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Advance at Branchburg II, LLC v. Township of Branchburg Board of Adjustment

Superior Court of New Jersey, Appellate Division

November 1, 2013

ADVANCE AT BRANCHBURG II, LLC, Plaintiff-Appellant,
v.
TOWNSHIP OF BRANCHBURG BOARD OF ADJUSTMENT, a municipal public entity of the State of New Jersey, Defendant-Respondent.

Argued October 9, 2013

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1689-11.

Katharine A. Muscalino argued the cause for appellant (Porzio, Bromberg & Newman, P.C., attorneys; Peter J. Wolfson, of counsel; Ms. Muscalino, on the briefs).

Peter E. Henry argued the cause for respondent (Dillon, Bitar & Luther, L.L.C., attorneys; Mr. Henry, of counsel and on the brief).

Mark S. Anderson argued the cause for amicus curiae Township of Branchburg (Woolson Sutphen Anderson, P.C., attorneys; Mr. Anderson and Angela C. Vidal, on the brief).

Before Judges Grall, Waugh, and Nugent.

OPINION

WAUGH, J.A.D.

Plaintiff Advance at Branchburg II, LLC (Advance), appeals the Law Division's November 13, 2012 order dismissing its action in lieu of prerogative writs against the Township of Branchburg Board of Adjustment (Board). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Advance owns a 31.79-acre property in the Township's I-2 industrial zone. The property consists primarily of cleared land, with woods around the edges, and a wetland and riparian zone along Route 22. In addition to an office building on an adjacent lot, nearby uses include additional office and industrial buildings to the west and across Route 22, single-family homes, including those in the North Branch Hamlet and a mobile-home park, to the north and east, and public park land to the south.

Principal uses permitted in the I-2 zone include "[o]ffice buildings for executive, engineering and administrative purposes, " "[s]cientific and research laboratories, " "[w]arehousing, " "[a]ssembly and fabrication using previously manufactured components, " and "[a]gricultural uses." Branchburg, N.J. Ordinance No. 2008-1114 § 3-19. Conditional uses include "[g]overnmental uses and public utility facilities, " as well as principal uses that involve "extraordinarily hazardous substance facilities." Ibid. Housing is not a principal or conditional use in the zone.

In August 2009, Advance filed an application with the Board seeking a use variance, N.J.S.A. 40:55D-70(d)(1), for construction of a multi-family residential development consisting of 292 units, of which fifty-nine would be affordable housing units. The development as proposed consists of twenty-eight buildings, including a mix of apartments, condominiums, and townhouses. Affordable housing units would be integrated with the market-rate units.

The Board took testimony and considered the application during eleven public hearings between July 2010 and July 2011. Advance argued before the Board that inclusion of the fifty-nine affordable units, approximately twenty percent of the total, rendered the entire development an inherently beneficial use for the purposes of the (d)(1) variance. The Board ultimately disagreed and framed its analysis of the application as a "classic, standard" (d)(1) variance, as opposed to one in which the positive criteria were satisfied by the inherently beneficial use. The ...


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