Monarch Communities, LLC, Etc. v. Township of Montville

• Court: New Jersey Superior Court Appellate Division
• Decided: February 3, 2025
• Docket: A-0929-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0929-23

MONARCH COMMUNITIES, LLC, a Limited Liability Company of the State of Delaware,

Plaintiff-Respondent,

v.

TOWNSHIP OF MONTVILLE, MAYOR AND COUNCIL OF THE TOWNSHIP OF MONTVILLE,

Defendants,

and

TOWNSHIP OF MONTVILLE ZONING BOARD OF ADJUSTMENT,

Defendant-Appellant. ______________________________

JMC INVESTMENTS, LLC, a New Jersey Limited Liability Company,

Plaintiff-Respondent, v.

TOWNSHIP OF MONTVILLE, MAYOR AND COUNCIL OF THE TOWNSHIP OF MONTVILLE,

Defendant-Appellant. ________________________________

Argued January 23, 2025–Decided February 3, 2025

Before Judges Mawla, Walcott-Henderson, and Vinci.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket Nos. L-1986-21 and L-1995-21.

Kelly M. Carey argued the cause for appellant (Pashman Stein Walder Hayden, PC, attorneys; Bruce J. Ackerman and Kelly M. Carey, on the briefs).

Antimo A. DelVecchio argued the cause for respondent (Beattie Padovano, LLC, and Giordano Halleran & Ciesla, PC, attorneys; Antimo A. DelVecchio and Paul H. Schneider, of counsel and on the brief; Daniel L. Steinhagen, on the brief).

PER CURIAM

A-0929-23 2 Appellant the Township of Montville Zoning Board appeals from a

December 23, 2022 order reversing its denial of respondent JMC Investments,

LLC's application for d and c variances, related to the construction of a senior

housing facility and remanding the application to the board for approval. We

affirm.

Respondent proposed to build a 165-unit facility, which had eighty-one

apartments for independent and semi-independent residents, fifty-eight assisted

living units, and twenty-six memory care units. The property, which was

formerly a farm, is comprised of 8.077 acres, and fronts a township road, a

county road, and has 510 feet of frontage. Abutting the property is a school bus

depot and municipal complex to the north, single family homes to the south and

east, and a town house development to the west. The project required variances

because the property is located in the township's R-20A residential zone, which

and does not permit the type of units respondent proposed to construct.

Respondent sought c variances to construct a building three stories high

as the zone allowed a maximum of two and one-half stories. However, the

proposed overall height of the building would not exceed the township's zoning

ordinance. It sought a variance for building coverage of 17.7%, which was

greater than the sixteen percent permitted in the zone. Respondent requested a

A-0929-23 3 variance for thirty-nine percent impervious lot coverage, where the maximum

permitted was thirty percent. It requested a parking set back of 4.6 feet from the

building and 29.3 feet from the street, where fifteen and fifty feet were required,

respectively. Respondent sought a monument sign and an excess slope distance,

which are not permitted within the zone.

The township design review committee approved the plan after some

adjustments and the application was deemed complete. The board considered

testimony on behalf of respondent from: its principal; an engineer; an architect;

a traffic engineer; a real estate appraiser; a senior housing analyst; and a

professional planner. It also heard testimony from the township engineer and

planner.

Respondent committed to constructing twenty-five of the 165 units as

affordable units. There would be few cars on the site due to the elderly residents.

It offered testimony about the engineering aspects, landscaping, and building

design. The traffic engineer explained why there would be little traffic and why

the proposed parking was appropriate. The facility would not strain municipal

resources because it would have a private ambulance service and staff on-site.

According to the professional planner, the parking complied with the

Residential Site Improvement Standards (RSIS) and no variance was required.

A-0929-23 4 The appraiser explained why the project would have no negative impact on the

value of nearby properties. The housing analyst testified there would be

significant demand for this use from residents. The professional planner

explained the proposed uses were inherently beneficial and the project would

not be a substantial detriment to the public good or impair the intent and purpose

of the zone plan or township zoning ordinances.

The board denied the application and issued a corresponding resolution

on August 4, 2021. It found respondent failed to show the use variances could

be granted without substantial detriment to the public good and would not

substantially impair the intent and purpose of the zone plan and zoning

ordinance. The resolution referenced a nearly identical application by a

different party in 2018, requesting the property be rezoned for a senior care

facility that was denied by the township committee.

