NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2655-16T3
AVALONBAY COMMUNITIES, INC.,
Plaintiff-Respondent,
v.
TOWNSHIP OF SOUTH BRUNSWICK ZONING BOARD OF ADJUSTMENT,
Defendant-Appellant. ______________________________
Submitted February 5, 2018 – Decided August 2, 2018
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6662-15.
Thomas P. Abode, attorney for appellant.
Bisgaier Hoff, LLC, attorneys for respondent (Robert A. Kasuba and Danielle Novak Kinback, on the brief).
PER CURIAM
Defendant Township of South Brunswick Zoning Board of
Adjustment (Board) appeals from a judgment reversing its resolution denying plaintiff AvalonBay Communities, Inc.'s
application for a use variance. We reverse.
I
Plaintiff is the owner of vacant property in South
Brunswick. The property, approximately twenty-seven acres, is
located in a zoning district that has been designated an age-
restricted residential community (ARRC). The ARRC district
permits multi-family residential uses, but the residents in such
district must be fifty-five years of age or older.
To the west of the property is Route 1, along which are
stores and other commercial entities, and to the east are
single-family homes. The property fronts Major Road, which runs
north of the property. Plaintiff wants to construct non-age
restricted rental housing on the property, specifically,
plaintiff wishes to build four multi-family apartment buildings
and two townhomes, yielding a total of 212 living units. The
majority of the units would have one or two bedrooms, but those
units built to meet affordable housing requirements would have
three bedrooms. Plaintiff has proposed that fifteen percent of
its units be set aside as affordable housing for low and
moderate income individuals.
Plaintiff submitted an application to the Board pursuant to
N.J.S.A. 40:55D-70(d)(1) seeking a variance from the requirement 2 A-2655-16T3 the residents of its housing be over the age of fifty-five.1
After two days of hearings, the Board denied plaintiff's
application, and subsequently issued a resolution memorializing
its findings. We briefly summarize the pertinent evidence
relevant to the issues on appeal.
Plaintiff's real estate expert, Jeffrey Otteau, testified
the demand for age-restricted housing is very low. He claimed
those fifty-five years of age or older tend to remain in the
homes in which they had been living before turning fifty-five
for as long as possible and, upon retirement, leave New Jersey
to live somewhere more affordable. Only three percent of all
households whose residents are fifty-five and older live in age-
restricted housing.
Otteau further noted that, in central New Jersey, it takes
an age-restricted home an average of six years to sell, whereas
the average length of time to sell a non-age restricted home is
approximately five months. However, the strongest market is the
rental one, where there is a rising demand and a scarcity of
apartments. The vacancy rate for an apartment in New Jersey is
three percent and, in the township, 1.8 percent. Otteau also
testified there is a decline in the number of individuals who
1 If ultimately successful in obtaining such variance, plaintiff plans to submit to the Board an application for site plan approval. 3 A-2655-16T3 have children; at the time of the hearings in 2015, there were
400 fewer students in the township's schools than there had been
in 2011. Therefore, according to Otteau, the demand for smaller
homes with only one or two bedrooms is the norm and likely to
continue.
With the exception of the affordable housing units in
plaintiff's proposed use, which would comprise twenty-nine of
the 212 units plaintiff wanted to build, the average rent would
be $2300 per month. Otteau stated the occupants of a household
would need to earn a total gross annual income of $72,000 to
afford such rent.
Plaintiff's expert traffic engineer, Maurice Rached,
testified that, with the exception of the morning rush hour, the
average motorist would not notice an increase in the "wait time"
to reach the intersection of Major Road and Route 1 as a result
of the increase in traffic generated by the project. However,
during morning rush hour, the wait time to reach the
intersection would be 225 seconds, or 3.75 minutes. He did not
state what the wait time would be if age-restricted housing were
built.
4 A-2655-16T3 Rached also testified about the sight distance to the right
and left when one exits the driveway2 of the subject property.
