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Conifer Realty, L.L.C v. Township of Middle Zoning Board of Adjustment

September 9, 2011


On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-667-09.

Per curiam.


Argued May 18, 2011

Before Judges Cuff, Sapp-Peterson and Fasciale.

Plaintiff, Conifer Realty, L.L.C. (Conifer), is a commercial developer appealing the trial court order upholding the denial by the Township of Middle (Township) Zoning Board of Adjustment (Board) of plaintiff's request for use and bulk variances needed to construct affordable housing in the Township. We reverse and remand to the Board for reconsideration of the variance application in accordance with the analysis applicable to inherently beneficial uses, as set forth in Sica v. Board of Adjustment of Wall, 127 N.J. 152, 160-167 (1992).

In February 2009, Conifer submitted an application to the Board requesting use and bulk variances under N.J.S.A. 40:55D-70c and d. It proposed to construct affordable housing on a 9.6-acre tract of land it purchased. The property is in the shape of a trapezoid and fronts Railroad Avenue, a short street that intersects with the much longer Goshen Road on one end and Hand Avenue on the other. The property is surrounded, except for its frontage, by the Cape May National Wildlife Refuge ("Wildlife Refuge"), an undeveloped 11,500-acre preserve owned by the United States Fish and Wildlife Service.

The property is located within the Township's "suburban residential zoning district" (SR). The SR district is zoned for "moderate[-]density residential areas" and permits, as principal uses, "(a) [s]ingle-family detached dwellings" and "(b) [t]wo-family residential buildings, in sewered areas only." Middle Township Code § 250-11. The maximum density for single-family developments is 3.6 units per acre and 4.356 units per acre for two-family dwellings. In addition, the bulk requirements for this district call for a maximum height of thirty-five feet for any building. Middle Township Code § 250-12.

The Township's zoning code also contains an affordable housing component that "sets forth mechanisms by which developers shall provide for a fair share of affordable housing based on growth that is associated with development taking place within the Township[.]" The code outlines general provisions for constructing affordable housing, Middle Township Code § 250-56. Conifer's property and the proposed development plan is included in the Township's December 2008 Housing Element and Fair Share Plan (Fair Share) prepared in accordance with the Fair Housing Act of 1985, N.J.S.A. 52:27D-301 to -329.

In its plan submitted to the Board, plaintiff proposed to construct ninety units, consisting of a combination of two-story townhomes and one-story flats. The ninety units would be distributed among nine connecting residential buildings. Most of the ninety units would have individual entrances, but a few second and third-floor, one-bedroom flats would share common stairways. The resulting density of the plan would be 9.37 units per acre. The buildings' exteriors would be sheathed in vinyl siding and decorated with vinyl cedar shakes, in order to mimic the style of some of the nearby shore-house architecture.

The tallest point of all the buildings in the complex would rise to "just over" thirty-eight feet.

Each unit would have a private balcony or porch and each ground-built unit would be handicapped-accessible or adaptable. The units throughout the complex would be connected by walkways, engendering a residential, neighborhood feel. Finally, the development would feature energy efficient units and solar energy systems to generate electricity.

In its application to the Board, plaintiff sought numerous variances which would enable it to: (1) increase the units per acre that could be constructed; (2) increase the height limit of the buildings; (3) decrease the open space requirements for the units; (4) permit an increase in the size of the planned cul de sac; (5) allow the proposed parking lot to be closer to the buildings than required under the Township code; (6) allow the entrance to the complex parking lot to be less than the requisite 100 feet from the next intersecting street; (7) permit sidewalks adjacent to the parking curb; and (8) reduce the number of driveways connected to the property. As justification for the variances, plaintiff explained:

1. Middle Township has an affordable housing obligation of an amount in excess of 700 affordable housing units. This project will provide ninety (90) . . . units for rent with on-site management in a residential zone surrounded by preserved land and self-storage units. The project is close to the Cape May Court House shopping districts and will become a self[-]contained residential neighborhood.

3. Middle Township's affordable housing obligation is approximately 700 units or more. The Township needs such housing. However, available land zoned for such densities is nonexistent.

4. This project will supply more than [ten percent] of the Township's affordable housing need.

The Board conducted public hearings on May 7 and June 11, 2009. Plaintiff presented testimony on its behalf from its vice president, architect, engineers, and traffic specialists. Residents from the area, as well as representatives from the Wildlife Refuge, the American Littoral Society, Delaware Bayshore Program, and the New Jersey Audubon Society, voiced their concerns or opposition to the proposed development.

On August 13, 2009, the Board adopted a resolution denying the variances, finding that the proposed development's density significantly exceeded the 3.6 units per acre for single-family dwellings, and the 4.356 units per acre for two-family dwellings under the zoning code or ordinance, noting also that "Section 250-53g of the Zoning Ordinance states that no density shall be increased by affordable housing." The Board found:

No traffic study was presented by the applicant other than an analysis of traffic based upon observation on February 9, 2009. Applicant's engineer stated that the analysis was adjusted for summer traffic but no actual observations were made. Testimony from various residents in the neighborhood as to their actual observations of traffic in the area contradicted the applicant's engineer as to the volume of traffic. Additionally, an objector's engineer noted that [eighty to ninety percent] of the vehicle trips entering and exiting the site would pass through the four-way stop controlled sign at the intersection of Mechanic Street, Goshen Road, and Dias Creek Road. The Board notes that intersection is a critical and difficult intersection because of the irregular angles of the intersection of the three roads. The Board is concerned with the hazards that could be created at that intersection by increased traffic levels from the proposed development.

In addition, the Board noted that the development would increase the traffic along Mechanic Street, which it described as a narrow street where the Township Hall, Police Station, County Library, County Board of Elections, Township Public Works facility, and many businesses are located. The resolution also noted that plaintiff acknowledged that two vehicles could not pass on that portion of Mechanic Street near the proposed development if there are vehicles parked on either side of the street. The Board expressed its concern that additional traffic resulting from the proposed development would have an adverse impact upon traffic patterns in this area. Finally, the Board credited the testimony of the environmental advocates who testified that the proposed development would adversely impact the Wildlife Refuge and its habitat.

Plaintiff instituted an action in lieu of prerogative writs against defendant appealing the denial of the variances. Following a hearing, the court issued a written opinion in which it first found that the Board applied the improper legal standard in its evaluation of plaintiff's application. Nonetheless, the court upheld the denial of the variances, concluding that even under the inherently beneficial use legal standard, plaintiff failed to meet the negative criteria required by N.J.S.A. 40:55D-70. The court did not address the denial of ...

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