On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1731-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Lihotz and Ashrafi.
This dispute reviews a municipal governing body's challenge that its zoning board arrogated its zoning authority. Plaintiff Borough of Ridgefield (Ridgefield or Borough) alleges defendant Borough of Ridgefield Zoning Board of Adjustment (Board) exceeded its authority when it granted use and bulk variances to defendant Grand Summit Association, Inc. (Grand Summit) to construct a multi-story age-restricted condominium complex in a commercial zone. Among the arguments presented on appeal is Ridgefield's challenge that the Board's action was an arrogation of its power to zone. The trial judge, in a well-reasoned written opinion, concluded Ridgefield lacked standing to pursue its claims and dismissed its complaint. The trial court also addressed the merits and rejected Ridgefield's position. Following our review of the arguments presented on appeal, the record and the applicable law, we affirm.
Grand Summit proposed the development of an eighty-five unit, fifty-five and older age-restricted residential complex with a multi-level underground parking garage on an one and one-half acre undeveloped parcel of land, designated as Block 1601, Lot 2 on the Borough's tax map. The parcel fronts both Broad Avenue and Grand Avenue and is located in the "Office Low-Rise Zone District" (O-LR).
The parcel's topography impedes development, as the lot is steeply sloped downward. Grand Avenue is "somewhat level," but there is an eight-foot grade change -- from sixty-two feet to fifty-four feet -- along Broad Avenue. The property also slopes back to front with a difference in elevation across the south-end of the parcel of twenty-six feet and across the north-end of thirty-four feet.
Grand Summit's development addressed this unusual topography and also attempted to reflect the varied construction make-up of the property's two bordering streets. The proposed structure is oriented "not visually, but functionally to Broad Avenue" so that it relates less to the "business/industrial" character of Grand Avenue and more to the residential zones on Broad Avenue. The front of the building, which faces Broad Avenue, includes a 1650 square foot ground-floor lobby and concierge area and three additional residential floors. The rear of the building, which faces Grand Avenue, consists of seven floors. Thus, when viewed from Broad Avenue, the property's slope will create the appearance of a smaller, four-story structure.
The proposed residential units are predominately two bedrooms and two bathrooms, ranging from 1103 to 1216 square feet. Additionally, twenty percent of the units, specifically, seventeen one-bedroom apartments, would be devoted to low- and moderate-income residents, complying with standards established by the Council on Affordable Housing (COAH). Other amenities include an 1800 square foot swimming pool, shower and locker area, and a 700 square foot exercise room.
The O-LR district is designed to facilitate the development or redevelopment of small office buildings and specifically prohibits structures exceeding thirty-five feet in height or those devoted to residential use. Ridgefield Code § 390-81-82 (1) and (2). Grand Summit filed its application before the Board seeking a variance for the proposed residential use of the site, N.J.S.A. 40:55D-70(d)(1); a height variance to accommodate the proposed seven-story tower abutting Grand Avenue, with an average building height of 57.52 feet, N.J.S.A. 40:55D-70(d)(6); Ridgefield Code § 390-39.1; and a variance to accommodate the proposed building coverage of thirty-six percent, as only thirty percent is allowed, N.J.S.A. 40:55D-70(c)(1) and (c)(2); Ridgefield Code § 390-39.1. The proposed development complied with all parking and setback requirements.
Public hearings to review Grand Summit's application were held before the Board on November 20, December 14, and December 21, 2006. Grand Summit's engineer, Calisto Bertin, prepared the site plan and conducted a traffic impact study. Bertin discussed the specific geographic characteristics of the property that made it difficult to develop and that the proposed structure was suited to the unusual lot. Regarding the development's anticipated effect on traffic, Bertin concluded the designed traffic pattern and the ample on-site parking would ease any anticipated increase in traffic or parking.
Grand Summit also presented the testimony of the project architect, Conrad Roncati, who addressed handicapped parking and access for emergency and fire equipment. Finally, the project planner, Roger DiNiscia, related the "positive" reasons for granting the variance, as set forth in the Municipal Land Use Law of 1975 (MLUL), N.J.S.A. 40:55D-1 to -129. These included the development meets a "very critical planning need" for age-restricted senior housing, defined as an inherently beneficial use; the property's unique topography is particularity suited for the proposed development but ill-suited for an office complex; community-dedicated senior housing is a specifically defined use that advances a recognized purposes of planning, N.J.S.A. 40:55D-2(l); Ridgefield Code § 390-3(H); and finally, the proposed development would transform the longstanding vacant parcel into a much needed community use.*fn1 DiNiscia additionally addressed the "negative" criteria. He testified the proposed development would not be detrimental to the site or the surrounding area, as (1) there would be no noticeable impact on Grand Avenue's traffic volume that overall would be significantly less than had the site been developed office space, (2) it would not impact drainage, aesthetics or visibility, and (3) any impact on Broad Avenue would be minimized as the building would only appear to be a four-story structure and set-back from the roadway.
During the public comment portion of the hearing, questions were raised regarding drainage, increased traffic in what was characterized as an "already dangerous" driving area, the high cost of the units, which appeared beyond the financial reach of Ridgefield's senior population, and the inaccessibility to emergency and fire personnel. Grand Summit's professionals rebutted each of these contentions.
The hearing resumed on December 14, 2006. DiNiscia continued his testimony, comparing the proposed use to the intent and purpose of Ridgefield's zoning ordinance and zoning plan. Also, DiNiscia addressed the special reasons necessitating the use variance. First, he explained that age-restricted housing is an "inherently beneficial" use having "intrinsic community value," which "should be favorably considered in any municipality." Ridgefield residents would benefit because twenty percent of the units were affordable housing units.
He opined municipalities should encourage age-restricted housing, noting Ridgefield's population within the fifty-five plus age group was twenty-seven percent and "on the rise." Because the site itself borders four zones, it provides broad access to this directed population. Next, given the site's physical limitations, DiNiscia stated the property was particularly suited for the proposed use rather than an office building. The proposed development will better serve the area without worsening drainage or traffic conditions and provide improved aesthetics. Finally, granting the use would not alter the zoning in the area because the structure is oriented toward the multi-family residential district on Broad Avenue.
The next witness was Grand Summit's fire protection engineer, Gerald J. Naylis, who discussed the extra safety measures taken to prevent fire spreading from the parking garage to the interior of the apartment complex. Naylis addressed the fire-resistant garage construction and the proposed fire safety suppression and alarm systems. Naylis also commented on the Ridgefield Fire Department's ability to combat a fire in the complex.
Ridgefield's Fire Chief expressed his concerns regarding signage and the need for extra fire hydrants. An emergency squad representative posed questions regarding ambulance access and whether the development would place a potential strain on services. Grand Summitt's professionals responded to each inquiry, highlighting the building's features designed to make emergency rescue easier, and they committed ...