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Riddhi Siddhi Associates, L.L.C. v. Voorhees Township Zoning Board of Adjustment

July 2, 2010

RIDDHI SIDDHI ASSOCIATES, L.L.C. AND BART KHATIWALA, PLAINTIFFS-RESPONDENTS,
v.
VOORHEES TOWNSHIP ZONING BOARD OF ADJUSTMENT AND MORI PROPERTIES, L.L.C., DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-406-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 18, 2010

Before Judges Parrillo and Lihotz.

Defendants Mori Properties, L.L.C. (defendant or Mori) and Voorhees Township Zoning Board of Adjustment (Board), appeal from a November 9, 2009 order of the Law Division setting aside use variances granted to defendant by the Board and memorialized in the Board's resolution. We affirm.

On April 14, 2008, Mori submitted an application for use and height variance relief pursuant to N.J.S.A. 40:55D-70(d)(1) and (6) to construct a hotel, restaurant, and banquet center on a 10.67 acre lot (the property), located within the Major Business (MB) Zoning District of Voorhees Township, with frontage on the east side of Route 73. Mori's application proposed a mixed-used plan, involving an attached multi-building configuration, including a 14,800 square foot four-story Hampton Inn Hotel, a 9,300 square foot banquet facility, and a 3,900 square foot meeting area to be utilized for pre-function or banquet gathering activities, together with a restaurant already on the premises. Mori's application required a use variance pursuant to N.J.S.A. 40:55D-70d(1), as while restaurants and banquet centers are permitted uses, hotels are not permitted on the east side of Route 73 in the MB zone, although hotels are allowed on the highway's western boundary. The application also required a height variance pursuant to N.J.S.A. 40:55D-70d(6), as the maximum height of structures in the MB zone is limited to forty feet.

The current MB zoning district has undergone various changes within the past five years. By way of background, when Mori first acquired the property on May 30, 2006, hotels were permitted on both sides of Route 73, consistent with the Township's Master Plan of 2005, which was adopted by Resolution 05-028 on July 13, 2005. Ordinance 85-06, adopted in April 2006, codified the recommendations in the 2005 Master Plan Reexamination Report and permitted hotels on both the east and west side of Route 73, stating that the purpose and intent of the MB zone was "[t]o provide for a wide range of business uses . . . along Route 73, recognizing the primary importance of the corridor as a business locus." At the time Ordinance 85-06 was adopted, the Township Committee was aware of the proposed Virtua Hospital project, as evidenced by the 2005 Master Plan Reexamination Report:

Although no formal applications have been made to the Township, it is reported that Virtua-West Jersey Health Systems is planning to develop a new hospital/medical complex on the west side of Route 73, between Route 73 and Dutchtown Road. . . . This land area totals approximately 100 acres on 30 existing lots. . . . Based on a review of available real estate records, it is evident that Virtua has already purchased at least 8 of these lots, totaling approximately 39 acres.

However, just three months after adopting Ordinance 85-06, the Township Committee, in July 2006, adopted Ordinance 90-06 to specifically eliminate hotels as a permitted use on the east side of Route 73. In adopting Ordinance 90-06, the Committee was responding to concerns about large-scale development raised by Sturbridge Lakes, a residential community located approximately one-half mile from the property. Ordinance 90-06 did not alter the previously stated purpose or intent of the master plan, which had been amended accordingly.*fn1

At the ensuing Board hearing, Mori argued that its proposed project would promote the public welfare as the site is suitable for this kind of development and will advance the public good by providing the Township with a facility to handle large private or business group functions, which are currently going to other municipalities, yet be located in an area where the road network can easily accommodate the additional traffic. The proposed hotel is essential to the overall proposal to ensure that the facility can attract groups from outside areas. Long-term guests will support the existing retail along the corridor and provide an incentive for other retail establishments to consider development in that general location.

Mori also stated that the proposed project is consistent with uses found in the MB zone and with adjacent municipalities' development along the Route 73 corridor, thereby rendering the variances sought as consistent with the intent and purpose of the master plan and zoning ordinance.

In support of the application, Mori's principal, Dr. Rajendra Patel, testified that he believed there was a need for a hotel along Route 73, based on his experiences as a community member and as a cardiologist with nearby Virtua Hospital. Patel stated that there was a "tremendous need" to have a hotel in town to house the family members of surgery patients from Virtua Hospital, which was in the midst of construction during the time Mori applied to the Board, as well as visitors attending local functions. Patel, however, was unable to quantify this demand and acknowledged that there were already two hotels in Voorhees, with one - SpringHill Suites - located nearby on Laurel Oak Road.

Derek Sylvester, an expert in hotel management, testified that the occupancy rate at SpringHill Suites was in excess of seventy-three percent and, as such, the market could support another hotel in the area. Despite another nearby hotel - The Indian Cultural Center - and one proposed and approved directly across the street on the west side of Route 73 near Dutchtown Road, Sylvester nevertheless opined that there was a need for a hotel on the proposed site because Virtua would be more than a local hospital but a regional medical center. Sylvester stated that the hotel "would fit [a] unique niche because it's slightly larger than some of the facilities in the area." He concluded that "[t]he hotel would provide . . . clean, attractive, appealing accommodations for travelers up and down . . . Route 73, . . . [and for] residents of [the] community, businesses within the community and the surrounding community and . . . the hospital and . . . its visitors, as well as guests from the catering facility."*fn2

Peter Tyson, a hotel industry consultant, summarizing a market and feasibility analysis from April 2007, testified that a hotel along the east side of Route 73 was needed in light of the Virtua Hospital project, despite the other hotel approved for construction on the west side of Route 73 and the struggling economy, which has negatively affected the hotel industry by between five and ten percent. Nevertheless, in his opinion, there was still enough demand for hotel lodging that the proposed project was sustainable, assuming that the economy would eventually improve. Tyson did admit, however, that if the Virtua project were not approved and completed, he would not recommend that a hotel be built along the east side of Route 73. Although aware that the Virtua project included a residential component, Tyson did not place great weight on that fact in forming his opinion, even though it would influence how great a need he believed existed for a new hotel.

Thomas Scangarello, P.P., Mori's planner, testified that the proposed hotel was not an inherently beneficial use. However, its construction would be compatible with the hospital, which is an inherently beneficial use, as well as with the neighborhood and other uses in the area. Scangarello opined that the planned hotel is aesthetically pleasing, an improvement to that site, and fits into a ten acre lot:

Well, the special reasons that justify the hotel include, number one, as I said before, the fact that we feel the site is particularly well-suited for the hotel given the proximity of what's going on across the street, given the fact that there's a restaurant and a banquet facility to be built behind it. We feel that these special reasons also promote the purposes of zoning. The purposes of zoning being that we're promoting a very desirable visual environment. We're doing ...


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