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


August 6, 2008


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

Per curiam.


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 particular cases and for special reasons, grant a variance . . . to permit: (1) a use or principal structure in a district restricted against such use or principal structure."

A variance issued pursuant to N.J.S.A. 40:55D-70(d)(1) is generally known in land use law as a "use" variance. William M. Cox, New Jersey Zoning and Land Use Administration, § 7-1.3 at 163 (2008). The Board heard testimony relating to the need to modify the requirements for a principal structure to permit the planned uses. The Board explained in its resolution why the structural variance was appropriate.

The Board noted that assisted living units were contemplated within the PVD Zone. The Board stated, "[t]he fact that the promotion of age restricted housing AND affordable housing AND a group home via the stacked flat units can be accomplished, albeit not in the form contemplated, does not result in a substantial impairment to the intent and purpose of the zone plan and zoning ordinance. Rather, the Board agreed with the testimony of the applicant's witnesses that the intent and purpose of the zone plan and zoning ordinance would be further advanced by the granting of the variance."

The Board found special reasons justifying the grant of the variance permitting the stacked flat residential affordable housing units. The Board found that by providing affordable housing, especially the group home, the public health, safety, morals and general welfare would be advanced. N.J.S.A. 40:55D-2(a). The Board found that the stacked flat residential housing would permit affordability, provide for a variety of housing units and advance the needs in particular of those New Jersey citizens with developmental disabilities as well as those who prefer to live in age-restricted affordable housing. N.J.S.A. 40:55D-2(e) and (g). The Board also found that by designing the stacked flat affordable housing to be consistent with the adjacent townhouse development, the project would insure and promote compliance with the MLUL purpose to promote a desirable visual environment through creative development techniques and good civic design and arrangement. N.J.S.A. 40:55D-2(i).

The Board concluded that the purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, would be advanced by the deviation from the zoning ordinance.

The Board also concluded that Asbury Farms met its burden by an enhanced quality of proof that the variance sought was not inconsistent with the intent and purpose of the Master Plan and Code.

A zoning board's decision on a variance application may be set aside only when arbitrary, capricious, or unreasonable. Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002); New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 160 N.J. 1, 14 (1999); Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998); Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965). This standard comes from the recognition that local officials who are familiar with a community's characteristics and interests are best equipped to pass on variance applications. Ibid. Because of their knowledge of local conditions, boards must be allowed wide latitude in the exercise of their delegated discretion. Ibid. Therefore, "courts ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. Zoning Bd. of Adj. of Borough of N. Caldwell, 160 N.J. 41, 58-59 (1999).

Board decisions are presumed valid and the party attacking them has the burden of proving otherwise. Cell S. of N.J., Inc., supra, 172 N.J. at 81. A court will not disturb a board's decision unless it finds a "clear abuse of discretion." Id. at 82. The standard of review is the same for both trial and appellate courts. Bressman v. Gash, 131 N.J. 517, 529 (1993).

Plaintiff first argues that stacked housing is specifically prohibited in the PVD Zone. Accordingly, a variance was required for approval of Asbury Farms' plans for this site. To obtain such a variance, an applicant must provide proof satisfying both the "positive" criteria and the "negative" criteria. Sica v. Board of Adj. of Twp. of Wall, 127 N.J. 152, 156 (1992). Usually, "to satisfy the positive criteria, an applicant must prove that 'the use promotes the general welfare because the proposed site is particularly suitable for the proposed use.'" Smart SMR, supra, 152 N.J. at 323 (quoting Medici v. BPR Co., 107 N.J. 1, 4 (1987)). A use, such as a school or hospital, that is "inherently beneficial" or "inherently serve[s] the public good" by its nature will provide special reasons to grant the variance, thus presumptively satisfying the positive criteria. Ibid. The negative criteria requires proof that the "variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Ibid. (quoting Medici v. BPR Co., supra, 107 N.J. at 22 n.12).

The trial court found that the Board did not abuse its discretion in finding that the positive and negative criteria had been met by the Board. The Board found special reasons which satisfied the positive criteria in that the purposes of the MLUL were met by granting the variance.

Although not specifically articulated in this fashion by the Board, the construction would be inherently beneficial to the community. Affordable housing has been held to be an inherently beneficial use. Homes of Hope, Inc. v. Mt. Holly Twp. Zoning Bd of Adj., 236 N.J. Super. 584, 588 (Law Div. 1989); citing DeSimone v. Greater Englewood Housing Corp. No. 1, 56 N.J. 428, 442 (1970).

Affordable housing constructed as a group home for the developmentally disabled without question meets the definition of an inherently beneficial use and thus constitutes a special reason for the variance. Not only schools and hospitals are inherently beneficial uses. See Sica, supra, 127 N.J. at 165 (finding child care centers; community shelters for the developmentally disabled and victims of domestic violence inherently beneficial); Scholastic Bus Co. v. Zoning Bd., 326 N.J. Super. 49 ( App. Div. 1999) (finding a facility for storing and maintaining school buses inherently beneficial); Children's Inst. v. Verona Tp. Bd., 290 N.J. Super. 350 (App. Div. 1996) (finding a school for handicapped children inherently beneficial); Jayber, Inc. v. Township of W. Orange, 238 N.J.Super. 165, 177 (App. Div. 1990) (finding senior citizen congregate housing inherently beneficial). Certainly a group home for the developmentally disabled fits within the definition of an inherently beneficial use.

The negative criteria was satisfied by Arzberger's testimony that the outward appearance of the stacked housing would be virtually identical to that of the townhouses.

Although plaintiff argues that another variance was needed to allow eight units because the townhouses were only permitted to contain up to six units, the trial court correctly found that the variance granted to allow stacked housing encompassed the number of units in the dwelling.

Plaintiff also argued that Asbury Farms needed a variance to permit the group home to avoid the age restriction requiring one occupant of each dwelling to be over the age of fifty-five. Although Asbury Farms sought a variance for the non-age-restricted group home, the Board was informed that such a variance was not needed pursuant to N.J.S.A. 40:55D-66.1, which provides that "community residences for the developmentally disabled" are permitted uses in all residential districts and "the requirements therefor shall be the same as for single family dwelling units located within such districts."

Given that the statute states that housing for the developmentally disabled must otherwise meet the requirements for single family dwelling units, it would have been preferable for the board to consider an age-restriction variance. This statute, however, reflects the legislature's intent to encourage community housing for the developmentally disabled. The board indicated at the hearing that one reason for the age restriction was to limit school age children. No school age children would be residents of the group home. The Board clearly understood that the developmentally disabled residents of the group home would not necessarily be fifty-five or older. Given the Board's clear support of the non-age-restricted group home, we do not remand to the Board for consideration of a separate age restriction variance.

We have carefully considered the arguments advanced by the parties and affirm the Board's grant of a variance for the stacked housing proposed by Asbury Farms substantially for the reasons expressed by Judge John J. Coyle, Jr. in his well-reasoned written opinion of August 14, 2007.


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