restricted condominium units and a four-bedroom group home for developmentally disabled persons over the age of twenty-one, but not necessarily over the age of fifty-five.

The variance, which is the subject of this appeal, was granted pursuant to N.J.S.A. 40:55D-70(d)(1) and allowed the affordable housing units to be constructed in a two-story building comprised of eight two-bedroom, one-story apartment units, or stacked flats, which are specifically precluded by town ordinance. Code of the Township of Washington, New Jersey (Code) § 123-2.

The PVD Zone "encourages mixed-use development consisting of residential, commercial, office, recreational, civic and related use, potentially integrated into the same structure. The PVD requires innovative design and planning in order to encourage a built-environment which reflects the character of the traditional American village." Code, § 123-13.2(A). The intent of the PVD district is to create a planned residential community with a mixed-use town center which emphasizes pedestrian and bicycle circulation as well as architectural styles of traditional New Jersey villages, with smaller lots and homes to encourage the preservation and protection of environmentally sensitive open space and wildlife habitats. Code, § 123-13.2 (A)(1)(a).

Four types of dwelling units are permitted: detached dwellings, manor houses, village houses and townhouses. "All such dwelling units are designed and constructed and deed restricted to limit occupancy to persons at least one of which (sic) must be 55 years and older and none of them (sic) shall be less than 19 years of age in accordance with the Federal Fair Housing Act, 42 U.S.C. § 3601 et seq." Code, §123-13.2 (B)(1)(c). A detached dwelling and a village house may contain no more than one dwelling unit, a manor home may contain up to four dwelling units and a townhouse may contain from four to siX connected units. None of the approved housing is permitted to have any part of any dwelling unit located above or below another. Code, §123-2(B). Thus, stacked housing is explicitly prohibited in the PVD Zone by the Washington Township housing code.

Public hearings were held on September 13, September 27 and October 11, 2006. Washington Shopping Center, Inc. did not participate in the proceedings before the Board. Asbury Farms presented testimony from three witnesses.

Richard Arzberger, its professional planner and architect, testified that the stacked flat building would have siding and roofing material matching the townhouse units as closely as possible. From the exterior the stacked flat construction would appear similar to a townhouse. Thus, the building would fit within the aesthetic requirements of the PVD Zone. Arzberger also testified that the stacked flat housing was necessary to make the construction affordable to the builder and to provide inexpensive handicapped accessibility through the one-story units on the ground floor, given that without the variance the townhouses were all two-story structures.

Shirley Bishop, a professional planner and former Executive Director of COAH, testified that as a result of the proposed construction of seventy-five townhouse units, COAH requires that 9.2 units be devoted to affordable housing for low- and moderate-income occupants. The proposed construction would consist of eight two-bedroom units. The group home, consisting of two such dwellings, would have four bedrooms, with each bedroom counting as one affordable housing unit. The other six two-bedroom units would each count as one affordable housing unit. Thus, this project would afford the town credit for ten affordable housing units. The group home would also count as four credits towards the town's rental obligation.

Robert Pruznick, an expert in group homes, testified that construction of this group home would be extremely beneficial to developmentally disabled adults and their parents by providing safe, innovative housing. The group home would be staffed full-time and promote the maximum possible independence for the residents. The planned supermarket and current golf course within a short radius would be an excellent potential source of employment for the residents. Pruznick indicated that New Jersey has a waiting list of more than five thousand individuals looking for such housing. He applauded efforts to make the developmentally disabled a part of a planned community.

On December 20, 2006, the Board passed a resolution granting preliminary major subdivision approval, preliminary major site plan approval, and variance relief for Asbury Farms' Hawke Pointe application. The resolution granted Asbury Farms "a use variance pursuant to N.J.S.A. 40:55D-70(d)(1) to permit the stacked flat Affordable Housing Building." Although the Washington Township resolution refers to a "use" variance, clearly the variance granted under the statute cited was a variance as to a principal structure (allowing stacked housing) for a permitted use (a group home and other affordable housing). N.J.S.A. 40:55D-70(d)(1) states, in pertinent part, that the Board may, "[i]n ...


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