CALIBER BUILDERS, INC. v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF PARAMUS

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3357-04T2

CALIBER BUILDERS, INC.,

Plaintiff-Respondent/
Cross-Appellant,

v.

ZONING BOARD OF ADJUSTMENT OF
THE BOROUGH OF PARAMUS,

Defendant-Appellant/
Cross-Respondent.

________________________________________________________________

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February 21, 2006

Argued January 18, 2006 Decided

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court
of New Jersey, Law Division, Bergen
County, Docket No. L-10699-04.

John E. Ten Hoeve, Jr. argued the
cause for appellant/cross-respondent.

Stuart D. Liebman argued the cause
for respondent/cross-appellant (Wells,
Jaworski, Liebman & Paton, attorneys;
Mr. Liebman, Darrell M. Felsenstein,
and Linda M. Herlihy, on the brief).

PER CURIAM

Plaintiff, Caliber Builders, Inc., applied to the Borough of Paramus Zoning Board of Adjustment for a use variance,See footnote 1 N.J.S.A. 40:55D-70d, to construct in an R-100 residential district a Congregate Care Housing Project for independent and semi-independent senior citizens. The Board denied the variance, and Caliber appealed by filing an action in lieu of prerogative writs in Superior Court. After hearing argument, the court reversed the Board and granted the variance. The Board appeals from this judgment, and Caliber cross-appeals claiming the court erred in not finding that the Board's decision violated the Federal Fair Housing Amendments Act, 42 U.S.C.A. 3601 to 3631. We reverse the trial court and reinstate the Board's decision denying the variance. We affirm the trial court on the cross-appeal.
Caliber planned to build, along Paramus Road in close proximity to the Saddle River, a seventy-one-unit three-story congregate care apartment housing complex with underground and above ground parking spaces. The complex was to include community, social, and dining facilities, but not medical services. One meal per day would be provided along with some housekeeping services, with additional services offered, including transportation, recreation, personal care, and additional meals.
The property was formerly a swim club, which had been abandoned since 1999, and consists of approximately 7.2 acres categorized as environmentally critical in Paramus' 1974 Natural Resource Inventory. Approximately ninety-percent of the property is located in a flood plain area, with wetlands and a restaurant located immediately to the North and single family residences immediately to the South. Directly across the street from the premises is an assisted-living facility known as "Brighton Gardens," which houses senior citizens. Most of the property was to be above the floodplain except for a proposed underground parking garage that was to enclose, for the convenience of the residents, approximately half of the 146 parking spaces. At the time of the variance application, Caliber had not yet applied to the Department of Environmental Protection for a stream encroachment permit and other needed approvals.
To consider the application, the Board conducted hearings that spanned several months. Needless to say, a large part of the testimony concerned whether the site was suitable for the project considering its propensity to flood.
One Board member noted, for example, that during Tropical Storm Floyd, water came up to Paramus Road and flooded an area that would immerse the entire proposed underground parking garage. Apparently, during Floyd, the Board member recalled that waters rose so quickly that rescue workers had very little time to remove residents. A neighbor testified that the entire site was submerged with flood waters during Floyd. She also indicated that the flood waters were several feet deep for "days." She further testified that there was frequent flooding on the site. Another Board member remembered an incident where a woman was actually swept away by flooding in the area.
Although the Board did not present any expert testimony regarding the flooding issue, Caliber's own engineer confirmed that if the structure had existed in the past, the garage probably would have flooded two and perhaps three times during the past fifty years. The engineer's solution to the flooding problem was that the residents would have to move their cars from the underground parking area to the other parking spaces above flood levels.
Caliber's architect testified that the average congregate care resident would be between seventy and seventy-five years of age. The architect conceded that the parking garage may be susceptible to flooding, and noted that the elevators in the building would be "programmed" not to go down to the parking garage level in the event of flooding.
Caliber's traffic engineer revealed that the parking for the project had been designed to accommodate flooding in the parking garage and that there was adequate parking outside the building in the event of flooding in the garage.
