On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-464-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 17, 2008
Before Judges Cuff and Baxter.
Plaintiff GC Landmarks, LLC (GC) is the contract purchaser of an undersized vacant lot (the Property) located in a Residential (R) district in Hillsborough Township. It is undisputed that the lot is undersized as a result of a taking by the New Jersey Department of Transportation (DOT). GC originally sought variances from defendant Zoning Board of Adjustment (the Board) for development of a three-story mixed-use building. After receiving negative feedback on its application, GC amended the application and proposed construction of a two-and-one-half-story single-family dwelling for which a variance was required because of the undersized lot. The Board denied GC's application because it failed to make a good faith offer to sell the Property to an adjacent land owner. The Board also remarked that the Property was best suited to be developed in accordance with the initial proposal, an unpermitted use. The trial court affirmed the denial and GC appeals. We reverse.
GC owns a vacant parcel of land with an area of 23,727.13 square feet or 0.545 acres located in an R district. This district requires minimum lot sizes of one acre, lot widths of 150 feet, front yard setbacks of fifty feet, side yard setbacks of thirty feet, and rear yard setbacks of forty feet. The maximum impervious coverage in the R district is fifteen percent and the maximum building height is thirty-five feet and two and one-half stories.
In addition to the R district, the Property is also located in the Transit Village of the Architectural and Site Design Overlay (ASDO) district. The ASDO district does not apply to construction of single-family dwellings. If the Property is used for another purpose, the ASDO district bulk standards apply, which include a minimum lot size of three acres.
The property to the north of the Property is owned by DOT and was acquired in conjunction with the Amwell Road Relocation Project. A portion of the GC parcel has been taken by DOT for the road project and construction of this project renders the GC parcel a corner lot. Prior to the taking, the property was over 35,000 square feet. Following the taking, the property has 220.24 feet of frontage along Steinmetz Road and will have 137.77 feet of frontage along the future relocated Amwell Road. DOT also owns the site to the rear of the Property.
The properties located to the west of the Property are in the Home Occupation Office (HOO) district. The Property is surrounded by single-family dwellings along Steinmetz Road and scattered residential and commercial buildings along Amwell Road.
On October 27, 2005, the Township adopted Phase 2 of its Master Plan Amendment, which recommended that the Township institute a Transit Oriented Village (TOV) district to encourage mixed-use development next to the proposed West Trenton rail line passenger station. If adopted, the Property would be located in this TOV district. In July 2007, a Town Center (TC) district was added to the Township, which may be part of or a replacement for the much discussed TOV district. However, at the time of the trial on October 29, 2007, and at oral argument of this appeal, GC's attorney advised that the zoning remains residential. Therefore, we assume that the Property is still located in an R district.
In April 2006, GC submitted a bifurcated development application to the Board for a use variance. GC proposed to improve the Property with a three-story mixed-use building. The first floor would contain offices and a garage, and the second and third floors would contain residential units. GC required a use variance, as well as several bulk variances and waivers. A preliminary concept plan was created on March 2, 2006, and was revised on July 11, 2006. On April 25, 2006, the Somerset County Planning Board approved the project.
Robert Ringelheim, P.P., A.I.C.P. submitted a report dated June 8, 2006, somewhat critical of the application. He found that the proposed development "[did] not promote the type of pedestrian friendly design that was envisioned for the [TOV] District." However, "[t]he mixed-use development is in keeping with the recommendations for the [TOV] District in the Phase 2 Master Plan Amendment."
The Architecture & Site Design subcommittee reviewed GC's application on July 10, 2006. The subcommittee noted that the main objectives of the TOV district were: to establish a higher density mixed-use district to maximize use of the rail line; to create pedestrian friendly networks; to promote desirable visual environment; to reduce vehicular trips and to link neighborhoods with major elements and community attributes of the Township by promoting pedestrian/bicycle circulation; and to concentrate on office development with limited retail and residential uses. The subcommittee commended GC because the site layout of the building was consistent with the TOV district and the spirit and intent of the ASDO standards. GC was also commended "for working constructively with the subcommittee."
At the July 26, 2006 hearing, GC presented its expert planner, Roger DeNiscia. In response to DeNiscia's comments regarding the reclassification of the Property from an R district to the TOV district, the Board Chair stated, "But that's proposed. It may never come to fruition," and "[w]e have to judge this upon what the existing zoning is right now." Nevertheless, given the foreseeable changes to the zoning district, DeNiscia opined that the application demonstrated the necessary special reasons to warrant a use variance because the Property is particularly suited for the proposed use and it would advance the purposes of planning. The Board Chair questioned DeNiscia further as to how the mixed-use building was particularly suited for the site because of its location in a residential area.
Based upon the repeated comments at the first hearing that GC had proposed development consistent with a proposal to amend the zoning that may never occur, GC indicated at the start of the October 4, 2006 hearing that it would like to amend its application to reduce the number of residential units in the mixed-use building from three to two, one of which would be designated as an affordable housing unit. GC also reduced the height of the building and the number of parking spaces.
GC's planner continued his testimony, explaining the changes made to the proposal and justifying the variances that were being sought. Once again, the Board Chair and some of the other Board members emphasized that the Property is presently located in an R district, and GC should not focus on future permitted uses.
During the October 4, 2006 hearing, the issue of whether a single-family dwelling would be a better use for the Property was addressed. At the end of the hearing, GC's attorney asked Richard Cannerella, the principal of GC and the project's engineer, whether there were any other amendments he would be willing to make to the application in light of the concerns expressed by the Board. GC's principal responded that he believed the proposed mixed-use development was best suited to the site but would amend his proposal to a single-family house due to the negative sentiment by the Board. Although the Board Vice Chair stated that the reservations concerned the intensity rather than the mixed-use nature of the proposal, GC decided to alter its proposal.
On December 6, 2006, GC amended its application from a request for a use variance to a request for a bulk variance required to construct a two-story single-family dwelling. GC requested the following bulk variances: lot area, 43,560 square feet required, 23,727.13 square feet existing; and lot width at setback on Amwell Road, 150 feet required, 137.77 feet existing.
GC's principal described the current state of the Property as an overgrown wooded site with piles of debris on it from wood sheds that may have collapsed. At the hearing GC informed the Board that it had not offered to purchase adjacent properties or to sell the Property to adjacent property owners. The Board Chair responded that the applicant was required to do that; GC's attorney argued that such offers were relevant, but not dispositive. The Board's attorney agreed, but noted that offers to sell or buy adjacent properties are relevant, and "the Board's rules have always been that it wants to see that."
In order to address the issue, GC suggested that the Board grant a conditional variance contingent on it making the appropriate offers. GC also argued that making offers to sell to adjacent property owners did not make sense in this case because one adjacent lot has been taken by DOT and the other contiguous lot is already developed and undersized. Nevertheless, the Board Chair advised GC that it should pursue a sale to the contiguous neighbor.
The owner of the non-DOT-owned contiguous lot was in the audience during the December 6, 2006 hearing, and the Board provided a short recess to allow GC to speak with him. During the recess, the contiguous property owner indicated some interest in acquiring the lot, but neither party was in a position to make an offer.
By letter dated December 14, 2006, GC made an offer to the contiguous property owner to sell the Property for $173,000 based upon an appraisal prepared by Joseph L. Gorsky.
The hearing reconvened on January 17, 2007. At that time, only four members of the Board who initially heard GC's application were present. Rather than carry the matter to another meeting, it was determined that the application could proceed as ...