KENSINGTON SENIOR DEVELOPMENT, LLC VS. THE TOWNSHIP OF VERONA (L-1710-19, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1010-19
KENSINGTON SENIOR
DEVELOPMENT, LLC,
Plaintiff-Appellant,
v.
THE TOWNSHIP OF VERONA
AND THE ZONING BOARD OF
ADJUSTMENT OF THE
TOWNSHIP OF VERONA,
Defendants-Respondents.
____________________________
Argued October 21, 2020 – Decided December 1, 2021
Before Judges Fuentes, Whipple, and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-1710-19.
Paul H. Schneider argued the cause for appellant
(Giordano, Halleran & Ciesla, PC and Connell Foley
LLP, attorneys for appellant; Paul H. Schneider,
Matthew N. Fiorovanti, and Robert L. Podvey, on the
briefs).
Mark J. Semeraro argued the cause for respondents
(Kaufman, Semeraro & Leibman, LLP, attorneys for
respondents; R. Scott Fahrney, and Mark J. Semeraro,
on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Plaintiff Kensington Senior Development, LLC (Kensington), appeals
from the final judgment of the Law Division dismissing its action in lieu of
prerogative writs filed pursuant to Rule 4:69-6(b)(3) and upholding the decision
of the Zoning Board of Adjustment of the Township of Verona (Board) to deny
Kensington's application for preliminary and major site plan approval and a use
variance to construct a ninety-two-unit assisted living facility with related site
improvements. The application also required demolition of the existing building
and continuation of the parking lot as a preexisting nonconforming use.
Kensington argues the Law Division erred as a matter of law because the
Board failed to properly apply the four-factor balancing test established by the
Supreme Court in Sica v. Bd. of Adjustment, 127 N.J. 152 (1992). Kensington
argues the misapplication of these legal factors rendered the Board's decision to
deny its application arbitrary, capricious, and unreasonable. The Board argues
the lengthy resolution it adopted on February 14, 2019, shows it thoroughly
evaluated the merits of plaintiff's application and properly applied the Sica
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balancing test. The Township of Verona urges this court not to consider
plaintiff's untimely and unsubstantiated arguments attacking the
constitutionality of its municipal zoning ordinance, an issue plaintiff concedes
was not raised before the Law Division. After reviewing the record developed
before the Law Division and mindful of our standard of review, we affirm.
I.
Kensington is the contract purchaser of two properties located on
Bloomfield Avenue in Verona. One property is located in the Town Center Zone
District (TC); the other is on Claremont Avenue, which is zoned in the A1 Zone
District (Multi-Family Low Rise). Kensington's application proposed to
demolish the building located on Bloomfield Avenue, which was used as a
banquet hall, and construct a three-story, ninety-two-unit assisted living facility
with underground parking. The Claremont Avenue property would provide
accessory parking to the assisted living facility. Because the Claremont Avenue
property was already used as an accessory parking lot for the banquet hall, its
continued use for this purpose constituted a preexisting nonconforming use.
Kensington's application to the Board sought the following variances:
(1) Use variance pursuant to N.J.S.A. 40:55D-70(d)(1), to
construct and operate an assisted living facility, which is not
permitted under Section 150-17.14 of the Verona Zoning
Ordinances.
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(2) Use variance pursuant to N.J.S.A. 40:55D70(d)(1), to operate
and maintain an off-site accessory parking lot associated with
the assisted living facility.
(3) Bulk variance pursuant to N.J.S.A. 40:55D-70(c) for locating
parking spaces within or underneath the principal building in a
non-residential zoning district, which is not permitted under
Section 150-12.1.B.2 of the Verona Zoning Ordinances.
(4) Bulk variance pursuant to N.J.S.A. 40:55D-70(c) for minimum
requirements for the size of an off-street parking space at the
Claremont Avenue Lot, which is not permitted under Section
150-12.2.A of the Verona Zoning Ordinances.
(5) Bulk variance pursuant to N.J.S.A. 40:55D-70(c) for minimum
number of required driveways at the Claremont Avenue Lot,
which is not permitted under Section 150-12.8.C.2 of the
Verona Zoning Ordinances; and
(6) Bulk Variance pursuant to N.J.S.A. 40:55D-70(c) for minimum
drive aisle width for a two-way driveway at the Claremont
Avenue Lot, which is not permitted under Section 150-
12.8.C.3(a) of the Verona Zoning Ordinances.