Although the ultimate location of the driveway would affect the
sight distance, where the driveway is currently located, there
would be a sight distance of 450 feet to the left when only 390
feet is required. However, Rached testified plaintiff was
willing to put up a sign instructing drivers they could not turn
left out of the driveway if there was a concern about sight
distance safety.
Plaintiff's planning expert, Jeromie Lange, testified
plaintiff met the positive and negative criteria for a use
variance, see N.J.S.A. 40:55D-70(d)(1). As for the positive
criteria, Lange opined the proposed use would: (1) promote the
general welfare because the use would provide affordable
housing; (2) provide an appropriate transition between the
commercial uses to the west and the low density single-family
homes to the east, making such use particularly suitable for
such site; and (3) fulfill a need for non-age restricted housing
in the community.
As for the negative criteria, Lange opined the proposed use
would not be a substantial detriment to the public good because
such use would not remove housing opportunities for seniors,
2 Currently, there is a temporary, gravel driveway at the site. 5 A-2655-16T3 given they could live in the housing plaintiff wants to build.
Further, the increase in traffic generated by the proposed use
would be minimal.
Lange further testified the proposed use would not
substantially impair the intent and purpose of the zone plan or
the applicable zoning ordinance because the purpose of the ARRC
zone is to provide realistic opportunities for housing.
Specifically, as the proposed use would make housing available
to everyone, including seniors, the proposed use is not contrary
to the zone plan or ordinance.
As stated, immediately following the second day of
hearings, the Board voted to reject plaintiff's application for
a use variance. In the Board's resolution, it detailed the
testimony and, although not evidence, provided the substance of
the board members' comments and their questions of witnesses.
The Board's ultimate findings were as follows.
Although the Board found plaintiff's planning expert's
testimony credible insofar as describing the "layout of the
site" and why the proposed use may provide an adequate
transition between the commercial uses to the west and the
single family homes to the east, the Board found the testimony
failed to provide any evidence to support the premise that non-
6 A-2655-16T3 age restricted housing was particularly suitable for the
proposed site.
In addition, the Board found plaintiff failed to meet the
negative criteria, pointing out the purpose of the ARRC zone, as
expressly stated in the applicable zoning ordinance, states:
The intent and purpose of the ARRC zone is to provide realistic opportunities for construction of low- and moderate-income housing for senior citizens not only to implement the township housing element and fair-share plan which provide residential dwellings to be occupied by persons 55 years of age or older, as further defined and subject to the exceptions in and under the U.S. Fair Housing Act, as amended, such dwellings to be of a type which promotes the efficient delivery of municipal services, access to mass transportation, the provision of recreation facilities by the developer for the sole use by the residents and their guests, and to be designed specifically for adult citizens.
[SOUTH BRUNSWICK CODE OF ORDINANCES, ch. 62, art. IV, div. 3, subdiv. XXXXI, § 62-1721 (2006).]
Because the purpose of the zone is to provide senior
housing that meets the standards in the ordinance, the Board
concluded plaintiff's proposed use is "an affront" to the intent
of the ordinance. The Board also pointed out the 2001 master
plan and a 2007 reexamination report of the master plan stated
there is to be age-restricted housing in the township.
7 A-2655-16T3 Plaintiff filed a complaint in lieu of prerogative writs in
the Law Division, challenging the Board's resolution. The trial
court reversed the Board. In its decision, the court in large
part relied upon comments made by Board members before the Board
voted upon plaintiff's application and before the resolution was
issued. In addition, having listened to a recording of the
hearing, the court also relied upon "the manner" in which the
members' remarks were made, indicating it was influenced by the
tone or inflection of a speaker's voice. The court stated:
[T]his court finds and concludes that the vote of those members that voted to deny the application was unreasonable. The DVD of the hearing gives this court the opportunity not only to listen to the remarks being made, but also the manner in which they are made.
After listening to the members' remarks and considering the
evidence, the court concluded the Board rejected plaintiff's
application for reasons related to "site plan issues" and failed
to consider whether plaintiff's proposed use satisfied the
positive and negative criteria. The court stated:
It is clear that those members that voted to deny the application did so mainly on site plan issues. The thrust of those members who voted to deny the application were clearly concerned more about site plan issues, than the age-restriction issue, those issues related to [the] impact of ingress and egress [from the development;]
8 A-2655-16T3 it also included the intensity of the site . . . .
There was a clear concern for the number of the units proposed and the traffic that would be generated as a result.
