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

September 6, 2011

NORWOOD GARDENS, LLC, PLAINTIFF-APPELLANT,
v.
THE ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF NORWOOD, DEFENDANT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

I.

A.

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.

B.

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 ...


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