In addition to these zoning restrictions and bulk requirements, plaintiff's
proposal was directly at odds with how Verona envisioned the area in its Master
Plan:
The land use concept for the Central Business District
(CBD) or [TC] is to protect the integrity of existing
retail and business development at a pedestrian scale.
In order to meet this objective, the Township should
continue to support the district with public parking
facilities, and the zoning ordinance should be modified
to limit office and residential uses to those locations
other than at street level. This district promotes retail
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development, with a first[-]floor use restriction
applying to all offices except travel agencies, brokerage
firms, real estate offices and opticians since these office
uses often attract drop-in trade. These office uses also
offer the potential for attractive window displays and
attract pedestrian interest . . . in store-to-store shopping.
The placement of drive-thru facilities of any kind
within this district detracts from a pedestrian-oriented
district and should not be permitted.
Consistent with this vision, Verona Zoning Ordinance Section 150-I 7.14
permits only businesses such as retail stores, retail service establishments --
including stores, shops, and other retail businesses that operate within the
confines of a commercial building -- restaurants, bakeries, and nonalcoholic
beverage bars.
II.
A
In support of its application, Kensington presented the testimony of the
following witnesses: (1) Kensington Representative Michael Rafeedie;
(2) Architect Paul Sionas, A.I.A.; (3) Engineer Michael Petry, P.E.; (4) Traffic
Engineer Andy Jafolla, P.T.O.E.; and (5) Professional Planner Kathryn M.
Gregory, P.P., A.I.C.P.
Rafeedie explained the proposed plan for the Bloomfield Avenue property
involved demolishing the existing banquet hall and constructing a three -story,
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ninety-two-unit assisted living facility with approximately 85,000 square feet of
lot coverage and an underground parking area to accommodate fifty-five parking
spaces. Fifty-four additional parking spaces would be available in the accessory
parking lot on the Claremont Avenue property.
When asked why Kensington decided to build this facility in Verona,
Rafeedie testified this municipality did not have any property dedicated to serve
the needs of residents who have difficulty performing daily activities due to age
or physical disabilities. To find facilities that met their needs, these Verona
residents' closest options would be relocate to Fairfield, West Caldwell, or West
Orange. Rafeedie continued:
It's our belief that everyone regardless of age should be
able to live and thrive in the town in which they want
and more importantly as folks get older they should be
able to live and thrive in the community in which they
helped build and create and contribute to for all the
years that they live in that community.
Rafeedie described the Bloomfield Avenue property as an ideal location
for the proposed assisted living facility because "our experience shows that
seniors want to remain downtown in the urban environments near where they
did live and shop and dine and go for entertainment for all those years near
walkable amenities." Rafeedie also claimed an assisted living facility was
economically compatible with the business zoning district. He testified that, on
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average, Kensington properties spend nearly one million dollars in the local
community. However, at a Board hearing held on August 9, 2018, a member of
the public asked him to identify the authoritative source he relied on to support
his claim. Rafeedie was unable to provide any competent evidence.
Based on the experience derived from other Kensington-owned assisted
living facilities, Rafeedie anticipated the Bloomfield Avenue location would
receive between 15,000 to 20,000 visitors per year. He described it as a
"destination for family and friends depending on the size of the property . . . ."
He also estimated the facility would create "over [one hundred] well paying full-
time jobs." Employees of the facility would be assigned to three separate shifts.
The morning and evening shift would have approximately forty to forty-five
staff members. The morning shift would be from 7:00 a.m. to 3:00 p.m.; the
evening shift would be from 3:00 p.m. to 11:00 p.m.; and the overnight shift
would be from 11:00 p.m. to 7:00 a.m. The overnight shift would ordinarily
require less personnel. The Board was concerned about the potential traffic
congestion during employee shift changes. In response, Rafeedie claimed it was
unlikely the staff would arrive exactly at the end of each shift. "The residents'
needs and the building's needs drive the employee staffing."