After the hearings concluded, the Board voted five to two against approval of the use variance. The Board found not credible Caliber's "testimony with respect to the number of residents, their driving habits and the impact the residents will have on the traffic." The Board found the structure would be massive and traffic problems would burden Paramus Road because the "intended residents are healthy individuals that drive more than seniors who reside in an assisted living complex." The Board further found that the complex was not needed as there were several senior citizen housing facilities already in Paramus. Because the governing body intended to exclude [senior citizen housing] from the R-100 zone, the Board also found "the proposal violates the Master Plan and Zone Plan of Paramus." Most significantly, the Board found "that it is anticipated that the premises may flood in the future" and that it was "not appropriate to build a large senior citizen housing complex knowing it will flood regularly." Because the negative effects were substantial, the Board did not believe they could be mitigated by reasonable conditions.
On Caliber's appeal to the trial court, the court reversed the Board and directed the granting of the variance in a written decision. The court first recognized that the Board had found that the facility was "not needed in Paramus as an inherently beneficial use." The court next noted, however, that the municipal planner "referred to the project as an inherently beneficial use," and suggested a number of conditions that could be imposed "to minimize the perceived detrimental effects." The judge quoted the planner's advice that "[g]iven the inherently beneficial nature of the use, the board should weigh the significance of any detrimental impacts and determine whether these impacts are substantial or can be mitigated by proper sit[e] planning." The court then recognized the Board's conclusion "that the plaintiff's experts were not credible, that the problem of flooding was, in fact, real, that the structure would be massive, traffic problems would be created, and that these negative impacts were substantial." Despite recognizing the Board's conclusion, however, the court disposed of the matter with the following conclusory statement: "The applicant has met its burden establishing the positive criteria and the beneficial nature of the use. This decision is in reference to the use variance only. Applicant must still seek approval of all of the aspects of the development plan."
We do not understand the trial court's decision. The Legislature has vested discretion in local boards to make variance decisions. Booth v. Bd. of Adj. of Rockaway Twp., 50 N.J. 302, 306 (1967). Due to its "peculiar knowledge of local conditions," a zoning board has wide latitude within which to exercise its delegated discretion. Ibid. Reviewing courts may not reverse a local board unless its decision is arbitrary, capricious, or unreasonable. Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268, 296-97 (1965) ("Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.").
A board is free to accept or reject the testimony of any witness who testifies at the hearing and when reasonably made, the Board's choice is "conclusive on appeal." Id. at 288. Moreover, it is presumed on appeal that boards "will act fairly and with proper motives and for valid reasons." Id. at 296. Indeed, a reviewing court must accord a board's variance denial even greater deference than that accorded a decision granting a variance. Nynex Mobile Communications Co. v. Hazlet Twp. Zoning Bd. of Adj. 276 N.J. Super. 598, 609 (App. Div. 2001) ("[A]n applicant bears a heavy burden in overcoming a denial.").
In the absence of any real findings explaining its decision, we can only interpret the court's conclusion as a violation of these basic review principles. A reviewing court may not reverse a Board solely because it would have made a different decision. It is not the court's place to substitute its judgment on factual disputes for that of the Board. Kramer, supra, 45 N.J. at 296. Courts "ordinarily should not disturb the discretionary decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law." Lang v. North Caldwell Zoning Bd. of Adj., 160 N.J. 41, 59 (1999).
In this case, we agree with Caliber that the proposed use is inherently beneficial. See Jayber Inc. v. Municipal Council, 238 N.J. Super. 165, 174-75 (App. Div. 1990). However, our Supreme Court has recognized some uses as "more compelling than others." Sica v. Bd. of Adj. of the Twp. of Wall, 127 N.J. 152, 165 (1992). The Court specifically noted, for example, "community residences for the developmentally disabled," "community shelters for victims of domestic violence," and "child care centers," as examples of the most weighty beneficial uses. Ibid. Even though a senior citizen congregate housing facility is beneficial, it could be excluded if the negative factors were weighty and on balance constituted a "substantial detriment to the public good." Id. at 166.
