August 18, 2008
PRINCETON JUNCTION DEVELOPMENT PARTNERS, PLAINTIFF-APPELLANT,
WASHINGTON TOWNSHIP AND WASHINGTON TOWNSHIP ZONING BOARD OF ADJUSTMENT, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2008
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 unreasonable. She therefore dismissed Princeton Junction's complaint with prejudice.
On appeal, Princeton Junction contends:
I. THE PLAINTIFF DID PROVIDE SUFFICIENT INFORMATION FOR THE BOARD TO MAKE A FACTUAL DETERMINATION TO GRANT A DENSITY VARIANCE SUBJECT TO PRELIMINARY AND FINAL SITE PLAN APPROVAL.
A. SENIOR HOUSING IS RECOGNIZED AS AN INHERENTLY BENEFICIAL USE.
B. IN THE ALTERNATIVE, IF SENIOR HOUSING IS NOT CONSIDERED AN INHERENTLY BENEFICIAL USE, THE PLAINTIFF ESTABLISHED THE POSITIVE CRITERIA FOR THE USE VARIANCE BY TESTIMONY.
i) THE PROPERTY IN QUESTION IS UNIQUE IN ITS LOCATION.
ii) THE APPLICATION PROMOTES THE GENERAL WELFARE.
iii) THE APPLICATION PROMOTES THE ESTABLISHMENT OF APPROPRIATE POPULATION DENSITIES AND CONCENTRATIONS WHICH CONTRIBUTE TO THE WELL BEING OF PERSON, NEIGHBORHOODS, COMMUNITIES, REGIONS AND PRESERVATION OF THE ENVIRONMENT.
iv) THERE IS A NEED FOR SENIOR HOUSING THAT IS NOT BEING MET.
C. THE PLAINTIFF'S APPLICATION OVERCAME THE NEGATIVE CRITERIA.
Essentially, Princeton Junction's argument is that the Board's decision was arbitrary, capricious and unreasonable and that Judge Curio erred in not concluding so and dismissing its complaint. We disagree.
A zoning board's decisions carry a presumption of validity. Northeast Towers, Inc. v. Zoning Bd., 327 N.J. Super. 476, 493 (App. Div. 2000). "Such public bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion." Kramer v. Bd. of Adjust., 45 N.J. 268, 296 (1965). A zoning board's decision is entitled to "substantial deference" from a reviewing court and must only be reversed when "arbitrary, unreasonable, or capricious." New York SMSA, L.P. v. Bd. of Adjust., 370 N.J. Super. 319, 331 (App. Div. 2004). That deference is greater when a court reviews a denial of a variance, rather than a grant. Nynex Mobile Comm'ns Co. v. Hazlet Twp. Zoning Bd., 276 N.J. Super. 598, 609 (App. Div. 1994). The Board's decision is entitled to the same deference from appellate courts. Bressman v. Gash, 131 N.J. 517, 529 (1993); Charlie Brown of Chatham, Inc. v. Bd. of Adjust., 202 N.J. Super. 312, 321 (App. Div. 1985).
When a zoning board considers an application for a use variance, it engages in a weighing of the "positive" and "negative" criteria of the proposed use. N.J.S.A. 40:55D-70d. "The positive criteria test whether a proposed use promotes the general welfare and is particularly suited for the site." New Brunswick Cellular Tel. Co. v. Borough of So. Plainfield, 160 N.J. 1, 14 (1999). The negative criteria requires a showing that the use variance can "be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70d. See also Medici v. BPR Co., 107 N.J. 1, 21 (1987).
When the proposed use is one considered "inherently beneficial," the applicant's burden is "significantly lessened" and the positive criteria are presumptively satisfied. Smart Smr of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjust., 152 N.J. 309, 323 (1998). What is an inherently beneficial use is a fact-sensitive inquiry. Medical Center at Princeton v. Twp. of Princeton Zoning Bd., 343 N.J. Super. 177, 207 (App. Div. 2001). Often, the inquiry begins with whether the proposed use is commercial or non-commercial, the latter typically more likely to be an inherently beneficial use. Sica v. Bd. of Adjust., 127 N.J. 152, 159 (1992). However, quite often a profit-making ventures qualifies as inherently beneficial. See ibid. (collecting cases).
In Jayber, Inc. v. Mun. Council, 238 N.J. Super. 165 (App. Div.), certif. denied, 122 N.J. 142 (1990), we reversed a denial of a variance for construction and operation of a senior citizen congregate care facility. Id. at 166. In doing so, we found that such a proposed use "advances the senior citizen housing purpose of N.J.S.A. 40:55D-2(l) and is also, beyond debate, an inherently beneficial use in that it promotes the general welfare." Id. at 175. We so held, despite the fact that the variance sought "was essentially in aid of a commercial use" and that the facility was designed to be "a profit making enterprise[.]" Id. at 174.
Here, the Board acted soundly and within its discretion in denying Princeton Junction's application. First, Princeton Junction failed to meet the positive criteria. Princeton Junction continues to maintain that the proposed use of the project, construction of age-restricted housing, is an "inherently beneficial" use, and, even if it was not, it meets the positive criteria. However, this argument misconstrues both the MLUL and the relevant cases, particularly Jayber.
A specific purpose of the MLUL is to "encourage senior citizen community housing construction[.]" N.J.S.A. 40:55D-2l. The MLUL defines a "senior citizen" as one "who has attained [at least] the age of 62 years . . . ." N.J.S.A. 40:55D-68.5. It is therefore not entirely accurate to describe the proposed construction as consistent with a stated purpose of the MLUL, since the housing is open to non-seniors as well as seniors.
