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Flower v. Township of Bridgewater Planning Board

A-0573-04T2 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; PERMITTED USES — A list of permitted uses in a zoning ordinance prefaced by the word, “including,” does not exclude all items not specifically enumerated.

A municipal planning board adopted a resolution approving the construction of a luxury aged-restricted housing development in an R-40 zone. Neighboring property owners sued, claiming that the planning board’s decision was arbitrary, capricious, and unreasonable. The lower court affirmed the planning board’s decision. The neighbors appealed, claiming that the lower court applied an overbroad definition of the term “senior citizen housing development” in its interpretation of the zoning ordinance. The Appellate Division denied the appeal.

The ordinance in question provided for senior citizen housing developments in the R-40 zone, including nursing homes, assisted living facilities, and continuing care communities. The neighbors argued that the inclusion of these examples of types of senior housing developments in the ordinance was designed to limit the approved types of developments to nursing homes and assisted living facilities, and not to allow age-restricted luxury developments. The Court disagreed, noting that the word “include” indicates a partial, but not a complete, list of items and cannot be construed to exclude all items not specifically enumerated. For that reason, the Court found that the municipal zoning ordinance did not intend to exclude other types of senior housing, such as luxury age-restricted developments, from the R-40 zone. The Court also rejected the neighbor’s claim that the planning board failed to adequately consider traffic issues, noting that the developer had already received approvals from the New Jersey Department of Transportation for its proposed driveway, and that the planning board carefully considered the testimony of two expert witnesses, one provided by the developer and the other retained by the planning board.

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