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Finally, Rafeedie explained how they planned to remove the waste
generated by the facility's operation. Based on their experience from other
Kensington assisted living facilities, they anticipated: (1) garbage pick-ups
would occur four to five times per week; (2) recycling pick-ups would occur two
to three times per week; (3) produce deliveries would occur three to six times
per week; and (4) dry food and bread delivery would occur two to three times
per week. Based on statistics gathered from the five other Kensington assisted
living facilities, they projected an average of seven to eight ambulance calls per
month. Rafeedie assured the Board that Kensington would contract to provide
its own ambulance service.
B.
Kensington presented the testimony of several witnesses whom the Board
accepted as experts in their field. Engineer J. Michael Petry began his
presentation by describing the typography and condition of the Bloomfield
Avenue and Claremont Avenue properties. He explained how the facility would
integrate within the exiting community. He described "the proposed vehicular
ingress and egress" from the Bloomfield Avenue property and expected tha t
"[a]ll vehicles exiting the . . . Bloomfield Avenue parking garage beneath the
assisted living facility would have to exit the site onto Claremont Avenue." We
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incorporate by reference the Board's findings derived from Petry's testimony as
described in its February 14, 2019 resolution, paragraphs numbered twenty-
eight to thirty-seven.
Kensington's counsel next presented the testimony of Traffic Engineer
Andrew Jafolla, who addressed the impact the assisted living facility would have
on existing traffic patterns. Jafolla described the results of a traffic study he
completed on the Bloomfield Avenue property on Friday, July 12, 2018, from
6:00 p.m. to 7:00 p.m. The banquet hall was booked for a social event that day
and expected 245 guests. The Board found the guests who attended this event
were required to enter through the Bloomfield Avenue entrance and "utilize the
valet service offered." The Board's finding in this respect, however, is not
entirely consistent with Jafolla's testimony, who actually stated:
[T]he count[] we took was really just the people that
utilized the driveway. Most of the people that would
use the driveway would use the valet. They weren't
required to do so, but for the most part they did use it.
And what that ends up doing is creating a stack out onto
Bloomfield Avenue . . . .
[(Emphasis added).]
This created a backup of vehicles onto Bloomfield Avenue as sixty-four
cars attempted to enter the banquet hall's parking area. The banquet hall has a
maximum occupancy capacity of 475 people. Because only 245 guests were
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expected, Jafolla made clear his study did not consider traffic conditions at the
banquet hall's peak occupancy capacity.
Jafolla testified the main source of traffic generated by an assisted living
facility would be from employees and visitors. Based on data compiled by the
Institute of Transportation Engineers (ITE) and made available in its Trip
Generation Manual (TGM), Jafolla anticipated the facility would generate
twenty-five total trips during the morning rush hour, thirty-four total trips during
the afternoon rush hour, and thirty-five total trips during peak hours on
Saturdays. Although the TGM did not compile trip generation data for banquet
halls, he relied on data from the New Jersey Department of Transportation
Highway Access Permitting System (HAPS) to determine an anticipated trip
generation for the banquet hall at its full capacity of 475 people. Based on this
data, Jafolla opined the banquet hall generates seventy-six total trips during the
morning rush hour, 143 total trips during the afternoon rush hour, and 157 total
trips during the Saturday rush hour.
According to Jafolla, the daily trip generation for the banquet hall at full
capacity of 475 people was 1,359; the daily trip generation for the proposed
assisted living facility was 500. Based on these data, the impact on traffic of
the proposed assisted living facility would be minimal compared to the vehicular
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activity generated by the banquet hall. This prompted the following exchange
between a Board member and Jafolla:
[BOARD MEMBER]: So peak hours does that take
into account, so like, in Verona we have a middle
school right up the street in the center of our town and
there is a variety of elementary schools off, in areas off
of Bloomfield Avenue. So, I'm interested in finding out
how the additional traffic is going to impact what I
consider to be our peak traffic hour here which would
be school drop-offs and [school] pick-ups, so around
3:00, 3:30, 2:45. Would you have any, did you do any
analysis with respect to how the traffic will impact
those times?
JAFOLLA: Well, the traffic that is going to happen
there is going to be less than the peak hours that I just
mentioned. So, the impacts that are going to be
happening on the peak hours are minimal, are very
small. Right? They are really in my opinion there is
no material impact of this traffic. The traffic that is
going to occur during the other hours which would
include the school piece associated with this site is
going to be even less, so it would be even less than
those peak hours. So again, I would say those impacts
are going to be minimized.
