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Norwood Gardens, LLC v. the Zoning Board of Adjustment of the Borough of Norwood


September 6, 2011


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7300-08.

Per curiam.


Submitted October 20, 2010

Before Judges Ashrafi and Nugent.

Plaintiff, Norwood Gardens, LLC, appeals from a Law Division order that dismissed its prerogative writs action against defendant, the Zoning Board of Adjustment of the Borough of Norwood (the Board), and upheld the Board's denial of variances and site plan approval for development of a forty-nine unit, age-restricted residential condominium complex (the project). We affirm.



In September 2007, plaintiff applied to the Board for preliminary and final site plan approval, a use variance, a height variance, and numerous bulk variances for the project. The Board conducted hearings on plaintiff's application on various dates in February, March, April, May, and June 2008. During the hearings, plaintiff presented the testimony of a professional engineer, an architect, a professional planner, and a traffic engineer. Citizens also addressed the application.

On August 7, 2008, in a written resolution, the Board denied plaintiff's application. Plaintiff filed a complaint in lieu of prerogative writs on September 25, 2008, seeking to set aside the Board's decision. On April 27, 2009, after reviewing the parties' submissions and hearing argument, the trial court dismissed plaintiff's complaint, determining that the Board's decision to deny the application was not arbitrary, capricious, or unreasonable. On May 8, 2009, the court issued an order memorializing its decision. Plaintiff filed a timely appeal.

Following plaintiff's appeal and a pre-argument conference pursuant to the Civil Appeals Settlement Program, we issued an order dismissing the appeal without prejudice so that the Board could consider a revised plan. The Board disapproved the revised plan and the appeal was reinstated.


Plaintiff's experts, primarily its architect and professional engineer, testified and provided exhibits explaining the physical, aesthetic, and engineering aspects of the property and project. Plaintiff proposes to develop the project on a 2.19 acre parcel (the site) located in Norwood's Laboratory Administrative (LA) zone, which permits office buildings, research laboratories, nursing homes, and incidental accessory uses, but not multi-unit, age-restricted developments. The proposed structure is an L-shaped building, ranging from thirty-two feet to fifty-one feet and six inches in height, with forty-nine handicap-accessible condominium units located throughout three residential floors above a parking level. As designed, there are sixty-three parking spaces shown inside the building and an additional fifty spaces outside. The project's density is twenty-two units per acre.

The LA zone requirements and restrictions include fifteen acres of minimum lot area; minimum front, rear, and side yards of 150, 100, and 100 feet, respectively; maximum building height of thirty-five feet; minimum frontage of 400 feet; minimum lot depth of 400 feet; and maximum lot disturbance of eighty percent. Consequently, plaintiff's project requires variances under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -112. Specifically, the project requires variances under N.J.S.A. 40:55D-70, including a d(1) use variance and a d(6) height variance. The project also requires various subsection c bulk variances for minimum lot area; minimum front, rear and side yard setbacks; minimum lot frontage; minimum lot depth; and maximum disturbed land.

The site and nearby buildings and housing developments are located in what the parties describe as an "enclave" surrounded by a fifty-acre wooded reserve on the east, west, and south. Immediately adjacent and contiguous to the site on the north is a nursing home, and to the east, a residential care facility.*fn1

Across a street to the south is Norwood Gardens, an affordable housing complex, with approximately eighteen units per acre. Further to the south, across another street, is a senior housing development, Fox Hill Manor, with twenty-four units per acre, and a height one or two feet higher than the highest point of plaintiff's project. Both housing developments are located in an "overlay" zone, adjacent to the LA zone.

Plaintiff's professional planner, Richard M. Preiss, acknowledged that age-restricted housing does not, by itself, constitute an inherently beneficial use, but testified there are four reasons the positive criteria are satisfied: (1) the use serves the general welfare by being part of, and allowing for, a continuum of care in regard to a concept known as "aging in place"; (2) the site is particularly suited to the proposed use because it is compatible with and complementary to uses in the surrounding area; (3) the site is not suitable or appropriate for uses permitted by the present zoning because the architecture of offices and scientific labs, and the site activity generated by those uses, are inconsistent with the residential character of uses in the surrounding area; and (4) the proposed use advances several purposes of the MLUL.

Preiss explained the first reason: the development will provide a beginning housing choice for those entering the "aging in place cycle." The "aging in place" concept allows a person to easily move from housing intended for healthy and ambulatory retired persons to other forms of residential healthcare as they age, become more infirm, and need help with daily living. Thus, the age-restricted housing would provide part of a larger community to establish a continuum of residential healthcare facilities, beginning with people fifty-five years and older and advancing "all the way up to nursing care." According to Preiss, such housing provides lower cost, lower maintenance, and a greater opportunity for social interaction within the complex.