No one disputes the fact that housing for the elderly is an inherently beneficial use. See Taxpayers Ass'n of Weymouth Twp. v. Weymouth Twp., 80 N.J. 6, 26 (1976); Jayber, supra, 238 N.J. Super. at 174-75. However, the housing Princeton Junction seeks to construct is a far cry from those the courts have approved of, which were specifically designed to "meet the special physical needs of the elderly . . . ." Taxpayers Ass'n of Weymouth, supra, 80 N.J. at 26.
For example, in Jayber, we described the facility applicants sought to build as:
something between traditional senior citizen housing consisting of fully self-contained apartments and a nursing home. This description applies not only to the modicum of support services implicit in the congregate housing plan but to its physical attributes as well. Hence, characteristics such as density, individual room area, common area per resident, and percentage of common area overall also lie between those typical of senior citizen housing and those typical of nursing homes. . . . [T]here will be a congregate dining room in which each resident will be required to take a main meal daily. There are also proposed to be lounges, recreational and social activities, an exercise facility, a "wellness center," a nurse on the premises, physical and occupational therapy facilities, laundry facilities, a staffed "front desk," and other support services. Linens and housekeeping services are also to be provided. It is further anticipated that there will be a certain amount of movement between the congregate care facility and the nursing home, which would, in effect, back each other up as a resident's personal situation improved or deteriorated. The monthly rental . . . would include one meal daily, housekeeping services, and access to the support facilities . . . .
[Jayber, supra, 238 N.J. Super. at 167-68.]
In addition to the services provided, in Taxpayers Ass'n of Weymouth, the Supreme Court suggested that the affordability of senior housing is another key component which makes such housing inherently beneficial. The Court explained:
In part the need of the elderly for specialized housing results from the fixed and limited incomes upon which many older persons are dependent. . . . Because many of the elderly derive their incomes from pensions, social security or other government benefit programs, or from interest on savings or income-producing securities, they are among those hardest hit by inflation and the current statewide housing shortage. Consequently, many of the elderly cannot afford housing specifically designed for their needs, and in many cases are actually obliged to live in substandard housing. Many others must devote a disproportionate amount of their available resources to housing costs. Moreover, those who are homeowners must often forego proper maintenance and upkeep of their homes. [Weymouth, supra, 80 N.J. at 25 (citations omitted).]
Physical needs and social problems common to the elderly are other proper considerations. Id. at 26.
Here, nothing in the record suggests any special services the residences will provide to the seniors, other than the fact that the residential units will be restricted based on age and that they are near commercial services attractive to seniors, such as shopping centers and doctors' offices. As for affordability, the residential units Princeton Junction seeks to build will start in the low $300,000's, and common sense dictates that the final selling price will be even higher. The Board heard the testimony of several residents who concluded that this is not the sort of housing seniors in the Township want.
The Board's conclusion that, even in the absence of an inherently beneficial use, Princeton Junction had still failed to meet the positive criteria, i.e. the proposed use promotes the general welfare and is particularly suited for the site was supported by the evidence. The Township's experts testified before the Board that the project would not promote the general welfare since the construction of such facilities would be inconsistent with the surrounding properties and the Master Plan, eliminating open space and debilitating environmental conditions.
It is also clear from the record that Princeton Junction's proposed use of the property is not "particularly suited for the site." New Brunswick Cellular, supra, 160 N.J. at 14. It would create, in Judge Curio's words, "thirty-seven dwellings where seven ought to be." Nothing in the record suggests that this particular project requires this particular property.
The Board's finding that Princeton Junction failed to meet the "negative criteria" is supported by the evidence. Princeton Junction's proposed use, in the opinion of the Board, "will not provide benefits to the Township and/or the zone plan which would outweigh the detriment to the zoning scheme and zoning ordinances of Washington Township." Specifically, the Township revised its Master Plan in order to rezone the land as rural. Clearly, Princeton Junction's desire to put thirty-seven homes where seven should be according to the Master Plan is a proposal "inconsistent with the intent and the purpose of the master plan and zoning ordinance." Medici, supra, 107 N.J. at 21.*fn2
The Township also relied on the opinion of its expert planner, who testified at the Board meeting that in his professional opinion, Princeton Junction did not meet its burden. The Board's environmental engineer also testified that granting the requested variance would harm the Township's environment, including its animal life. It also took into consideration the testimony of many of the Township's citizens, none of whom supported granting the variance.
We conclude that the Board's decision was neither arbitrary nor capricious nor unreasonable. It was supported by the evidence. Therefore, the judge was correct in dismissing the complaint.
Princeton Junction also contends:
D. THE BOARD FAILED TO APPLY THE PROPER TEST IN CONSIDERATION OF THE PLAINTIFF'S APPLICATION.
i) THE PLAINTIFF SATISFIED THE TEST FOR A VARIANCE UNDER THE LAW PRIOR TO THE COURT'S DECISION IN GRUBBS V. SLOTHOWER, 389 N.J. SUPER. 377 (App. Div. 2007).
ii) THE PLAINTIFF SATISFIED THE TEST FOR A DENSITY VARIANCE PURSUANT TO THE COURT'S HOLDING IN GRUBBS V. SLOTHOWER, 389 N.J. SUPER. 377 (App. Div. 2007).
As noted above, the Board followed the proper analysis under the MLUL in determining whether to grant or deny Princeton Junction's application. Our recent decision in Grubbs v. Slothower, 389 N.J. Super. 377 (App. Div. 2007), which holds that applicants seeking density variances need not meet the higher standard of proof announced by Medici, does not compel a different result. The burden remains on Princeton Junction to show that the increased density sought will not negatively impact the Township. See id. at 389-90. As the previous discussion makes clear, it could not do so. The result would be the same under the lesser standard described in Grubbs.