Based on the anticipated trip numbers Jafolla produced, a member of the
public expressed the following concerns about the potential increase in traffic:
PUBLIC MEMBER: Just a question, so I think I heard
you say there was about 500 trips that would be
happening a day. Obviously for those who are exiting
on Bloomfield you can't make a left so I would have to
assume that there would be a fair number of trips that
would be happening coming off of the Claremont exit?
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JAFOLLA: Well, all trips would have to use Claremont
because you would not be able to exit to Bloomfield
from this site. You would only be able to come into the
site from Bloomfield.
PUBLIC MEMBER: Would there be 500 trips on
Claremont a day?
JAFOLLA: Yes.
Another member of the public questioned the credibility of the anticipated
trip numbers:
PUBLIC MEMBER: I live a door away from [the
banquet hall]. And they have an average of one affair
a week. And I doubt very much that they have 1,300
trips going in and out of that place. If they did they
wouldn't be selling the property. But, and it's an
average of once a week, so I don't know how you figure
that that will be less traffic when it's 3,500 and if they
did have 1,300 one day a week how that's less traffic?
I don't know how that's figured.
JAFOLLA: Well, again the daily traffic is something I
provided because the [B]oard asked. As far as traffic
impact goes and what the general public feels, it's
standard practice that you don't really use the daily
traffic to evaluate that. You utilize the peak hour traffic
flow. That's what the public feels when they utilize the
roadway system. They feel the peak hour. They feel
that hour that they are coming home in the evening.
They feel that hour that they are going to work in the
morning.
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After the concerns expressed by the Board and members of the public,
Jafolla returned to testify at a hearing held on October 25, 2018, to discuss data
gathered from a traffic analysis completed on Wednesday, September 12, 2018,
from 7:00 a.m. to 9:00 a.m. and 2:30 p.m. to 6:00 p.m. and on Saturday,
September 15, 2018, from 11:00 a.m. to 2:00 p.m. Jafolla explained, "we
basically created a box around the site . . . [and covered] more or less" the
following five corners: (1) Bloomfield Avenue and Park Avenue, (2)
Bloomfield Avenue and Verona Place, (3) Bloomfield Avenue and Cumberland
Avenue, (4) Claremont Avenue and Cumberland Avenue, and (5) Claremont
Avenue and Park Avenue.
This new traffic study was also conducted to clear up any misconception
Jafolla may had unintentionally implied about the banquet facility during his
previous testimony:
The testimony provided last time was a comparison of
the trip generation of the banquet facility when it's
operating at a capacity of 475 people, as compared to
an assisted living facility on an everyday basis.
. . . I just want to clarify that. There was a comment
letter that was issued to the [B]oard and I think a lot of
those comments had to do with that misinterpretation.
My testimony last meeting did mention that, but I just
want to be clear with that and upfront that that is, you
know, that was my testimony at the last meeting.
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According to Jafolla, between 3:00 p.m. to 3:15 p.m., "almost all of the
pedestrian traffic along Claremont Avenue consisted of students[,] which passed
the proposed driveway for the Claremont Avenue property." Outside of this
fifteen-minute period, "there was very little pedestrian traffic noted on
Claremont Avenue." 1 Jafolla also addressed the safety concerns associated with
vehicles making left turns to enter the Bloomfield Avenue property. Jafolla
claimed once the assisted living facility is operational, only six vehicles per hour
were expected to make left turns.
Once again relying on the TGM, which presumes an assisted living facility
licensed by the State of New Jersey to have 130 beds, which is also the number
of beds proposed by the applicant, Jafolla opined it was reasonable to anticipate
twenty-five total trips during the morning rush hour, thirty-four total trips during
the afternoon rush hour, and thirty-five total trips during the Saturday peak hour.
Jafolla used data from HAPS to determine an anticipated trip generation
for the banquet hall at its full capacity of 475 people. Based on these data,
Jafolla claimed the banquet hall generates seventy-six total trips during the
1
Although the Board Chairperson inquired about the possibility of the applicant
creating a crosswalk on Claremont Avenue, the Board's attorney made clear that
was "the township's responsibility. We can only make a recommendation. The
governing body would make the ultimate decision as to whether or not a
crosswalk could be installed."