The second reason is closely related: the site is particularly suited for the proposed use because it is compatible and complementary to adjacent uses, including the nursing home and residential healthcare facility. Additionally, it is "part of this enclave" surrounded by a significant wooded area; that is, the development will be isolated and will have no impact on surrounding single family homes.

Preiss's third reason is that the site is not suitable for uses specified in the current zoning ordinance, namely office uses, scientific laboratories, and nursing homes. He testified that, considering the nature and proximity of the surrounding uses, it would not be appropriate or suitable to develop those kinds of permitted uses in the zone. Similarly, the permitted uses would generate traffic and site activity, which is inconsistent with the quiet, "residential character" of the area and the residential healthcare uses that have been established there.

The fourth reason is that the use will serve several purposes of the MLUL: (1) providing a continuum of care, which will promote the public health and general welfare; (2) providing sufficient space and an appropriate location for residential use; (3) promoting a desirable visual environment; and (4) encouraging senior citizen community housing construction.

As to the negative criteria, Preiss opined that the project will not create a substantial detriment to the public good or the zone plan. The use is compatible with adjacent uses, secluded from surrounding single family homes by virtue of the forest buffer by which they are separated, and visually attractive. Such projects typically have low occupancy, no school children, and demand fewer municipal services while generating substantial tax revenue. Additionally, Preiss testified that such projects are low traffic generators and have no detrimental effect on utilities. Plaintiff's project has no significant environmental issues.

Finally, Preiss testified that the evolving uses surrounding the site, including the development of the residential healthcare facilities and nearby multi-family residences, constitute changed circumstances, which will permit the grant of the variance without impairing the zone plan.

With respect to the bulk variances, Preiss testified that they are substantially related to a project that was never anticipated by the zone. He suggested that if the use were approved, the bulk variances should also be approved to facilitate construction.

Justin Taylor, plaintiff's expert traffic engineer, testified that the proposed project will not result in a significant increase of traffic on surrounding roadways, and that any increases in traffic delay will be less than one second.

Plaintiff also introduced the Borough's Master Plan Reexamination Report of April 2002, which identified in 2002 a need for senior housing, and proposed to fulfill that need by designating an area to the south of Norwood Gardens that would accommodate up to forty senior housing units. That appears to be the site of the Fox Hill Manor senior citizen complex.

Citizens also addressed the application, expressing concern about water runoff, the project's height, parking, elevators, and traffic.

In a resolution dated August 7, 2008, the Board denied the variance application for the following reasons:

(1) That there are concerns including building height in relation to other structures in the area and the large number of bulk and (setback) variances required, the density of this particular plan is overwhelming and overpowering;

(2) That the Application has not proven any benefit to the community or need for this type of age-restricted housing;

(3) That detriments include an increase in traffic, which adds to existing problems on both McClellan Street and Broadway as residents testified during the open portions of the meetings[;]

(4) That concerns exist concerning the capability of the two proposed elevators, in particular the smaller, to maneuver and carry a medical gurney during an emergency;

(5) That the Board also considered that while fourteen units per acre might be deemed conf[o]rming, the forty-nine units proposed doubles what might be considered appropriate for the property[;]

(6) That the proposed structure overwhelms existing buildings, impairs the intent of the bulk requirements of the zoning Ordinance, and negatively impacts the borough's volunteer and police services.


We begin by recognizing that "public [land use] bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adj., 184 N.J. 562, 597 (2005). When judicial review of a local variance application determination is sought, the municipal body's decision is presumed valid, and is not to be disturbed on appeal so long as "it is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998). Because use variances "should be granted only sparingly and with great caution since they tend to impair sound zoning," Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 275 (1967), a reviewing court accords less deference to the grant of a use variance than the denial of one. Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adj., 388 N.J. Super. 67, 75 (App. Div. 2006).

The MLU authorizes a board of adjustment to grant a variance only "[i]n particular cases [and] for special reasons." N.J.S.A. 40:55D-70d. "This is sometimes referred to as the positive statutory criterion for the grant of a use variance." Saddle Brook Realty, LLC, supra, 388 N.J. Super. at 76. The special reasons standard "has generally been defined in relation to the purposes of zoning, see N.J.S.A. 40:55D-2, and [the Supreme Court's] decisions have emphasized the promotion of the general welfare as the zoning purpose that most clearly amplifies the meaning of special reasons." Medici v. BPR Co., 107 N.J. 1, 18 (1987).

Additionally, there must be a showing that the 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. "This is sometimes referred to as . . . the 'negative' statutory criteria for the grant of a variance." Saddle Brook Realty, LLC, supra, 388 N.J. Super. at 76. The grant of a use variance pursuant to this section "requires proof of both positive and negative criteria." Sica v. Bd. of Adj., 127 N.J. 152, 156 (1992).

