AVALONBAY COMMUNITIES, INC. VS. TOWNSHIP OF SOUTH BRUNSWICK ZONING BOARD OF ADJUSTMENT (L-6662-15, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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

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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.

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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.

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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.

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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-

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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.

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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;]

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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. . . .

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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).

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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

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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

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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.

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[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

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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

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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.

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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

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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.").

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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.

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