Respondent filed a complaint in lieu of prerogative writs and following a

bench trial, the trial court issued a written opinion reversing and remanding the

application for reconsideration. The court found "no dispute that the proposed

use is 'inherently beneficial.'" The board "concluded essentially the project is

too big, too noisy[,] and will create too much traffic." However, the record did

not support these conclusions. Although the building was one and one-half

A-0929-23 5 "stories bigger than permitted . . . [t]here [was] no evidence . . . why that [was]

a detriment, visual or otherwise."

The trial court noted there were objections to noise that would emanate

from the proposed building's trash compactor and generator. "The builder

agreed to enclose the area and do a noise test after construction to confirm

compliance with noise regulations." The court observed "generators have

become almost customary with single family homes after recent storm[-]related

power outages." Traffic was not an impediment to the project because "the only

testimony was that due to the age and anticipated disabilities of the

residents[c]ar ownership and hence traffic would be minimal."

The maximum units per acre permitted by the township was fourteen. The

court found the project's proposed 20.1 units per acre was not a bar to approving

the application because "the units would be smaller than traditional housing

units. The building itself would not be larger than a single-family home were it

to be built on the site." The township engineer concluded the landscape plan

was excellent. This included a tall berm topped by trees in between the facility

and the single-family homes to its south.

The trial court found the record did not support the township's finding the

project was too big. There were other large structures "[i]n the immediate

A-0929-23 6 vicinity[, namely] a bus depot, town house development, Montville Municipal

[C]omplex, as well as single family homes." Therefore, "[t]he size would be

permitted if it were a house except for [its] height."

The township engineer testified the impervious lot coverage complied

with township ordinance. The trial court concluded the excess impervious

coverage was not a detriment because "[e]xcept for the height variance, the

building complies with current zoning for a single[-]family home." The court

pointed out that "[a]ny drainage issue could have been the subject of conditions

[imposed by the board] to remedy any problem[,] but none were considered." It

does not appear that there were any such issues.

The court found the board was mistaken that it could not grant the

application because it could not re-zone the property for the proposed use. The

board "offered no legal authority for this position . . . [and] those areas the

governing body considered appropriate were never re-zoned to permit this use

anywhere."

The trial court reversed and remanded because there was "[n]o appropriate

weighing of detriments and conditions" to determine whether to grant the

application. Indeed, "[t]he building size remained the principal focus although

the [b]oard did not articulate the factual basis for that conclusion." Therefore,

A-0929-23 7 "[b]ecause the [b]oard determined not to consider conditions at all, it [was]

appropriate to remand . . . for conditions it may wish to impose including but

not limited to drainage." However, the court held the board could not reduce

the number of units because respondent met its burden of proof on that issue.

The court remanded for consideration of conditions pursuant to Sica v. Board of

Adjustment, 127 N.J. 152 (1992).

The board conducted a remand hearing and issued a resolution in

accordance with the trial court's remand order on March 1, 2023. The resolution

imposed thirty-seven conditions for approval and noted the board reserved its

right to appeal from the trial court's December 23, 2022 order overturning its

initial resolution denying respondent's application.

I.

"When reviewing a trial [judge's] decision regarding the validity of a local

board's determination, 'we are bound by the same standards as was the trial

[judge].'" Jacoby v. Zoning Bd. of Adj. of Borough of Englewood Cliffs, 442

N.J. Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., LLC v.

Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)).

"[W]hen a party challenges a . . . board's decision through an action in lieu of

prerogative writs, the . . . board's decision is entitled to deference." Kane Props.,

A-0929-23 8 LLC v. City of Hoboken, 214 N.J. 199, 229 (2013). Thus, we must "give

deference to the actions and factual findings of local boards and may not disturb

such findings unless they [are] arbitrary, capricious, or unreasonable." Jacoby,

442 N.J. Super. at 462.

The Municipal Land Use Law (MLUL) gives zoning boards the power to

grant or deny use, density, and height variances. N.J.S.A. 40:55D -70(d).

"Because of the legislative preference for municipal land use planning by

ordinance rather than variance, use variances [under N.J.S.A. 40:55D-70(d)(1)]

may be granted only in exceptional circumstances." Kinderkamack Rd. Assocs.,

LLC v. Mayor & Council of Borough of Oradell, 421 N.J. Super. 8, 12 (App.