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morning rush hour, 143 total trips during the afternoon rush hour, and 157 total
trips during the Saturday rush hour. Jafolla calculated the daily trip generation
for the banquet hall at full capacity to be 1,359; the estimated weekday trip
generation for the proposed assisted living facility was 500. Thus, he claimed
the impact on traffic of the proposed assisted living facility would be minimal
in comparison to the property's current use as a banquet hall.
C.
Professional Planner Kathryn M. Gregory testified as an expert witness at
the hearing held on October 11, 2018. Gregory began her presentation before
the Board by asserting that Verona "technically" does not permit assisted living
facilities "anywhere in [its] zoning ordinance." She thereafter immediately
qualified her blanket assertion by acknowledging the zoning ordinance
expressly authorizes age-restricted housing and assisted living facilities in
redevelopment district four. Gregory also noted
there's been discussions before about inherently
beneficial. There is some case law that is associated
with inherently beneficial uses and it has been found
that assisted living facilities are indeed inherently
beneficial.
And that was in the Sun Rise Development [v.] the
Zoning Board of Adjustment of the Borough of
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Madison.2 It was found that housing for the elderly is
an inherently beneficial use of high priority. Assisted
living facilities including those operated for profit are
to be treated as inherently beneficial uses.
Gregory described how, in her view, the applicant proved the positive and
negative criteria codified by the Legislature in N.J.S.A. 40:55D-70(d) and
clarified under the four-prong test established by the Supreme Court in Sica.
She opined the proposed assisted living facility was inherently a beneficial use
because it would serve "a special needs population" and be the only one of its
kind in Verona. The next step is to determine the negative criteria. This requires
the Board to assess the effect the proposed use would have on the surrounding
properties and evaluate and determine whether it will damage the character of
the neighborhood or undermine the municipality's growth policy reflected in its
master plan, thus constituting a "substantial detriment to the public good." Sica,
127 N.J. at 163 (quoting Medici v. BPR Co., 107 N.J. 1, 22 n.12 (1987)).
Addressing this standard, Gregory provided the following testimony:
While I venture to say that I don't think that there [are]
any detrimental effects from the granting of the use
2
The case cited by Gregory is a July 1999 unpublished opinion by this court
which has no precedential value as a matter of law. R. 1:36-3. As a Professional
Planner, Gregory is not expected to be familiar with our Court Rules. However,
she is also not authorized to testify about legal matters beyond the scope of her
competency and more akin to the practice of law.
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variance from the assisted living facility in this
location, I think that the building itself meets the intent
of the town center zone and I think that has a lot to do
with addressing the street scape.
. . . [T]he use there today does not address the street
scape. It does not really advance what the town center
I think is envisioned to be. That is the walk of the
street, eyes on the street, you don't have any of that with
the building. You have a bunch of cars coming to the
site for one event and then they are leaving. They are
not, people are not coming to the site and then deciding
to walk around town and take advantage of the other
opportunities that might be in there in terms of
restaurants and shops etc.
So I think that the architecture of the building and the
fact we do have entrances on the street, I believe that
we also meet the intent because there will be less traffic
generated than the current use. I also believe that in
terms of the noise factor as you know now what we
have is a catering hall and it's really a high demand --
excuse me, of traffic that happens late at night because
people are all leaving the facility at the same time. So
that's a lot louder than if you have people that are
actually living in an assisted living facility because
usually at night it's pretty [quiet]. Usually the residents
are already in bed at a much earlier hour. So I think
that that actually helps the character of the
neighborhood in terms of the noise impact because you
do have a lot of residential neighbors . . . .
The third prong under Sica addresses the Board's power to consider
reducing any detrimental effects by imposing reasonable conditions on the use.
Gregory noted the Board's concern "about school children and maybe the traffic
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during that period . . . ." Although she opined this was "not an issue," she
testified "the applicant is more than willing to put up traffic signs and/or alter
shifts or whatever, you know, we need to do to appease any potential detrimental
effects. Although I don't believe there really are any." (Emphasis added).
