On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1386-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and C. S. Fisher.
Appellant Princeton Junction Development Partners (Princeton Junction) challenges the July 6, 2007 order dismissing its complaint against respondents Washington Township (Township) and the Washington Township Board of Adjustment (Board). We affirm.
In May 2005, Princeton Junction sought to construct thirty-seven single-family detached-dwelling units on a fourteen-acre vacant parcel in the Township. The units would be restricted to persons aged fifty-five or older. According to the application, "[t]he location is ideal for a senior community due to its proximity to office and retail businesses within walking distance." However, because the Township zoned the property as rural, thereby only permitting construction of one single-family detached dwelling per two acres in the zone, variances were necessary. Princeton Junction applied to the Township for a density variance and preliminary and final site plan approval. Its application proposed variances in three categories: lot area, lot depth and lot width. Princeton Junction did not make proposals regarding six other code requirements, including lot coverage, open space ratio, building height, front yard, rear yard and one side yard.
The Board considered the application. In support of the application, Princeton Junction's engineer John Barnhart testified that granting the variance would allow Princeton Junction to construct "more quaint" senior housing in the area. Barnhart stressed that such housing is encouraged by the Municipal Land Use Law*fn1 (MLUL). Barnhart was referring to N.J.S.A. 40:55D-2l, which provides that one purpose of the MLUL is "to encourage senior citizen community housing construction."
An area realtor, Steven Scherfel, also testified in support of the application. He said that the property was in an area where there is real need for the development of age-restricted community housing and that residents desire such property. Scherfel also testified that the homes Princeton Junction planned to build on the property would be priced starting at the low $300,000's.
Following the testimony, Board members indicated that although seniors were looking for housing, they were looking for subsidized housing and not homes which are considered high-end for that area. The Board Planner, Joseph Petrongolo, stated that he could not recommend approval of the variance because, in his view, the proposed plan was contrary to the Township's Master Plan and does not meet the MLUL's statutory criteria. Richard Fini, the Board Environmental Engineer, opined that there would be some loss of the natural environment on the property, including the loss of mature trees, top soil and wetlands.
Residents of the Township testified at the meeting. One, a realtor, agreed with the Board member who said seniors primarily seek subsidized housing and not high-end homes like the ones Princeton Junctions sought to build. A number of other residents spoke and objected to the proposed project because: it would increase traffic; negatively affect the Township's environment, including animal life; and increase population density beyond acceptable levels. Another resident, an owner of abutting property, stated that she enjoyed the open space of the neighborhood and bought her property with the understanding that the Township would enforce its zoning ordinance.
The Board unanimously denied Princeton Junction's application and subsequently adopted a resolution memorializing the decision. The resolution sets forth the Board's findings that: the project was wholly inconsistent with the Township's recently-adopted Master Plan, which declared the preservation of open space and existing environmental conditions to be paramount; the proposed construction "will not provide benefits to the Township and/or the zone plan which would outweigh the detriment to the zoning scheme . . . [;]" and that Princeton Junction therefore had "not met its burden of proving sufficient special reasons or the negative criteria to support the grant of the requested use variance." It concluded that "the use variance sought by the applicant will cause a substantial detriment to the public good and an impairment of the intent and purpose of the zone plan."
Princeton Junction filed an action in lieu of prerogative writs, alleging that the Township and the Board denied its application without a rational basis and therefore acted in an arbitrary, capricious and unreasonable manner. It also alleged the Township zoning ordinance violates a number of State and Federal constitutional provisions, including the Takings and Due Process Clauses. The parties cross-moved for dispositive rulings on the record.
Judge Georgia M. Curio concluded that although "reasonable minds could differ" as to the meritorious nature of the project, she found that Princeton Junction had not met its burden of proving the applicable positive and negative criteria for a use variance and the Board's decision was not arbitrary, capricious or ...