Div. 2011).

As a result, "a municipal board of adjustment may permit 'a use or

principal structure in a district restricted against such use or principal structure'

only where the applicant can demonstrate 'special reasons' for the variance" also

known as "positive criteria." Ibid. (quoting N.J.S.A. 40:55D-70(d)(1)). Further,

"a variance application must meet the 'negative criteria,' . . . by 'showing that

[the] variance can be granted without substantial detriment to the public good

and will not substantially impair the intent and purpose of the zone plan and

zoning ordinance.'" Ibid. (alteration in original) (first quoting New Brunswick

A-0929-23 9 Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 160 N.J. 1, 6 (1999),

then quoting N.J.S.A. 40:55D-70(d)).

"Special reasons" include "where the proposed use inherently serves the

public good, such as a school, hospital or public housing facility." Saddle Brook

Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adj., 388 N.J. Super. 67,

76 (App. Div. 2006) (citing Sica, 127 N.J. at 159-60). "All use variance

applicants must satisfy the first prong of the negative criteria, which requires

proof that 'the variance can be granted "without substantial detriment to the

public good."'" Kinderkamack Rd. Assocs., LLC, 421 N.J. Super. at 13 (quoting

Medici v. BPR Co., 107 N.J. 1, 22 n.12 (1987)).

"[I]f the proposed use is inherently beneficial, the applicant's burden of

proof is significantly lessened because 'an inherently beneficial use

presumptively satisfies the positive criteria.'" Med. Ctr. at Princeton v. Twp. of

Princeton Zoning Bd. of Adj., 343 N.J. Super. 177, 200 (App. Div. 2001)

(quoting Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152

N.J. 309, 323 (1998)).

The Legislature has defined an "inherently beneficial use" as one "which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such a use includes, but is not limited to, a hospital, school, child care center, group home, or a

A-0929-23 10 wind, solar or photovoltaic energy facility or structure." N.J.S.A. 40:55D-4. An inherently beneficial use is evaluated under the standard set forth in Sica . . . . The applicant under this more relaxed standard need not satisfy the "enhanced quality of proof" set forth by the Court in [Medici, 107 N.J. at 21].

Under Medici, the first inquiry under the negative criteria focuses on the potential effects of the variance on the surrounding properties. "The board of adjustment must evaluate the impact of the proposed use variance upon the adjacent properties and determine whether or not it will cause such damage to the character of the neighborhood as to constitute substantial detriment to the public good." Id. at 22 n.12 (internal quotation marks and citation omitted).

Satisfaction of the second prong of the negative criteria analysis normally requires the applicant also "demonstrate through 'an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.'"

[Advance at Branchburg II, LLC v. Township of Branchburg Bd. of Adj., 433 N.J. Super. 247, 254-55 (App. Div. 2013) (second omission in original).]

The Sica standard is different and requires:

First, the board should identify the public interest at stake.

....

Second, the [b]oard should identify the detrimental effect that will ensue from the grant of the variance.

A-0929-23 11 ....

Third, in some situations, the local board may reduce the detrimental effect by imposing reasonable conditions on the use.

Fourth, the [b]oard should then weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good. This balancing, "[w]hile properly making it more difficult for municipalities to exclude inherently beneficial uses permits such exclusion when the negative impact of the use is significant. It also preserves the right of the municipality to impose appropriate conditions upon such uses."

[127 N.J. at 165-66 (quoting Baptist Home of S. Jersey v. Riverton, 201 N.J. Super. 226, 247 (Law Div. 1983)).]

II.

The board contends the trial court's decision usurped the power of the

planning board, which had previously been asked twice to permit this use on the

site and denied it when it updated the Montville master plan in 2019. It argues

it was reasonable for it to conclude respondent's application was substantially

inconsistent with the intent and purpose of the zoning plan and township

ordinances.

A-0929-23 12 The board asserts it properly applied the Sica balancing test when it

considered respondent's application. It found the use inherently beneficial, but

then weighed the detrimental effects, namely the excessive density, which was

far beyond the norm and comparable facilities, and the fact the facility was

detrimental in a residential zone, and respondent did not show why the facility

could not be constructed as a two and one-half story building with fewer units

like other congregate care facilities. Other detrimental effects included the

aesthetics, noise, and traffic created by having a facility next to a private

residential development. Respondent also lacked an evacuation plan in violation

of the MLUL and did not amend its application to include a reduction of

proposed units or the otherwise-stated necessities for conformity with township

ordinances. Therefore, the board claims it properly concluded the detriments

were too pervasive to be remedied by the imposition of conditions.