The court was also critical of the Board for not
appreciating that, although the ordinance requires age-
restricted housing in the subject zone, plaintiff's proposed
housing would not exclude those fifty-five years and older.
Therefore, the court reasoned, the proposed use complies with
the subject ordinance and, further, provides both affordable and
senior citizen housing, which supports the general welfare of
the community.
The court found plaintiff satisfied the positive and
negative criteria, entitling it to a "D1" use variance.
According to the court,
[t]he application satisfies a number of the purposes of zoning as testified to by the plaintiff's planner. . . . The site is particularly suited for the use in that multifamily units are permitted. . . . Relative to the negative criteria, if the application were approved and constructed, there would be no visible difference between it and the age-restricted development. The only recognizable difference would be in the age of the occupants. Because of that recognizable difference, there may be more automobile trips in and out of the development, but that impact will have to be justified by the plaintiff at the site plan review. . . . 9 A-2655-16T3 The application is deemed approved, but only to the extent that the age-restriction is lifted.
This appeal ensued.
II
On appeal, the Board contends the trial court erred when it
reversed its resolution denying plaintiff's application for a
use variance. The Board argues plaintiff failed to satisfy the
positive and negative criteria and, thus, the Board's decision
was not arbitrary, capricious or unreasonable.
A zoning board's decision carries a presumption of
validity, see Northeast Towers, Inc. v. Zoning Bd. of Borough of
W. Paterson, 327 N.J. Super. 476, 493 (App. Div. 2000), is
entitled to "substantial deference" from a reviewing court, and
may be reversed only if "arbitrary, unreasonable, or
capricious." N.Y. SMSA, Ltd. P'ship v. Bd. of Adjust. of
Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). That
deference is greater when a court reviews a denial as opposed to
a grant of a variance. Nynex Mobile Comm'ns Co. v. Hazlet Twp.
Zoning Bd. of Adjust., 276 N.J. Super. 598, 609 (App. Div.
1994). In addition, zoning boards, "because of their peculiar
knowledge of local conditions must be allowed wide latitude in
the exercise of delegated discretion." Kramer v. Bd. of
Adjust., 45 N.J. 268, 296 (1965). 10 A-2655-16T3 Because the trial court relied in part upon comments made
by individual Board members during the hearing to arrive at its
conclusions, we cite the following from N.Y. SMSA, Ltd. P'ship
v. Bd. of Adjustment of Tp. of Weehawken, which instructs that:
remarks [made by Board members] at best reflect the beliefs of the speaker and cannot be assumed to represent the findings of an entire Board. Moreover, because such remarks represent informal verbalizations of the speaker's transitory thoughts, they cannot be equated to deliberative findings of fact. It is the resolution, and not board members' deliberations, that provides the statutorily required findings of fact and conclusions.
[N.Y. SMSA, 370 N.J. Super. at 333-34 (citing Scully-Bozarth Post #1817 v. Planning Bd. of Burlington, 362 N.J. Super. 296, 311-12 (App. Div. 2003)).]
An applicant seeking a use variance must demonstrate
"special reasons" commonly referred to as the positive criteria
why the variance sought should be granted. N.J.S.A. 40:55D-
70(d)(1). "Special reasons" are those that promote the general
purposes of zoning enumerated in N.J.S.A. 40:55D-2, see
Burbridge v. Mine Hill, 117 N.J. 376, 386 (1990) (citing Kohl v.
Mayor of Fair Lawn, 50 N.J. 268, 276 (1967)), and fall into one
of three categories:
(1) [W]here the proposed use inherently serves the public good, such as a school, hospital or public housing facility; (2) where the property owner would suffer "undue 11 A-2655-16T3 hardship" if compelled to use the property in conformity with the permitted uses in the zone; and (3) where the use would serve the general welfare because the proposed site is particularly suitable for the proposed use.
[Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjust., 388 N.J. Super. 67, 76 (App. Div. 2006) (citations omitted)(emphasis added).]
We note here the first special reason does not apply in
this matter. It is settled law that there is "no basis under
our current statutory or decisional law to hold that the
inclusion of affordable housing as a relatively small component
of a much larger residential development transforms the entire
project into an inherently beneficial use for purposes of
obtaining a (d)(1) variance. . . ." Advance at Branchburg II,
LLC v. Branchburg Tp. Bd. of Adjustment, 433 N.J. Super. 247,
258 (App. Div. 2013). In Advance, we rejected the plaintiff-
developer's argument that setting aside twenty percent of its
units as affordable housing rendered the entire development an
inherently beneficial use for the purposes of a (d)(1) variance.
Ibid.
As for the second special reason, for the purposes of this
matter, it suffices to say that "[s]pecial circumstances are not
established by a showing that the proposed use would be more
profitable to the owner than the permitted uses." Charlie Brown
12 A-2655-16T3 of Chatham, Inc. v. Bd. of Adjustment, 202 N.J. Super. 312, 329
(App. Div. 1985)(citing Shell Oil Co. v. Zoning Bd. of Adj.
Shrewsbury, 127 N.J. Super. 60, 66. (1973)).
As clarified by our Supreme Court in Price v. Himeji, LLC,
214 N.J. 263, 293 (2013), the third special reason requires a
finding "the property is particularly suited for the proposed
purpose, in the sense that [the property] is especially well-
suited for the use, in spite of the fact that the use is not
permitted in the zone."
An applicant for a use variance must also satisfy the
"negative criteria." Specifically, an applicant must show 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." Price, 214
N.J. at 286 (quoting N.J.S.A. 40:55D-70). As explained by the
Court in Price:
The showing required to satisfy the first of the negative criteria focuses on the effect that granting the variance would have on the surrounding properties. Medici v. BPR Co., 107 N.J. 1, 22 n. 12 (1987). The proof required for the second of the negative criteria must reconcile the grant of the variance for the specific project at the designated site with the municipality's contrary determination about the permitted uses as expressed through its zoning ordinance." Id. at 21.
13 A-2655-16T3 [Ibid.]
Applying these standards, we are satisfied the trial court
erred when it reversed the Board's resolution. The record
supports the Board's finding that plaintiff failed to establish
the positive and negative criteria for the issuance of the use
variance; namely, that special reasons exist for the variance
and that the variance can be granted without substantial
detriment to the public good and without substantially impairing
the intent and purpose of the zone plan and zoning ordinance.
Specifically, as for the positive criteria, plaintiff
argued its "special reasons" were that fifteen percent of its
proposed use was going to be affordable housing; the proposed
use would act as a transitional one between the uses to the west
and to the east; and there is a need for non-age restricted
housing in the community.
As previously noted, the first special reason does not
apply because the proposed use does not inherently serve the
public good. As for the second special reason, although it
provided evidence the demand for senior housing is low and the
demand for non-age restricted rental housing is high, plaintiff
did not claim it would suffer an undue hardship if compelled to
use the property in conformity with the permitted uses in the
zone. The special reasons plaintiff proffered were as stated 14 A-2655-16T3 above. Even if we were to surmise plaintiff implicitly asserted
it would suffer an undue hardship, plaintiff failed to meet the
third special reason.
Specifically, plaintiff failed to show the proposed site is
especially well-suited for the site. See id. at 293. Plaintiff
was required to prove that, even if there were a need for its
proposed use, "the general welfare is served because the use is
peculiarly fitted to the particular location for which the
variance is sought." Cox, New Jersey Zoning and Land Use
Administration, § 32-4.1 (2018) (emphasis in the original)
(citing Fobe Associates v. Mayor and Council of Demarest, 74
N.J. 519 (1977)). Further, the fact the proposed housing would
act as a transition between the uses to the east and to the west
of the site does not suffice, because the permitted use would
achieve the same result. See Degnan v. Monetti, 210 N.J. Super.