The Board found that the use "was not needed" in Paramus as there were several senior citizen housing facilities in Paramus and neighboring towns. In fact, the Paramus zoning ordinance was amended in 2003 to specifically preclude senior citizen housing in the R-100 residential zone. Before the amendment, senior citizen housing was a permitted conditional use in the zone. See footnote 2 The Board's concerns about traffic seem reasonable and based upon the record, which revealed that there would be well over 100 persons at the premises per day who might be driving over heavily traveled Paramus Road, which narrows at the site and already carries about 25,000 vehicles per weekday. Furthermore, the Board found that it was not appropriate to build a senior citizen facility in a flood zone. We cannot conclude that these findings were unreasonable or not sufficiently based on the record.
Although Caliber claims the Board's resolution is ambiguous and does not reflect that it applied the correct Sica weighing test to adjudge the merits of the variance, we disagree. It is clear from the resolution that the Board considered the planner's report, which the judge quoted, but rejected its recommendations. When the Board's resolution is considered as a whole we can safely adduce that the proper weighing test was applied and that the Board concluded, based upon the testimony presented, that the detrimental effects of this development substantially outweighed the positive and could not be mitigated. See Id. at 163-66. In view of the traffic and serious flooding concerns, the Board's conclusion does not appear to be arbitrary or unreasonable. Accordingly, the Board's decision should have been affirmed. Lang, supra, 160 N.J. at 59.
Because of this result, we must address Caliber's cross-appeal. Here, Caliber argues that by denying its application for a variance, the Board violated the Federal Fair Housing Amendments Act, 42 U.S.C.A. 3601 to 3631. The Act precludes discrimination by refusing "to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [handicapped persons] equal opportunity to use and enjoy a dwelling." Assisted Living Associates of Moorestown L.L.C. v. Moorestown Township, 996 F. Supp. 409, 434 (1998) (citing 42 U.S.C.A. 3604(f)(3)). The Act defines handicapped as "a physical or mental impairment which substantially limits one or more of such person's major life activities." 42 U.S.C.A. 3601(h)(1). The law "prohibits the enforcement of zoning ordinances and local housing policies in a manner that denies people with disabilities access to housing on par with that of those who are not disabled." Hovsons, Inc. v. Twp. of Brick, 89 F.3d 1096, 1105 (1996).
With respect to the Act, Caliber specifically argues that "a municipality has a duty to make reasonable accommodation to allow for [a congregate care] facility within its borders. The absence of any zoning district within the Borough where such a housing facility is permitted . . . requires that reasonable accommodation be made to allow for a congregate care facility."
The record does not support Caliber's assertion that significant numbers of residents of the proposed facility would be disabled. Caliber submits no authority applying the statute to congregate care facilities, and the record does not permit a finding that the facility would fill with semi-independent residents who would meet the handicapped definition. Indeed, the facility would also be open to independent seniors who presumably would not be disabled under the Act. Therefore, the trial court correctly rejected this speculative argument.
We reverse the trial court's reversal of the Board's decision and restore the Board's resolution denying the use variance. We affirm the trial court's order, which found the Board's action did not violate the Federal Fair Housing Amendments.
Reversed in part affirmed in part.

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Footnote: 1 The application also required, among other permits and approvals, site plan approval and a height variance because the proposed building was three feet over the limit. Caliber, however, bifurcated its development application as permitted under N.J.S.A. 40:55D-76b, and deferred consideration of all other issues except the use variance. Bifurcation, though permitted under the statute, renders this appeal interlocutory. Nevertheless, because the parties have fully briefed the use variance issue, and we see no point in delaying disposition, we grant leave to appeal nunc pro tunc. R. 2:2-3(b); R. 2:2-4; R. 2:5-6.
Footnote: 2 At the time of the ordinance's amendment, Caliber had a pending application for a senior citizen complex to be built at the same location. In response to the amendment, Caliber converted its proposal to the current development.

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