The board argues it analyzed each of respondent's requests for the seven

requested c variances and respondent failed to show a need for them based on a

hardship or that the variances would conform with the neighborhood scheme. It

alleges it had the discretion to reject some or all of respondent's expert opinions

even where there was no contradictory expert testimony. The board considered

A-0929-23 13 all the expert testimony and explained why it accepted or rejected it. Therefore,

it argues it did not act in an arbitrary, capricious, or unreasonable manner.

The board asserts the trial court impinged on its authority to impose

conditions on the granting of a variance. The court's decision prevented it from

addressing "the main negative effects" of the proposal by reducing the number

of units. If the court felt the application represented an inherently beneficial use

that had to be approved, it should have limited its finding accordingly and

allowed the board to impose all appropriate mitigating conditions as required by

Sica. In essence, the court restrained the board from applying the third prong of

Sica.

The trial court also misapplied Sica because it "oversimplified" the board's

concerns about the size, noise, and traffic issues associated with the project. The

court also did not understand the scale of the building when it found it would

not be larger than a single-family home.

The board argues the trial court ignored its expert's testimony that the

building's flatter roof design would not be in conformity with the township's

requirements for a residential area. It notes the court erroneously recounted the

board's vote on the resolution was nearly evenly split, whereas a clear majority

of the board voted to deny the application.

A-0929-23 14 The board urges us to reinstate its decision because it followed Sica and

concluded the building had a significant negative impact and was contrary to the

updated master plan. At a minimum, the board requests us to remand for a full

consideration of the d and c variances, design waivers, and other conditions

necessary for rezoning.

III.

We reject the board's argument that respondent's application was

impermissible because the zoning board omitted the property from being used

for senior housing. The record shows the township's master plan had not yet

been adopted and had not included a specific vision for respondent's property.

The master plan controls only once it has gone into effect. N.J.S.A. 40:55D-89.

Further, the fact that other properties have been zoned for senior care did not

preclude respondent's property from being rezoned by granting a use variance.

See generally N.J.S.A. 40:55D-70(d); Sica, 127 N.J. at 162-63.

There is no credible argument why the requested variances to allow senior

housing on respondent's property would substantially deviate from the current

scheme, which includes single family residences, a bus depot, and a municipal

complex. Given the undisputed inherently beneficial use of senior housing, the

trial court correctly found the board acted unreasonably when it concluded the

A-0929-23 15 detrimental effects of: allegedly poor aesthetics, including height and density;

noise and traffic levels; and parking, warranted denial of the variances and the

application. The record amply supports the trial judge's findings rejecting these

claims.

The proposed number of parking spaces complied with the RSIS, N.J.A.C.

5:23-4.14, and the board's engineer even recommended a reduction of the

parking. The noise concerns pertaining to the facility's trash compactor are also

unpersuasive because it was located opposite the residential area, facing the bus

depot, and the board's engineer was satisfied it could be tested for noise

compliance after construction. Moreover, the trial court afforded the board the

opportunity to impose conditions under the third prong of Sica to address these

issues and the others it raised, but the board did not follow suit.

The only restriction imposed by the trial court was to rule the board could

not require respondent to decrease the 165 units proposed in its application. It

is obvious from our review of the record that without this restriction, the board

could at once approve the application but also condition it on the construction

of a smaller number of units, effectively extinguishing the viability of the

A-0929-23 16 project. The gravamen of the board's opposition was based on the size of the

building and the units it contained.1 This would lead to an unreasonable result.

For these reasons, we reject the board's assertion the trial court limited its

authority to act on remand or prevented the board from engaging in a Sica

analysis. The unique circumstances of this case support the trial judge's findings

of fact and conclusions of law the project did not have a significant negative

impact. We discern no reversible error. To the extent we have not addressed an

argument on appeal, it is because it lacks sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Although on appeal the board seizes on the trial court's finding that the building was similar in size to a single-family residence, it is clear the court was referring to the similarity in height and setbacks. We part ways with the board's suggestion the court misunderstood the facts and equated the square footage and number of rooms of the proposed facility with a single-family residence. A-0929-23 17