The fourth prong requires weighing the positive and negative criteria.
Gregory opined "the proposed development and use would promote the public,
health, safety, and general welfare, [and] promote appropriate use of the
property to ensure adequate light, air, and open space and would provide an
appropriate location for a necessary use to meet the needs of Verona residents."
She did not find any basis to conclude the project would be a substantial
detriment to the public or to Verona's Master Zoning Plan. In this context, a
member of the Board asked Gregory whether the assisted living facility's effects
on traffic could be consider a substantial detriment because "it's going to have
the traffic there during the day when Bloomfield Avenue is a lot busier ."
Gregory agreed the assisted living facility would generate more traffic during
the day. However, she claimed "it's not going to be such a concentrated amount
of traffic."
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III.
The record reflects the members of the Board took their responsibility
seriously, conducted themselves mindful of their civic duty, and heeded the legal
standards applicable to this case as explained to them by their attorney. On
January 10, 2019, the members of the Board heard the comments of residents of
Verona, as well as from any member of the general public. The Board then
publicly deliberated the issues raised by the Kensington's project and, by a vote
of four to three, rejected the application.
On February 14, 2019, the Board adopted a comprehensive resolution
memorializing the testimonial evidence presented by the witnesses, the
comments received from the public, and the factual findings and legal
conclusions it reached based thereon. 3 The Board made the following legal and
general conclusions:
(1) The proposed assisted living facility would
violate the provisions of the Verona Zoning
Ordinance;
(2) No evidence of regional need was presented by
the Applicant for the assisted living facility;
3
The record before the Board is itemized in a list of fifty-five exhibits it
considered which include correspondence, photographs, reports, drawings, and
reports submitted by architects, engineers, and professional planners, and d ata
derived from studies published by government agencies.
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(3) The 2009 Verona Master Plan indicates that
offices and residential uses should be limited to those
locations other than street level in the [TC];
(4) The proposed assisted living facility will result in
substantial impairment to the [TC] Zone due to the
fact that the proposed assisted living facility will
have residential units on the street level and does not
include retail or otherwise permitted component uses
in its design;
(5) The proposed assisted living facility will result in
substantial detriment to the public good as a result of
increased traffic on Claremont Avenue and the
nearby residential streets from vehicles exiting both
the . . . Bloomfield Avenue property and the . . .
Claremont Avenue property;
(6) The proposed assisted living facility will result in
substantial detriment to the public good due to safety
concerns for pedestrians crossing Claremont Avenue
from the overflow parking area at the . . . Claremont
Avenue property to the assisted living facility as well
as the need for large refuse collection and delivery
trucks backing out of the service driveway onto
Claremont Avenue;
(7) The proposed assisted living facility will result in
substantial detriment to the public good as a result of
increased traffic congestion on Bloomfield Avenue
as a result of vehicles waiting to make left hand turn
movements into the proposed Bloomfield Avenue
driveway to access the . . . Bloomfield Avenue
property;
(8) The proposed assisted living facility will result in
substantial detriment to the public good as a result
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[of] the potential for vehicular turning conflicts due
to the proximity of the proposed Bloomfield Avenue
driveway to access . . . Bloomfield Avenue and the
driveway to Verona Place Apartments located across
the street . . . and . . . Bloomfield Avenue in Verona.
IV.
On March 5, 2019, Kensington filed an action in lieu of prerogative writs
in the Law Division claiming the Board's denial of its application to construct
an assisted living facility in Verona's Town Center district was arbitrary,
capricious, and unreasonable because it presented sufficient grounds to show the
facility was an inherently beneficial use and satisfied all the applicable criteria
of the Municipal Land Use Law (MLUL), N.J.S.A. 40-55D-1 to -163.
Furthermore, for the first time in this case, Kensington named the Township of
Verona as a defendant, alleging the municipality violated the New Jersey Civil
Rights Act, N.J.S.A. 10:6-2. Kensington claimed Verona:
Defendant Township since 2015, has been involved in
litigation involving changing Verona's ordinances to
permit low and moderate income housing in the
Township.
Defendant Township was aware, prior to the start of the
hearings on this Application that [p]laintiff's project
would provide [thirteen] affordable beds for a protected
class, those persons who need the assistance and
services provided by assisted-living.
