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Krousos v. Zoning Board of Adjustment of Paramus


July 22, 2010


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-834-09.

Per curiam.


Argued May 18, 2010

Before Judges Fuentes, Gilroy and Simonelli.

Defendant Senior Housing Associates of Westchester, Inc. (Westchester) secured approval from the Zoning Board of Adjustment of the Borough of Paramus (Board) to construct a multi-family residential building consisting of fifty-six age- restricted units on a property located at 187-189 Paramus Road. Plaintiffs, JoAnne Krousos and Stefanos Doulous, own property near the site of the proposed development and appeared before the Board as objectors to Westchester's application. After the application was granted, plaintiffs filed an action in lieu of prerogative writs in the Law Division challenging the Board's decision.

Based on the record developed before the Board, and after considering the arguments of counsel, Judge Harris reversed the Board's decision, concluding that the proofs submitted by Westchester did not support the Board's finding that the site in question was particularly suited for its intended use. Judge Harris rejected, however, plaintiffs' argument challenging the Board's decision as a usurpation of the municipal governing body's authority to zone.

Westchester now appeals from the Law Division decision arguing that the proofs submitted to the Board amply supported the grant of a use variance, height variance, and other ancillary bulk variances. We disagree and affirm substantially for the reasons expressed by Judge Harris. We add only the following comments.

Westchester concedes that the proposed fifty-six unit age- restricted building is not an "inherently beneficial" use as that term is generally understood in the field of municipal land use law.*fn1 Thus, to warrant the granting of a use variance under N.J.S.A. 40:55D-70d, Westchester must show that the proposed use promotes the general welfare because it is particularly suitable for that use and the relief requested "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." Ibid.; see also Medici v. BRP Co., 107 N.J. 1, 17-26 (1987).

Furthermore, where an applicant seeks a use variance for a particular location, it can be granted if the proposed use is found to be uniquely suited to that location. Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 76-78 (App. Div. 2006). Thus, in Saddle Brook, we reversed the grant of a use variance for a fast food restaurant in a strip mall because the Board's findings failed to justify its conclusion that the applicant presented proofs demonstrating special reasons for granting the variance. Id. at 81. We set aside the decision because the Board failed to make the required finding that the strip mall was a more suitable location for the restaurant as compared to other surrounding locations. Id. at 77, 81.

In its resolution granting Westchester's application, the Board made the following findings with respect to the suitability of the site:

[T]he intent of the Borough's 2006 Master Plan is to have private developers identify appropriate parcels of land for the development of age restricted housing in appropriate locations to satisfy the stated need.

[ ] The Property is a site that is uniquely and particularly suited to provide age restricted housing which has been identified as a goal and a need in the Borough's 2006 Master Plan. There are no additional suitable sites in the Borough to satisfy this need. The site is over 7 acres in size. It fronts a county road. It has sufficient setbacks, buffers[,] and open space to properly accommodate the use. It is located adjacent to a retail use (the El Cid restaurant) and across the street from the assisted living facility Brighton Gardens. The scale, density[,] and use of the proposed structure will closely resemble the scale density and use of Brighton Gardens. The land to the west of the Property is parkland and will be generally unaffected by this development. The two residential uses located on Lot 6 & 1, Block 1602 have substantial distance between them and the proposed development . . . will have substantial buffering and plantings for the residential uses.

After scrupulously examining the record developed before the Board, Judge Harris found no evidential support that the site selected by Westchester was particularly suitable for this proposed use. Relying on Funeral Home Management, Inc. v. Basralian, 319 N.J. Super. 200 (App. Div. 1999), and Saddle Brook, supra, 388 N.J. Super. 67, Judge Harris rejected the Board's finding as lacking evidential support. The following excerpt from the court's decision illustrates the point:

It's not enough to support that conclusion [that a site is particularly suited] to merely say that this use works on this site. That is[,] that it's compatible with the El Cid Restaurant, or Brighton Gardens, or anything up and down Paramus Road. That's the same argument that failed in . . . Funeral Home Management. That's the same argument that failed in Saddle Brook Realty.

A good fit is not particular suitability. The idea of particular suitability is why is this use most appropriate for this site. And at some level, the plaintiff says, we already know, at least in part, that it can't be true, a la the Caliber*fn2 application, where the Board of Adjustment itself said, for several reasons, including environmental and site suitability reasons that a multifamily use wasn't suitable.

Now the applicant['s] argument is, and it's a very good argument, that's a totally different application. The site is going to operate differently. The numbers of people on the site will be different . . . But the Board of Adjustment doesn't say anything about any of this . . .

But if the congregate care use wasn't appropriate, how is this site with its use -- I mean, at some level, this is just a multifamily development with old people in it . . .

How come the Old Mill Stream former site is particularly suited to age restricted housing? . . . . [T]his looks like a pretty good plan. But does it comport with what D-1 jurisprudence requires?

We agree, incorporating by reference Judge Harris's entire analysis, and affirm substantially for the reasons he expressed in his comprehensive decision rendered orally from the bench on July 8, 2009.


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