Opinion
DOCKET NO. A-2920-13T4
07-24-2015
ROBERT SHINN, ROXANE SHINN, BERT MCKAY, ERIC O'DELL, MEGAN ZEIGLER, JEFF KIMLER, FRED ROBINSON and WINSOR YAMAMOTO, Plaintiffs-Appellants, v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF CHERRY HILL and BUCKINGHAM PARTNERS, LLC, Defendants-Respondents.
Lynda Yamamoto argued the cause for appellants. Allen S. Zeller argued the cause for respondent Zoning Board of Adjustment for the Township of Cherry Hill (Zeller & Wieliczko, LLP, attorneys; Cosmas P. Diamantis, on the brief). Kevin D. Sheehan argued the cause for respondent Buckingham Partners, LLC (Parker McCay, attorneys; Stacy L. Moore, Jr., of counsel; Mr. Sheehan, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Hayden. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0768-13. Lynda Yamamoto argued the cause for appellants. Allen S. Zeller argued the cause for respondent Zoning Board of Adjustment for the Township of Cherry Hill (Zeller & Wieliczko, LLP, attorneys; Cosmas P. Diamantis, on the brief). Kevin D. Sheehan argued the cause for respondent Buckingham Partners, LLC (Parker McCay, attorneys; Stacy L. Moore, Jr., of counsel; Mr. Sheehan, on the brief). PER CURIAM
Pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, a zoning board of adjustment may "grant a variance . . . to permit . . . a use . . . in a district restricted against such use . . . or . . . a height of a principal structure which exceeds by [ten] feet or [ten percent] the maximum height permitted in the district." N.J.S.A. 40:55D-70(d)(1) and (6). A variance may be granted "[i]n particular cases for special reasons," the so-called "positive criteria," but only if the applicant can also demonstrate "that such 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," the so-called "negative criteria." Ibid.; see also Price v. Himeji, LLC, 214 N.J. 263, 285-86 (2013) (explaining the positive and negative criteria).
In this case, by a six-to-one vote, defendant, the Zoning Board of Adjustment of the Township of Cherry Hill (the Board), approved the bifurcated development application of defendant, Buckingham Partners, LLC (Buckingham), that sought a use and height variance. Plaintiffs filed a complaint in lieu of prerogative writs challenging the Board's decision. The Law Division judge concluded that the Board's actions were not arbitrary, capricious or unreasonable and entered an order dismissing plaintiffs' complaint. This appeal followed.
Bifurcated applications before the zoning board of adjustment are permitted whenever subsection (d) variances are implicated. See N.J.S.A. 40:55D-76(b); Puleio v. N. Brunswick Twp. Bd. of Adjustment, 375 N.J. Super. 613, 622-23 (App. Div.), certif. denied, 184 N.J. 212 (2005).
Plaintiffs contend that the Board usurped the power to zone reserved solely to the municipality and the Board's decision was not based upon sufficient, credible evidence establishing "special reasons" for the grant of the variances or that the variances could be granted without substantial detriment to the public good and without substantially impairing the zoning plan. N.J.S.A. 40:55D-70(d). We have considered these arguments in light of the record and applicable legal standards. We affirm.
I.
When originally filed, Buckingham's development application sought approval to construct twelve buildings containing 171 apartments on a 9.1 acre parcel comprised of two adjacent lots (the Property). The Property contained a former lumber retail store and associated buildings that had been unoccupied for approximately one year. The Property was located in the "B-2," or "Highway Business" zone, which did not permit residential uses and imposed a maximum building height of thirty-five feet. According to Cherry Hill's zoning regulations, the B-2 zone was "intended to provide for the development of commercial activities that are oriented for automotive use and traffic, which constitute the main shopping and service areas within the municipality."
The Property fronted two roads at a major intersection. It was surrounded by other businesses and an historic farmstead. Directly across one of the streets was a residential zone with appropriate housing uses. The Property was surrounded on two sides by a county park, with another park across the street.
The proposed apartment complex would consist of eight "townhouse style buildings" and four "garden apartment style buildings." Four of the proposed buildings were forty-three feet high. Buckingham amended its application, scaling back the number of units to 152, 23 of which would be affordable housing units, and the height variance to forty feet. The complex would also contain a clubhouse and recreational facility.
Before the Board, Buckingham's principal, Bob Dale, testified that the project was designed to meet the demand for "multifamily housing in the market in Cherry Hill . . . largely driven by the bursting [of] the housing bubble." Acknowledging the increase in traffic occasioned by the development, Dale testified that any increased traffic "density" would be less than that occasioned by permitted uses of the Property. Buckingham's landscape architect testified that the proposed development would contain about 3.2 acres of "usable open space," and its architect testified that, if the development were to receive a height variance, the "residential feeling" would be enhanced.
