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Princeton Junction Development Partners v. Washington Township

A-6433-06T3 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING — The deference given to a land use board’s decision is greater when a court reviews a denial, rather than a grant, of a variance.

A builder sought to construct 37 single family detached homes for residents 55 or older on a fourteen acre vacant parcel. Variances were needed because the property was zoned as rural, thereby only permitting construction of one single family detached home on a minimum lot size of two acres. The municipal engineer testified that the variance would allow the builder to construct “more quaint” senior housing in the area. An area real estate broker testified that the property was in an area where there was a real need for the development of age restricted housing and that residents desired such property. The real estate broker stated that homes would sell beginning in the low $300,000’s. Board members, after hearings, indicated that seniors were looking for subsidized and not high-end homes. The board planner could not recommend the variance because he believed it would cause loss to the natural environment on the property. When the board denied the application, the builder sued, claiming that the application was denied without a reasonable basis, and therefore the board acted in an arbitrary, capricious, and unreasonable manner. The lower court found that the builder had not met its burden of satisfying the applicable positive and negative criteria for a use variance, and dismissed the builder’s complaint. The builder appealed.

The Appellate Division affirmed the lower court’s ruling that the board denial was neither arbitrary nor capricious nor unreasonable. It held that deference is greater when a court reviews a denial, rather than a grant, of a variance. The Court noted that while housing for the elderly is an inherently beneficial use and, on its face, would significantly lessen an applicant’s burden and presumably satisfy positive criteria, the housing at issue would have been price prohibitive for many elderly. It noted that the record showed no special services that these residences would provide to the seniors. Additionally, the municipality’s experts had testified that the project would not have promoted the general welfare since the construction would have been inconsistent with the surrounding properties and with the master plan by eliminating open space and by harming environmental conditions.

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