An applicant for a use variance may establish the positive criteria in one of three ways:

Our case law recognizes three categories of circumstances in which the "special reasons" required for a use variance may be found:

(1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility, see Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 159-60 (1992); (2) where the property owner would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone, see Medici v. BPR Co., 107 N.J. 1, 17 n.9 (1987); and (3) where the use would serve the general welfare because "the proposed site is particularly suitable for the proposed use." Smart SMR, supra, 152 N.J. at 323 (quoting Medici, supra, 107 N.J. at 4). [Saddle Brook Realty, LLC, supra, 388 N.J. Super. at 76.]

Plaintiff has not asserted the first or second category, and must, therefore, "prove and the board must specifically find that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use." Medici, supra, 107 N.J. at 4.

The "negative criteria" incorporate two distinct, but related, forms of proof. First, an applicant must show that the non-conforming use of the property will not cause "substantial detriment to the public good." N.J.S.A. 40:55D-70d. The focus of this criterion is site-specific, and requires an assessment of the proposed variance's impact on the surrounding properties, and whether it will cause "damage to the character of the neighborhood[.]" Medici, supra, 107 N.J. at 22 n.12. That damage must be substantial to weigh against the proposed variance. See Yahnel v. Bd. of Adj., 79 N.J. Super. 509, 519 (App. Div.), certif. denied, 41 N.J. 116 (1963).

The second demonstration required is a showing that the proposed non-conforming use "will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70d. The burdens involved in making this showing were substantially increased by the Supreme Court in Medici. Specifically, applicants seeking a use variance must now offer "an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici, supra, 107 N.J. at 21. Such "enhanced proof" must "reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Ibid.

Plaintiff contends that the Board's decision was arbitrary, capricious, and unreasonable because it was not supported by the evidence in the record. Plaintiff maintains the uncontradicted testimony of its experts established both the positive and negative criteria required for a use variance, and that the Board erred in relying on citizens' complaints to reject the experts' testimony.

Plaintiff first argues that its project will advance the public health, safety, and welfare because it provides for a continuum of care or aging in place. However, as the trial court explained, "there is certainly nothing expressed in public policy that [plaintiff's expert] pointed out by reference to objective standards or otherwise that commends a continuum of care or aging in place as an important adjunct of ... public health, safety or welfare." The expert's testimony that residents of the project could make a transition into the healthcare facility and nursing home, when necessary, was speculative.

Similarly, the expert's opinion that the site is particularly suited for the proposed use because it is "compatible and complementary to adjacent uses" does not establish the positive criteria. "[A]lthough property may be thought to be particularly suitable for a proposed use because the use fits well with the surrounding area[,] ... that does not equate to special reasons." Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 209 (App. Div. 1999).

[W]e have found peculiar suitability special reasons exist where, generally, the use is one that would fill a need in the general community, where there is no other viable location, and where the property itself is particularly well fitted for the use either in terms of its location, topography or shape. [Id. at 210.]

Preiss testified:

I'm not suggesting that this housing type is for everybody. Not everybody wants to live in an age restricted housing.

But it is a housing type that has become more commonplace, and more popular in New Jersey, particularly in the last ten to fifteen years.

And there still seems to be a need for this particular kind of housing, where people who live in the community presently, who get to that stage of their life cycle, wish to remain in the community, rather than - - you know, go down to Florida, or to South Jersey. Particularly, in Bergen County, where - - where I also happen to live. I know the staff and - - in - - since I've been here in my - - last twenty-five years of living in this State.

In meeting the needs of the retired, and the elderly, the housing and medical establishment, and the market place have responded to a concept known as aging in place. . . .

The expert's testimony that "there still seems to be a need for this particular kind of housing," is vague and does not refer to any objective or specific evidence concerning a need in the general community. Nor did Preiss address the issue of other viable locations. The Board did not act arbitrarily when it concluded that plaintiff had not "proven any benefit to the community or need for this type of age-restricted housing."

Plaintiff's expert also testified that the site is not usable for uses presently permitted in the zone. As the trial court pointed out, the expert's testimony related primarily to bulk standards. Although the expert also testified there might be a greater intensity of use that would generate increased activity and site activity inconsistent with the "kind of residential character" already established in the zone, this testimony was largely speculative.

Finally, plaintiff's expert testified that the project would advance the purposes of the MLUL because its design creates a desirable visual environment and provides housing for an aging population. However, the expert did not provide any non-speculative or non-anecdotal testimony that the project was particularly suited for the site. "[A] Board is not bound to accept the testimony of [an] expert." Wilson v. Brick Twp. Zoning Bd. of Adj., 405 N.J. Super. 189, 197 (App. Div. 2009). Here, the expert simply did not establish the particular suitability of the site. See Kramer v. Bd. of Adj., 45 N.J. 268, 288 (1965) (explaining that "the Board has the choice of accepting or rejecting the testimony of witnesses. Where reasonably made, such choice is conclusive on appeal") (internal quotation omitted). The Board's decision was not arbitrary, capricious, or unreasonable.

Because we conclude that plaintiff failed to establish the positive criteria required for a use variance, we need not address the remaining issues.


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