David Shropshire, Buckingham's expert engineer and planner, described the results of a traffic study he prepared and acknowledged that there were traffic delays and congestion on the access roads to the Property. But Shropshire estimated any increase from the project would be less than two percent. Shropshire concluded that "significantly higher traffic would be generated by" development of permitted uses in the zone, such as medical offices, convenience stores and gas stations. Shropshire opined, "there w[ould] not be a substantial detriment to the public good . . . from a traffic perspective" and no impairment to Cherry Hill's zoning ordinance or Master Plan as a result of the project.
Lastly, Mark Shaurds, a licensed engineer, testified that the project met the positive and negative criteria of N.J.S.A. 40:55D-70. Citing provisions of N.J.S.A. 40:55D-2, Shaurds opined that the project "form[ed] a transitional use between the heavy and intense uses [nearby]." Additionally, fifteen percent of the residences would be affordable housing units, and more than three acres of green space would be created. Because traffic would not be substantially increased, there would be no "substantial detriment to the public good," the Master Plan or the zoning ordinance. Shaurds also cited provisions of Cherry Hill's 2007 master plan reexamination report that supported the development of infill and affordable housing.
In its memorializing resolution, the Board stated its findings as to the positive criteria supporting a use variance:
[Buckingham] has . . . sustain[ed] its burden requiring the special reasons to grant the requested use variance, to wit the site promotes the general welfare in that:As to the negative criteria, the Board concluded:
1. this use will constitute an appropriate re-use of an existing abandoned commercial site;
2. it will add significant open space to the property;
3. it will provide affordable housing throughout the development;
4. it will redevelop a greyfields site with new, modern housing and significant landscaping;
5. it will improve the ingress and egress to the site as existing and it will not create any substantial impairment or negative impact to the site.
In addition, the site is particularly suitable for a residential use inasmuch as:
6. it promotes several specific purposes of zoning set forth in the [MLUL]
. . . .
7. it provides for a transition from more intense commercial uses south of the site to the park north of the site;
8. it is consistent with the neighborhood commercial type uses . . . and will likely provide customers to support those uses;
9. it will provide a residential use adjacent to the Croft Farm Park;
10. there are several other apartment developments in the area.
[Buckingham] has sustained . . . its burden . . . to wit:Regarding the (d)(6) height variance, the Board's resolution stated:
1. there are other residential areas in the vicinity, including other apartments and single family residences;
2. that this site is consistent with the Cherry Hill Housing Plan adopted in 2011 in which the use of greyfields for affordable housing is encouraged;
3. that the application promotes the Master Plan purposes of promoting desirable, attractive neighborhoods with a variety of housing types and densities;
4. this 9.1 acre site is a very small portion of the land in the Township as a whole and the B-2 zone in particular. The total land area amounts to 13,047 acres and this site represents only 0.1% of the total land area. The total B-2 Zone amounts to
595 acres and this site represents only 1.5% of the B-2 Zone and 0.6% of all the land in all B Zones in the Township, thus, the proposed use will not have a negative impact on the balance of land uses within the Township;
5. the traffic impact from the proposed development will not be significant in that the traffic projected from the proposed use is less than reoccupation of the existing use at the site, and less than other uses permitted in the B-2 zone; and
6. the school children projected from the proposed use, using data suggested by the Department of Community Development, will not be significant and the cost of the anticipated school children should be covered by the taxes generated by the proposed use.
a. [Buckingham] has sustained its burden [relating to the positive criteria] . . . to wit: The Applicant is seeking an increase in height of only 5 feet on a portion of the site and only with regard to four (4) buildings. These buildings are located in the interior of the site. They will allow the Applicant to provide a mix of building and apartment styles within the development, will allow the use of elevators, and will allow the Applicant to maximize the number of affordable housing units in the project. All of the other buildings will conform and the requested height and building design is in keeping with the area.
b. [Buckingham] has sustained its burden to affirmatively prove, produce and introduce testimony and evidence sufficient to sustain its burden regarding the negative
criteria . . . . The requested height variance is minor in scope from the zoning requirements and other buildings in the area, it will be located within the interior of the project, it is limited to 4 of the 12 proposed buildings, and it does not adversely impact the surrounding area.
Plaintiffs ultimately filed their complaint in the Law Division raising the same arguments they now raise on appeal. As noted, the Law Division judge dismissed the complaint, and this appeal followed.
We do not set forth the complicated procedural history that preceded the action in the Law Division because it is irrelevant to the issues raised on appeal. --------
II.
