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Norwood Gardens, LLC v. The Zoning Board of Adjustment of the Borough of Norwood

A-5108-08T3 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; AGE-RESTRICTED HOUSING — Age-restricted housing is not an inherently beneficial use and therefore does not constitute “special reasons” to grant a variance because special reasons exist when the proposed use would fill a general community need where there is no other viable location for such use, but just because a property may be well suited for use as age-restricted housing, does not mean that it meets the positive criteria.

A developer applied for use and bulk variances to develop a property for use as an age-restricted condominium complex. The property was located within the municipality’s laboratory and administrative zoning district. That district permitted, as principal uses, office buildings, research laboratories, and nursing homes. The proposed development was near a nursing home, a residential care facility, and an affordable housing complex.

The developer’s planner testified that age-restricted communities are not inherently beneficial uses, but the property nonetheless met the four positive criteria for approving a variance because: (a) it served the general welfare by allowing a continuum of care for “aging in place”; (b) the site was particularly suited for the proposed use because it was compatible and complimentary to the uses in the surrounding area (nursing home, residential care facility); (c) the site was not appropriate for use by the present zoning as office or research space due to the surrounding residential uses; and (d) the proposed use as an age-restricted community advanced several purposes of the Municipal Land Use Law. Regarding the negative criteria, the planner claimed that since the use was compatible with adjacent uses and was secluded from surrounding single-family homes, it would not create a substantial detriment to the public good or the zoning plan. He also claimed that age-restricted communities are low traffic generators and impose little burden on utilities. Lastly, he testified that evolving uses surrounding the property would permit the development of the property as an age-restricted community without impairing the zone plan.

The zoning board denied the application, finding that the developer did not prove any benefit to the community because there wasn’t a real need for an age-restricted residential condominium; that the development would increase residential traffic to already traffic burdened streets; that the number of units proposed were double the appropriate number for the property; and that the proposed structure would overwhelm existing buildings and negatively impact the municipality’s volunteer and police services. The developer sued and the lower court found in the municipality’s favor. The developer appealed, but the Appellate Division also affirmed.

In doing so, the Court disagreed with the developer’s claim that construction of an age-restricted condominium would advance the public health, safety, and general welfare. Instead, it agreed with the lower court that there was nothing expressed in public policy that the planner pointed out by objective standards to show that aging-in-place facilities are important to advance the public health, safety or welfare. It also disagreed with the planner’s opinion that the site was particularly suited for an age-restricted community based on the adjacent uses. That, according to the court, did not constitute “special reasons.” Special reasons exist when the use would fill a need in the general community, where there is no other viable location for that use, and when the property is well-suited. Just because the property may be well suited for that use, does not mean it meets the positive criteria. In essence, the Court rejected the planner’s testimony regarding the need for an age-restricted community, and the site not being appropriate for use in accordance with the applicable zoning requirements, as merely speculative.

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