....
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Defendant Township, through the various actions at the
hearings, or otherwise, failed to recognize the
assistance [p]laintiff's project would provide to the
Township in the low and moderate income housing
litigation.
Based on these nebulous and unsupported allegations, Kensington petitioned the
Law Division to award it monetary damages, counsel fees, and any other relief
as may be just and equitable.
On October 7, 2019, Judge Thomas R. Vena held a hearing on the matter
and rendered an oral opinion dismissing Kensington's complaint, followed by a
written opinion. After summarizing the factual record, Judge Vena upheld the
Board's denial of the zoning application. In this appeal, Kensington reiterates
the arguments it raised before the Law Division. It claims the Board failed to
properly consider the evidence presented and thereafter apply the four-factor
Sica balancing test. Kensington maintains the Board's decision is predicated on
"subjective, unsubstantiated personal opinions as to the putative negative
impacts . . . ."
We start our analysis by reaffirming our standard of review. The decision
of the Board to deny Kensington's use variance application based on its failure
"to satisfy the negative criteria, like the review of decisions of local land
use agencies generally, begins with the recognition that the board's decision
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is presumptively valid, and is reversible only if arbitrary, capricious, and
unreasonable." Sica, 127 N.J. at 166-67. The judiciary grants this presumption
to local zoning boards because they "possess special knowledge of local
conditions and must be accorded wide latitude in the exercise of their
discretion." Id. at 167.
"Generally, to satisfy the positive criteria, an applicant must prove that
'the use promotes the general welfare because the proposed site is particularly
suitable for the proposed use.'" Smart SMR v. Fair Lawn Bd. of Adjustment,
152 N.J. 309, 323 (1998) (quoting Medici v. BPR Co., 107 N.J. 1, 4 (1987)).
Here, notwithstanding Kensington's protestation, it is undisputed that an assisted
living facility is an inherently beneficial use. Although this significantly
reduces its burden of proof, Kensington still must prove its application will not
result in substantial detriment to Verona's plans for the development of the Town
Center and its zoning vision as reflected in its Master Plan.
The Legislature codified this zoning principle in 1997 when it amended
N.J.S.A. 40:55D-70(d) to include the following provision:
No variance or other relief may be granted under the
terms of this section, including a variance or other relief
involving an inherently beneficial use, without a
showing that such variance or other relief can be
granted without substantial detriment to the public good
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and will not substantially impair the intent and the
purpose of the zone plan and zoning ordinance.
[(Emphasis added).]
Verona's Master Plan envisions the TC Zone District to be a business area
that would encourage the development of the following commercial activities:
No building or premises shall be erected, altered or
used except for the uses designated . . . as follows:
(1) Retail stores and retail service establishments,
including stores or shops or retail business conducted
entirely within the confines of a building.
(2) Cafeterias, full-service restaurants, snack and
nonalcoholic beverage bars, confectionery and nut
stores, retail bakeries. These uses shall have a
maximum seating capacity of 100 patrons. These uses
shall be permitted on lots having frontage on
Bloomfield Avenue.
(3) Banks and other financial institutions, but not
including drive in uses.
(4) Theatrical and motion picture theaters.
(5) Family day care centers.
(6) Personal service establishments.
The demolition of a banquet hall to construct a ninety-two unit, three-story
assisted living facility in the midst of this designated business center is
irreconcilable with the type of vibrant, commercial activity envisioned by the
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Township's governing body when it adopted its Master Plan. The Board's
resolution denying Kensington's application for a use variance and multiple bulk
variances carefully and methodically reviewed the testimony of all the expert
witnesses, as well as the applicant's representative, and concluded the laudable
aspects of the project did not outweigh its profound irreconcilability with the
Township's zoning plans.
The Board concluded the use variance, and other relief Kensington sought,
cannot be granted without substantial detriment to the public good and without
substantially impairing the intent and the purpose of the Master Plan and zoning
ordinance. We discern no legal or factual basis to conclude this decision by the
Board was arbitrary, capricious, and unreasonable. Finally, Kensington's
belated, unsupported claims against the Township based on the New Jersey Civil
Rights Act, N.J.S.A. 10:6-2 lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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