Opinion
DOCKET NO. A-6250-12T3
07-24-2014
JO ANNE KROUSOS and STEFANOS DOULOS, Plaintiffs-Appellants, v. ZONING BOARD OF ADJUSTMENT OF BOROUGH OF PARAMUS and 175 PARAMUS ROAD REAL ESTATE, Defendants-Respondents.
Sheri K. Siegelbaum argued the cause for appellants (Scarinci Hollenbeck, attorneys; Robert Montecallo, on the brief). Eric J. Riso argued the cause for respondent Zoning Board of Adjustment of the Borough of Paramus (Platt & Riso, P.C., attorneys; Mr. Riso, on the brief). Gage Andretta argued the cause for respondent 175 Paramus Road Real Estate, L.L.C. (Wolff & Samson, P.C., attorneys; Mr. Andretta and Donna Erem, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Haas.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0437-13.
Sheri K. Siegelbaum argued the cause for appellants (Scarinci Hollenbeck, attorneys; Robert Montecallo, on the brief).
Eric J. Riso argued the cause for respondent Zoning Board of Adjustment of the Borough of Paramus (Platt & Riso, P.C., attorneys; Mr. Riso, on the brief).
Gage Andretta argued the cause for respondent 175 Paramus Road Real Estate, L.L.C. (Wolff & Samson, P.C., attorneys; Mr. Andretta and Donna Erem, on the brief). PER CURIAM
Plaintiffs Jo Anne Krousos and Stefanos Doulos appeal from dismissal of their complaint in lieu of prerogative writs objecting to variances and site plan approval granted for the building of an Alzheimer's assisted living facility adjacent to their home in Paramus. We affirm.
The assisted living facility is proposed by 175 Paramus Road Real Estate, L.L.C., an affiliate of CareOne, a for-profit entity that owns and operates eight other Alzheimer's patient facilities serving Bergen County. The subject property is almost seven-and-a-half acres in size and is located in an R-100 residential zoning district of the borough. In addition to single-family homes on minimum lot sizes of 12,500 square feet, the R-100 zoning district permits residential facilities for dementia patients but on the condition that they be limited to fifteen patient beds. The proposed facility in this case is much larger, planned for 126 patient beds to be constructed in two phases.
The property is located largely in a floodplain, and previously contained a swim club. Since 1999, the swim club has been closed, and the vacant buildings on the property have become dilapidated and in need of repair. Development of the property with single-family homes, or for other proposed uses, has proven difficult because of the flooding and drainage problems that exist on the land situated next to the Saddle River.
In February 2012, defendant 175 Paramus Road Real Estate, L.L.C., filed an application for variances and site plan approval with defendant Board of Adjustment of Paramus. The application was for a three-story Alzheimer's facility for a maximum of 126 residents. The application stated that the building site near the frontage of the property on Paramus Road would be graded and raised above the 100-year floodplain. Ten-foot retaining walls would be built to maintain the elevated building site, and the pond on the property would be refurbished and used as a fenced stormwater detention basin. An interior courtyard and exterior walking paths would also be constructed on the grounds, with appropriate post lighting and an extensive landscaping plan to buffer the site visually from neighboring properties.
Because the proposed facility would contain more than fifteen beds, the applicant requested a (d)(3) variance, N.J.S.A. 40:55D-70(d)(3), for deviation from the conditions applicable to a permitted conditional use. In addition, the applicant sought (d)(6) height variances, N.J.S.A. 40:55D-70(d)(6), because the proposed building would be three stories high, where the zoning ordinance permits two-and-a-half stories, and because the height of the sloped roof would be 42.7 feet and of a decorative clock tower 51.2 feet, where the borough zoning ordinance permits a maximum height of 32 feet. Bulk and dimensional, or (c), variances, N.J.S.A. 40:55D-70(c), were also requested for a retaining wall of 10 feet in height where the ordinance permits 6.5 feet, for two entrance signs where the ordinance permits only one, and for monument signs, which is not permitted by the zoning ordinance. The application also sought certain lighting design waivers in the driveway for safety reasons.
Plaintiffs have never objected to the lighting design waivers or to the sign variances. We will not refer to those aspects of the application further.
The board held public hearings on three dates from June through September 2012. The applicant presented the testimony of five witnesses, four of them accepted by the board as expert professionals in their fields. No witnesses were presented by any objector or member of the public, but the board also considered the statements and comments of its own professionals.