We set forth some well-known principles. "Our standard of review for the grant or denial of a variance is the same as that applied by the Law Division." Advance at Branchburg II, LLC v. Twp. of Branchburg Bd. of Adjustment, 433 N.J. Super. 247, 252 (App. Div. 2013). "[Z]oning boards, 'because of their peculiar knowledge of local conditions[,] must be allowed wide latitude in the exercise of delegated discretion.'" Price, supra, 214 N.J. at 284 (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)). A zoning board's decision "enjoy[s] a presumption of validity, and a court may not substitute its judgment for that of the board unless there has been a clear abuse of discretion." Ibid. (citing Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002)).
While we accord substantial deference to the factual findings of the Board, its conclusions of law are subject to de novo review. See Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). "In evaluating a challenge to the grant or denial of a variance, the burden is on the challenging party to show that the zoning board's decision was 'arbitrary, capricious, or unreasonable.'" Price, supra, 214 N.J. at 284 (quoting Kramer, supra, 45 N.J. at 296).
A.
To properly consider plaintiffs' contention that by granting the variances the Board usurped the legislative power granted solely to the municipality by the MLUL, we set forth some of the zoning history of the Property. As a result of its 2004 master plan, Cherry Hill modified its zoning map. Specifically, noting that a portion of the Property was zoned for office use, the revision recommended all of the Property be "rezoned Highway Business B-2 consistent with the existing land use and the surrounding lots."
In 2011, Cherry Hill amended the housing element of its master plan to meet its affordable housing obligations as then set by the Council on Affordable Housing. Essentially, the township identified four partially occupied shopping centers upon which it intended to incorporate overlay zoning to encourage "mixed use inclusionary development with half the site being utilized for housing." The Property at issue in this case was not identified as one of the four sites for overlay inclusionary zoning, although a site nearby, known as the Kimco site, was so identified. From this history, plaintiffs argue that the Board lacked "jurisdiction" to grant the variances because the township recently exercised its legislative power to adopt zoning regulations governing the Property, and the Board's grant of the variances violated the MLUL's exclusive grant of zoning power to the municipality. We disagree.
As the Court has made clear, a zoning board "may not, in the guise of a variance proceeding, usurp the legislative power reserved to the governing body of the municipality to amend or revise the [zoning] plan." Price, supra, 214 N.J. at 285 (alteration in original) (quoting Feiler v. Fort Lee Bd. of Adjustment, 240 N.J. Super. 250, 255 (App. Div. 1990)) (internal quotation marks omitted), certif. denied, 127 N.J. 325 (1991). The "criteria for determining when a variance grant constitutes an impermissible exercise of the zoning power . . . [is] 'whether the impact of the requested variance will be to substantially alter the character of the district as that character has been prescribed by the zoning ordinances.'" Feiler, supra, 240 N.J. Super. at 255 (quoting Twp. of Dover v. Bd. of Adjustment, 158 N.J. Super. 401, 412-13 (App. Div. 1978)).
The facts in Feiler provide a good example of a variance that substantially altered a zoning scheme. There, the developer sought use and bulk variances to construct a mixed commercial-residential development that straddled two zoning districts. Id. at 251-53. The residential portion of the development occupied an entire zoning district, which permitted only one- and two-family residences with a maximum building height of thirty-five feet. Id. at 252. The developer proposed two apartment towers, 316.8 and 221.8 feet high. Id. at 253. The board granted the variances, specifically finding "[t]he inappropriateness of the subject premises for its zoned use." Id. at 254. We reversed, stating the board's approval "was dependent on a finding that the tract was inappropriately zoned. Thus, the board of adjustment blatantly arrogated to itself the power to reject existing zoning and to substitute its idea of an appropriate zone plan. No board of adjustment has that power." Id. at 256.
Our decision in Township of North Brunswick v. Zoning Board of Adjustment, 378 N.J. Super. 485 (App. Div.), certif. denied, 185 N.J. 266 (2005), provides another example. There, the board granted a variance permitting the construction of a four-story luxury apartment building more than fifty feet high in a zone that permitted single-family detached homes with a maximum height of thirty feet. Id. at 488-89. The Property had been rezoned only a year before to accomplish "density reduction" and prevent "the potential construction of numerous small apartment buildings on narrow deep lots." Id. at 489. The municipality itself brought suit, and we upheld the trial court's reversal of the board's decision, reasoning, "the [b]oard ignored the fact that the Property had relatively recently been rezoned to preclude [the proposed] usage. The [b]oard's action thus blatantly rejected the [t]ownship's zoning plan and improperly arrogated to itself the power to substitute its idea of an appropriate zone plan." Id. at 494.
In this case, the Board's decision to grant a use and height variance did not "shatter[]" or "wholly nullify" Cherry Hill's zoning scheme. Leimann v. Bd. of Adjustment, 9 N.J. 336, 342 (1952). The Property in this case is surrounded by a variety of uses, including residential properties immediately adjacent to its south, other adjacent retail uses and public parks that surround the site on two sides and across the other thoroughfare. While the most recent zoning map left unchanged the Property's zone designation, more recent amendments to the municipality's housing plan recommended zoning overlays for nearby, underutilized commercial properties in order to address affordable housing obligations. Moreover, the variances granted here did not substantially affect the overall nature and size of the B-2 zoning district. North Brunswick, supra, 378 N.J. Super. at 491. As a result, we reject plaintiffs' argument on this score.