174, 185 (App. Div. 1986).
As for the first prong of the negative criteria, there was
little evidence about the effect the variance would have on the
surrounding properties. But even if the proposed use would not
cause any substantial detriment to such properties, plaintiff
failed to satisfy the second prong of the negative criteria.
The master plan provides that one of the goals of the
"Housing Plan Element" is to "[p]rovide for a variety of housing 15 A-2655-16T3 choices through the implementation of South Brunswick's
affordable housing obligation as follows: . . . . Encourage
adequate affordable housing for low and moderate income families
(including senior citizens) in conformance with the approved
housing plan."
The subject zoning ordinance, cited above, explicitly
states the intent and purpose of the ARRC district is to provide
"realistic opportunities for construction of low- and moderate-
income housing for senior citizens," which are to be of a type
that promotes "the efficient delivery of municipal services,
access to mass transportation, the provision of recreation
facilities by the developer for the sole use by the residents
and their guests, and to be designed specifically for adult
citizens." SOUTH BRUNSWICK CODE OF ORDINANCES, ch. 62, art. IV,
div. 3, subdiv. XXXXI, § 62-1721 (2006).
In light of the pertinent language in the master plan,
which makes clear the township seeks to provide affordable
housing for low and moderate income senior citizens, and the
language in the subject zoning ordinance, which states the
permitted uses are limited to age-restricted housing for
seniors, plaintiff clearly failed to carry its burden of showing
the proposed use will not substantially impair the intent and
the purpose of the zone plan and zoning ordinance. 16 A-2655-16T3 While fifteen percent of plaintiff's proposed housing would
be set aside for affordable housing and thus eligible seniors
could live in such housing, eighty-five percent of the housing
would not be affordable. The proposed use is predominantly
inconsistent with what the master plan and zoning ordinance
envision for this particular district - senior housing for low
and moderate income seniors. In addition, plaintiff failed to
proffer evidence that any of its proposed housing would provide
the amenities for seniors specifically mandated in the
ordinance, such as access to mass transportation or recreation
facilities designed specifically for adult citizens.
As for the trial court's findings, it relied in part upon
the comments of Board members to arrive at its conclusions, none
of which was evidence. The fact a Board member commented upon
or asked about a site plan issue or some other irrelevant aspect
of plaintiff's application cannot be used as a reason to reverse
– or affirm, for that matter – the Board's resolution. In
addition, for the reasons set forth above, the trial court did
not fully recognize the extent to which plaintiff failed to
fulfill the applicable positive and negative criteria.
Finally, the trial court was placated by the fact the
proposed use would be essentially the same as the use required
by the zoning ordinance, specifically, housing, the only 17 A-2655-16T3 difference being the residents would be of all ages, and that
plaintiff was at least providing some affordable housing.
However, as noted, the master plan and the zoning ordinance
clearly seek housing in such zone for low and moderate income
seniors in this district. Further, there was no evidence
plaintiff's housing would have the amenities the ordinance
requires for seniors.
Finally, plaintiff is not without a remedy. Plaintiff
contends the only kind of housing permitted in the subject zone
is no longer in demand in the township, not just in this
particular zone. If a party considers a zoning ordinance
outdated or arbitrary, it may go before a municipality's
governing body and seek an amendment to the zoning ordinance.
In fact, if, as plaintiff alleges here, the alleged deficiency
is common to all or other areas of the municipality, the
appropriate remedy is to seek relief from the governing body.
See Brandon v. Bd. of Comm'rs, 124 N.J.L. 135, 150 (Sup. Ct.
1940)(observing if the difficulty with a zoning ordinance "is
common to lands in the vicinity, by reason of arbitrary zoning,
and is therefore of general rather than particular application,
the remedy lies with the local legislative body or in the
judicial process.").
18 A-2655-16T3 Accordingly, because the Board's decision was not
arbitrary, capricious or unreasonable, the judgment entered by
the trial court is reversed.
Reversed and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
19 A-2655-16T3