Timothy Hodges, Chief Strategy Officer for CareOne, testified about the region's need for assisted living facilities for elderly people suffering from Alzheimer's disease, and about the activities of CareOne in building and operating such facilities. He testified that such an assisted living facility is not economically feasible unless a minimum of 120 beds can be provided. The proposed assisted living facility would employ approximately forty-five persons on three shifts. The Alzheimer's residents would be ambulatory but not capable of driving. Hodges also testified that at least ten percent of the housing, that is, thirteen beds, would be funded by Medicaid and thus would be designated to comply with the borough's affordable housing obligation.
Michael Fowler, a professional engineer, testified for the applicant that other nearby uses included a restaurant and another three-story assisted living facility of about the same size located across Paramus Road. Much of Fowler's testimony pertained to the location of the proposed building on the subject property and the plan for addressing the floodplain constraints. He testified that the combined area of the three lots that comprise the subject property is 7.38 acres, and two of the lots contain a large basin that was formerly used as a swimming pond. Because of the flooding and wetlands on the site, the proposed building could not be spread out more over the property without prohibitive filling and grading of the land. The applicant has stream encroachment approval from the New Jersey Department of Environment Protection to grade the proposed building site to raise it above the floodplain. The economic and topographic limitations require that the design of the structure be elevated to three stories to contain the requisite number of beds.
Fowler described the plans for use of ten-foot retaining walls to maintain the grading elevation and the detention basin. He also testified that a fence would be built on top of the retaining wall for safety of the residents and others, and that landscaping would visually buffer the detention basin and the retaining wall from neighboring properties. He explained why the building could not be located farther away from Paramus Road, adding that as currently planned, its front yard setback of 84.5 feet substantially exceeds the required 35 feet of the zoning ordinance, thus mitigating the visual effect of the larger structure from a street view.
Fowler also described in detail the lighting plan and the entire landscaping plan for the site. The applicant proposed to surround the site with plantings, including many evergreen trees that would block the view from plaintiffs' house to the proposed building, the retaining walls, the detention basin, and the parking areas of the facility. The applicant presented pictorial renderings of what the view would be from plaintiffs' back yard deck to the facility.
Allan Kopelson, the architect, also testified about the need for a three-story structure. Focusing on the height and roof design of the structure, he testified that all mechanical equipment on the roof will be screened by the sloping roof, and that the decorative clock tower rising to the maximum height of 51.2 feet was included in his design to soften and enhance the visual esthetics of the building.
Karl Pehnke, a traffic engineer, testified about the anticipated motor vehicle trips that would be generated at the facility, with access to Paramus Road from two driveways. Because of the inability of the residents to drive, traffic would be limited to employees, deliveries, and an estimated twelve to fifteen visitors per day after the completion of phase one of the project. Traffic on the county road would not be increased significantly.
The applicant's professional planner, Paul Phillips, testified regarding the legal standards that apply to the variances sought. He explained his opinion that the application satisfies the balancing test of Coventry Square, Inc. v. Westwood Zoning Board of Adjustment, 138 N.J. 285, 298-99 (1994), for a (d)(3) variance. In addition, he forthrightly suggested that the analysis for a (d)(1) use variance, N.J.S.A. 40:55D-70(d)(1), might apply in the circumstances of this project because the size of the facility and the intensity of its use significantly exceed the fifteen-bed limitation of the permitted use. Nevertheless, he testified that the application meets the requirements for a (d)(1) use variance, especially because an Alzheimer's residential facility is an inherently beneficial use, thus invoking the less stringent test for a use variance established in Sica v. Board of Adjustment of Wall Township, 127 N.J. 152, 165-66 (1992), rather than the "enhanced quality of proof" as set forth in Medici v. BPR Co., 107 N.J. 1, 21-24 (1987).
In addition, the vast size of the property compared to the zoning requirements, and the impracticality of using the property for single-family dwellings, favored the proposed development. Phillips noted that the borough master plan recommended the identification of opportunities to house the borough's increasing elderly population. His testimony also addressed the other variances sought and explained the reasons for them and the applicant's plans for minimizing any potential negative effect of the development on the neighboring properties and on the zoning plan and regulations of the municipality.
Plaintiff Jo Anne Krousos attended the first two hearing dates and raised issues about the sight lines between the proposed facility and her property, the safety of the detention basin, and the esthetic desirability of a split rail fence proposed for the property. She did not present any evidence to challenge the testimony of the applicant's witnesses, and she did not attend the final hearing on September 20, 2012, and object to the application at the time the board was about to make its decision.
At the conclusion of the hearing, no member of the public objected to the application or made any statement during the public comment portion of the hearing. The board requested that the applicant provide specific grading plans for review and approval by the borough engineer to confirm the height projections of the structure, and it then voted unanimously to approve the application.
On November 29, 2012, the board adopted a twenty-one page resolution implementing and explaining its decision. The resolution reviewed in detail the testimony and evidence presented at the hearing, and it acknowledged the questions and concerns raised by plaintiff Krousos and one other person. The board concluded that the application met the requirements for use, deviation, and height variances under N.J.S.A. 40:55D-70(d)(1), (3), and (6), and for bulk and dimensional variances under N.J.S.A. 40:55D-70(c)(1) and (2). The board approved the variances, design waivers, and site plan, setting forth specific conditions of the approval.
Plaintiffs filed an action in lieu of prerogative writs in the Law Division pursuant to Rule 4:69 to set aside the board's decision. Their complaint alleged that the proofs were insufficient for the granting of the variances and that the board had exceeded its statutory authority by, in effect, rezoning the property to permit the development of a prohibited use. The Law Division considered the record established before the board and the briefs of the parties, heard oral argument, and then affirmed the board's decision. It entered an order on July 12, 2013, dismissing plaintiffs' complaint with prejudice.
On appeal before us, plaintiffs argue that the resolution of approval adopted by the board is insufficient and cannot sustain the variances that were granted, and that the applicant failed to comply with N.J.S.A. 40:55D-10(b) in that all maps and documents in support of the application were not on file with the board and available for examination by the public at least ten days before the board's vote of approval on September 20, 2012.
Our standard of review is the same as that of the Law Division; we grant substantial deference to the municipal zoning board's decision to grant or deny variances and related land use applications. Bressman v. Gash, 131 N.J. 517, 529 (1993); D. Lobi Enters., Inc. v. Plan./Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009). Decisions of zoning boards to grant or deny applications are presumed to be valid. Cell South of N.J. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002). "A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable." Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965).
The burden is on the challenging party to overcome this highly deferential standard of review. See Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998); Kramer, supra, 45 N.J. at 296. A court must not substitute its own judgment for that of the local board unless there is a clear abuse of discretion. See Cell South, supra, 172 N.J. at 82. As we stated in CBS Outdoor, Inc. v. Borough of Lebanon Planning Board, 414 N.J. Super. 563, 577 (App. Div. 2010), "[e]ven were we to harbor reservations as to the good judgment of a local land use agency's decision, 'there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.'" (quoting Kramer, supra, 45 N.J. at 296-97).
The Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163, authorizes a municipal board of adjustment to grant variances from local zoning regulations in accordance with the provisions of N.J.S.A. 40:55D-70. In relevant part, the statute provides that bulk or dimensional variances, also known as (c) variances, may be granted:
(1) Where: . . . (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property . . . the strict application of any regulation . . . would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property . . . ; (2) where in an application or appeal relating to a specific piece of property the purposes of this act . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment . . . .
[N.J.S.A. 40:55D-70(c).]
In parts relevant to this case, the statute provides that a so-called (d) variance may be granted:
In particular cases for special reasons . . . to allow departure from regulations . . . to permit: (1) a use or principal structure in a district restricted against such use or principal structure . . . (3) deviation from a specification or standard . . . pertaining solely to a conditional use . . . or (6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure.The reference to "special reasons" is known as the positive criteria that the applicant must satisfy for approval of a (d) variance.
[N.J.S.A. 40:55D-70(d).]
Both subsections (c) and (d) also require proof of the so-called negative criteria, which in relevant part are set forth in the statute as follows:
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief 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.
[N.J.S.A. 40:55D-70.]
In this case, a residence for dementia patients is a conditionally permitted use. An applicant for a (d)(3) variance must prove special reasons for deviation from the maximum fifteen-bed condition applicable to that permitted use.
In Coventry Square, supra, 138 N.J. at 298-99, our Supreme Court established the standards applicable to a (d)(3) variance for such a deviation. The Court held that "the proof of special reasons" for the deviation must demonstrate that the property "continues to be an appropriate site for the conditional use notwithstanding the deviations." Id. at 298. As the Court explained, the "applicant must show that the site will accommodate the problems associated with the use even though the proposal does not comply with the conditions the ordinance established to address those problems." Id. at 299.
Here, the ordinance established a fifteen-bed limit in a zoning district that permits development on lots as small as 12,500 square feet in area. The subject property is twenty-five times that size. In addition, the development proposal far exceeds virtually all of the dimensional requirements for improvements within the zoning district. In addition to the front yard setback of 84.5 feet where 35 feet is required, the proposal in this case includes side yard setbacks of 131.5 feet where 12 feet is required, a rear yard setback of 256 feet where 30 feet is required, 10% lot coverage where 25% is permitted, and 532 feet lot width where 100 feet is the minimum required. Furthermore, the impervious coverage of the improvements would be 24% of the parcel where 50% is permitted, the floor area ratio of the structure is 24% where 35% is permitted, and the landscaping would encompass 53% of the parcel where the zoning regulation requires only 30%. Thus, with the exception of the height of the building exceeding the permitted maximum and the retaining wall exceeding the 6.5 feet maximum, the property is so spacious compared to the required zoning regulations that it far exceeds the dimensional minimums of the zoning regulations.
The board, therefore, acted within its discretionary authority in concluding that the applicant's property can accommodate a large assisted living home for persons afflicted with Alzheimer's disease and the employees and guests who will attend to their needs at the facility.
As an alternative ground for approval of the application, the board also considered the four-part test in accordance with Sica, supra, 127 N.J. at 165-66, where a (d)(1) use variance is sought for an inherently beneficial use of the property. No one disputed that the community is in dire need of assisted living facilities for Alzheimer's patients and that the proposed use is inherently beneficial for the community. "If a proposed use qualifies as an 'inherently beneficial' use, the burden of proof of an applicant for a use variance is 'significantly lessened' with respect to both the positive and negative criteria." Salt & Light Co., Inc. v. Willingboro Twp. Zoning Bd. of Adj., 423 N.J. Super. 282, 287 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012). An inherently beneficial use is presumed to satisfy the positive criteria, and it does not have to satisfy an "enhanced quality of proof" for the negative criteria, as set forth in Medici, supra, 107 N.J. at 21-24. Salt & Light Co., supra, 423 N.J. Super. at 287.
Under Sica, the board must balance the benefits and burdens of the requested variance using the following steps as a guide: (1) "identify the public interest at stake"; (2) "identify the detrimental effect that will ensue from the grant of the variance"; (3) "reduce the detrimental effect by imposing reasonable conditions on the use"; and (4) "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." Sica, supra, 127 N.J. at 165-66.
Here, the public benefit is the much-needed assisted living facility. Regarding the detrimental effect of the application, only plaintiff Krousos and one other member of the public raised concerns. Krousos's main concern was the view from her house and back yard deck. More specifically, she objected that residents of the facility would be able to look from a higher elevation directly toward her home and her deck. To answer this concern, the applicant proposed extensive new landscaping to block the view, and presented evidence that within a few years of plant and tree growth, the sight lines from plaintiffs' property to the improvements on the applicant's land would be virtually blocked by attractive trees and shrubbery. Furthermore, the residential structure would be located at least 300 feet from plaintiffs' deck and house, thus making it unlikely that the Alzheimer's residents would interfere with plaintiffs' privacy.
Krousos presented no evidence of a diminution in property values because of the proposed use or of safety concerns because of the detention basin. As the applicant points out, the current state of plaintiffs' property is that it is located adjacent to a defunct swim club with an existing pond, buildings in disrepair, and neglected vegetation. There is no evidence that the proposed development plan will detract from plaintiffs' neighborhood or property value.
We defer to the decisions of municipal zoning officials "because of their peculiar knowledge of local conditions." Jock v. Zoning Bd. of Adj. of Wall Twp., 184 N.J. 562, 597 (2005). Here, the local board was fully familiar with the site, its constraints and development limits, and an appropriate use of the property. The applicant made a thorough presentation of evidence that supported the board's granting of the requested variances and site plan approval. The board reviewed that evidence in its resolution and made appropriate findings. We find no merit in plaintiffs' argument that the board's resolution was inadequate to support its decision.
Plaintiffs also make a second, technical argument challenging the validity of the board action. They contend that the engineering plans that the board requested for review by the board's professional engineer were not available for public inspection at least ten days before the hearing, as required by N.J.S.A. 40:55D-10(b). Plaintiffs never raised such an objection at the time of the board hearing. Nor did plaintiff Krousos suggest during her participation in the first two hearing dates that she was interested in reviewing the engineering plans for the grading of the property.
The applicant had filed maps, pictorial renderings, and documents to show the elevation of the proposed building. Furthermore, its documented plans and the testimony of its professionals provided ample information about the grading plan and the proposed height of the structure. The board requested the engineering plans so that its own engineer could ensure the accuracy of the height projections, and it conditioned its approval of the application on those projections. There was no violation of N.J.S.A. 40:55D-10(b) or abuse of discretion by the board in proceeding to a vote before the plans had been confirmed by its engineer.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION