TWIN OAKS REALTY DEVELOPMENT, LLC v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF CRANFORD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2687-04T52687-04T5

TWIN OAKS REALTY

DEVELOPMENT, LLC,

Plaintiff-Appellant,

vs.

ZONING BOARD OF ADJUSTMENT

OF THE TOWNSHIP OF CRANFORD,

Defendant-Respondent.

__________________________________

 

Argued: January 17, 2006- Decided January 30, 2006

Before Judges Cuff, Lintner and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-606-03.

Joseph J. Triarsi argued the cause for appellant (Triarsi, Betancourt, Walsh & Wukovits, attorneys; Mr. Triarsi, of counsel; Richard D. Huxford, on the brief).

David Parker Weeks argued the cause for respondent (Ruprecht, Hart & Weeks, attorneys; Mr. Weeks, of counsel; Francis D. Engracia, on the brief).

PER CURIAM

In this appeal we review an order upholding the denial of multiple variances required to construct a thirty-six unit townhouse development in Cranford. Townhouses are a conditional use in the zone. We affirm.

Plaintiff Twin Oaks Realty Development, LLC (Twin Oaks) is the contract purchaser of fourteen assembled properties covering 133,866.38 square feet. On September 13, 2002, Twin Oaks submitted an application to the Zoning Board of Adjustment of the Township of Cranford (Board) for multiple variances to allow construction of a forty-unit townhouse development. Over the course of eleven months, the Board considered evidence in support of and in opposition to the application, and Twin Oaks amended the plan to reduce the number of units from forty to thirty-six. As a result, the final variances requested by Twin Oaks were the following: (1) a conditional use variance for townhouses in the R-5 zone based on the failure to meet the 5000 square foot per unit density requirement; (2) a variance for seven of the thirty-six units from the required distance to the adjoining zone where thirty-five feet is required and twenty feet is provided; (3) a variance from the permitted height where two and one-half stories and thirty feet is permitted and thirty-four feet eight inches and three stories is provided; (4) a variance to allow living space beyond the second floor; (5) a use variance for one of the thirty-six units in the ROI-2 zone.

As proposed, the townhouses are clustered four to six to a building. Each unit has an attached garage. A typical unit consists of a raised basement with an optional family room and patio, a first floor plan containing a living room, dining room, kitchen, bath and balcony, and a second floor plan consisting of two or three bedrooms and two baths. The architecture has elements of Victorian and colonial design consistent with the general scheme of the town.

From October 21, 2002, to August 11, 2003, evidence in support of and in opposition to the development was presented during eight meetings of the Board. The applicant submitted testimony from an architect, professional engineer, planner, traffic expert, and realtor. Representatives of the police and fire departments also testified. The public safety officials noted that amendments to the design and site location of the buildings resolved their concerns. Nevertheless, the police representative commented that the intersection at which this development would be located was awkward.

Density of the project was the primary concern for the Board and objectors. The realtor opined that this development did not exceed the density of two proximate senior citizen developments and another townhouse development in the town. He was unaware, however, that the comparables on which he relied were in different zones with different density requirements.

The planner opined that the density requirements for townhouses as a conditional use in the zone were archaic. He also testified that the proposed density allowed the development to be economically feasible, whereas compliance with the required density would not generate the desired return to the developer due to development costs.

The Cranford Environmental Commission opposed the application. It opined that the development would exacerbate the Township's flood control efforts, would increase the community's density, would increase traffic, and would increase the amount of impervious surface. It also reported that the residential tax ratables would not cover the costs of municipal services, community infrastructure, and schools required to support the project.

Several citizens testified at the hearings. Rita LaBrutto expressed concerns about the adequacy of the water supply to hydrants, the density of the development and the number of children who may reside in the units. Frank Krause also expressed concern about the density of the project, noting that the thirty-six requested units were 33% greater than allowed as a conditional use in the zone. Jeffrey Pistol reminded the Board that a recommendation for a proposed townhouse development in a redevelopment area of the Township included a maximum density of 5000 square feet. He suggested that the recommendation confirmed the continued viability and desirability of the density requirement in the R-5 zone.

In their discussion before the vote on August 11, 2003, Board members observed that they had few, if any, reservations about most of the relief requested by Twin Oaks, particularly the setback and height variances, but expressed considerable concern about the density of the development. Ultimately, the Board denied the requested variances by a 4-3 vote. In its resolution, the Board found that "[t]he density proposed is more than 33% greater than that allowed by the Land Development Ordinance," and "[t]he excessive density will result in more residents, more automobiles, more traffic and all that which goes along with density of residential units which substantially exceeds that allowed by the Land Development Ordinance." The Board then concluded that the applicant had not demonstrated special reasons for the use variance and had not demonstrated that the site was an appropriate site for the use as designed or that the relief could be granted without substantial detriment to the public good and the zoning plan. It stated:

The board is not satisfied that the applicant has demonstrated sufficient special reasons with respect to the property in the ROI-2 Zone. With respect to the property in the R-5 Zone, the Board is not satisfied that the applicant has demonstrated that the site would continue to be an appropriate site for the townhouse use notwithstanding the deviations from the conditions imposed by the ordinance. The Board is not satisfied that the applicant has demonstrated that the variances can be granted without substantial detriment to the public good and without impairing the intent and purposes of the Zone Plan and Zoning Ordinance.

Twin Oaks filed an action in lieu of prerogative writs in the Law Division. Following his review of the record, Judge Pisansky rendered a written opinion in which he affirmed the action by the Board. He noted that the most significant variance sought by Twin Oaks was the conditional use variance. He recognized that Board action on this variance is governed by Coventry Square, Inc. v. Westwood Zoning Board of Adjustment, 138 N.J. 285 (1994). Thus, the applicant was required to adduce proof of special reasons to depart from the conditions of the ordinance "sufficient to satisfy the board of adjustment that the site proposed for the conditional use, in the context of the applicant's proposed site plan, continues to be an appropriate site for the conditional use notwithstanding the deviations from one or more conditions imposed by the ordinance." Id. at 298-99. In addition, the applicant must adduce proof, and the Board must evaluate the proof, to address the negative criteria. Id. at 299. In its analysis, the Board must determine the effect of the deviation from the zoning plan on the surrounding properties and the zoning plan. Ibid.

He also found that Twin Oaks failed to establish special reasons for the conditional use variance, i.e the positive criteria. Judge Pisansky wrote:

Here, there was credible testimony from the objectors that constructing 36 townhouse units would make the site unsuitable for such development. They testified that the project is a more intense use than what now exists; the project will not provide adequate open space and on-street parking will be a problem in the development. This Court is satisfied that the Board engaged in the correct analysis in basing its special reasons determination on the magnitude of the deviation when it found that the Applicant had failed to establish the proofs necessary as to the positive criteria to support a density increase of the magnitude requested: 5000 square feet necessary per unit, 3,718 square provided, so that there would be 36 units instead of the 26 units permitted at 5000 square feet per unit.

Judge Pisansky also agreed that Twin Oaks failed to satisfy the negative criteria. He wrote:

It is clear that the Board's statement regarding the negative criteria followed the directions in Coventry Square to also focus the negative criteria analysis on the deviation. Thus, the Board determined that the variance could not be reconciled with the municipality's previous determination by its zoning ordinance that a 5000 square foot area for a townhouse should be imposed on all townhouse development. Coventry Square, supra, at 299. The Board properly focused its concern on the magnitude of the deviation as reflected by its belief that an "approximate 33% increase in the density is too extreme and would represent a

substantial detriment to the surrounding properties and to the intent and purpose of the Zone Plan and Zoning Ordinance." In short, the Board's finding that Twin Oaks failed to satisfy the negative criteria is reasonably supported by the record.

Judge Pisansky concluded his analysis by commenting that the Board's action was supported by "persuasive evidence in the record" and that there was no evidence that any member gave undue weight to the testimony of the objectors over the applicant's experts. By order dated January 3, 2005, the decision of the Board was affirmed.

We apply the same standard of review as the Law Division judge. New York SMSA v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). Thus, we give substantial deference to the findings of fact and may reverse discretionary rulings only if the municipal action was arbitrary, capricious or unreasonable. Booth v. Bd. of Adj. of Rockaway, 50 N.J. 302, 306 (1967); Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268, 296-97 (1965). Indeed the factual findings of a board of adjustment are presumed valid. Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81-82 (2002). The rationale for the arbitrary and capricious standard is that the local citizens who serve on the board are more familiar with local conditions than the court. Med. Ctr. of Princeton v. Princeton Twp. Zoning Bd. of Adj., 343 N.J. Super. 177, 198 (App. Div. 2001) (citing Ward v. Scott, 16 N.J. 16, 23 (1954)). Thus, greater deference is ordinarily given to a denial of a variance than to a grant. Id. at 199; Omnipoint Commc'n, Inc. v. Bd. of Adj. of Bedminster, 337 N.J. Super. 398, 416 (App. Div.), certif. denied, 169 N.J. 607 (2001). On the other hand, this court accords no deference to the trial court's interpretation of the law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Judge Pisansky's decision appropriately focused on the denial of the conditional use variance. Clearly, the applicant's desire for thirty-six units rather than the permitted twenty-six units in the zone was the focal point of the application. Thus, Judge Pisansky properly utilized Coventry Square to guide his review of the Board action.

We are satisfied that the facts as found by the Board on the positive and negative criteria are well-supported by substantial credible evidence in the record and that Judge Pisansky and the Board accurately identified and applied the governing law. We, therefore, affirm the January 3, 2005 order substantially for the reasons expressed by Judge Pisansky in his December 10, 2004 written opinion.

 
Affirmed.

(continued)

(continued)

10

A-2687-04T5

January 30, 2006