B.
Plaintiffs' remaining contentions are essentially that there was a lack of substantial, credible evidence before the Board supporting the conclusion that Buckingham's application satisfied the positive and negative criteria for the variances. We again must disagree.
The MLUL requires that an applicant seeking a section (d) variance prove both the positive and negative criteria contained in the statute. Price, supra, 214 N.J. at 285. The positive criteria requires proof of "special reasons" for the grant of a variance, a term undefined by the MLUL, but interpreted as "tak[ing] its definition and meaning from the general purposes of the zoning laws." Ibid. (quoting Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 386 (1990)) (internal quotation marks omitted). "Special reasons" may exist "where the use would serve the general welfare because the proposed site is particularly suitable for the proposed use." Nuckel v. Borough of Little Ferry Planning Bd., 208 N.J. 95, 102 (2011) (quoting Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 76 (App. Div. 2006)) (internal quotation marks omitted). "[T]he particularly suitable standard has always called for an analysis that is inherently site-specific." Price, supra, 214 N.J. at 288.
In this case, the Board conducted a "site-specific" evaluation of the evidence regarding the positive criteria and made multiple findings. Some of plaintiffs' specific challenges have merit. For example, "[t]estimony . . . that there will be a tax advantage to the municipality if the variance is granted, [or] testimony that the proposed use is more profitable than using the property for permitted uses . . . will not, per se, support the grant of a use variance." Cox & Koenig, N.J. Zoning & Land Use Administration 684 (2015). We question, therefore, whether the Board's finding that other businesses in the immediate area will profit from additional residential development can be used as proof of the positive criteria.
On balance, however, the overall determination made by the Board deserves our deference. The Board found that the development "re-use[d] . . . an existing abandoned commercial site" and added open space. Plaintiffs argue that the "inclusion of open space in the proposed development is a mandatory regulation . . . and cannot, therefore, be relied upon as a promotion of the general welfare." However, although the development did not provide the fifty percent of open space required in residential zones, it provided approximately thirty-eight percent open space, far more than required of a development in the B-2 zone. The Board also cited the contribution that the project would make to the township's affordable housing obligations. Here, too, plaintiffs contend such a finding is illusory, because all residential housing in the township must include affordable units. However, if the Property was developed as a permitted use in the B-2 zone, no affordable housing units would result. See Homes of Hope, Inc. v. Eastampton Twp. Land Use Planning Bd., 409 N.J. Super. 330, 339 (App. Div. 2009) ("[L]ow and moderate income affordable housing promotes the general welfare and constitutes a special reason to support a "d" variance.").
As to the negative criteria, the applicant must
demonstrate, in accordance with the enhanced quality of proof, both that the variance "can be granted without substantial detriment to the public good" and that it "will not substantially impair the intent and the purpose of the zone plan and zoning ordinance[.]" The showing required to satisfy the first of the negative criteriaThe Board concluded that the development would not have a negative effect on the surrounding properties, reasoning "there are other residential areas in the vicinity, including other apartments and single family residences." Additionally, the Board pointed out that the Site represented only 1.5% of all property in the B-2 Zone, and thus would "not have a negative impact on the balance of land uses within the Township." The Board also found that the development was "consistent with the Cherry Hill Housing Plan adopted in 2011 in which the use of greyfields for affordable housing is encouraged."
focuses on the effect that granting the variance would have on the surrounding properties. 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.
[Price, supra, 214 N.J. at 286 (quoting N.J.S.A. 40:55D-70) (citations omitted).]
Plaintiffs accurately assert that Cherry Hill did not include the Property in its inclusionary overlay zoning plan to address its affordable housing obligations. Nonetheless, one of the designated sites, the Kimco site, was near the Property. Plaintiffs go to some length distinguishing the Kimco site from the Property, and we accept arguendo there are distinctions. However, we find this was powerful evidence regarding the negative criteria, because it established that residential affordable housing in a business zone was not totally inconsistent with the overall zoning scheme adopted by Cherry Hill.
Plaintiffs do not present any specific arguments as to why the reasons expressed by the Board in its grant of the height variances here were improper. "An issue that is not briefed is deemed waived upon appeal." N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div. 2015). In any event, the proofs adduced before the Board and the Board's findings and conclusions as stated in its resolution demonstrate a proper application of the standards we enunciated in Grasso v. Borough of Spring Lake Heights, 375 N.J. Super. 41, 53-55 (App. Div. 2004).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION