SUNRISE DEVELOPMENT, INC. VS. PRINCETON ZONING BOARD OF ADJUSTMENT (L-2518-18, MERCER COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-5717-18T2
SUNRISE DEVELOPMENT, INC.,
Plaintiff-Appellant,
v.
PRINCETON ZONING BOARD
OF ADJUSTMENT,
Defendant-Respondent.
_____________________________
Argued telephonically March 24, 2020 –
Decided June 24, 2020
Before Judges Fisher, Gilson and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-2518-18.
Matthew Nicholas Fiorovanti argued the cause for
appellant (Giordano Halleran & Ciesla, PC, attorneys;
Matthew Nicholas Fiorovanti and Paul H. Schneider, on
the briefs).
Karen L. Cayci argued the cause for respondent.
PER CURIAM
Plaintiff Sunrise Development, Inc. (Sunrise) appeals from a judgment
dismissing its complaint in lieu of prerogative writs, which sought to reverse the
denial of its application to the Princeton Zoning Board of Adjustment (Board)
for use and bulk variances to build an assisted living facility. Sunrise argues
that the Board failed to properly apply the test to determine if a variance for an
inherently beneficial use should be granted. We disagree and affirm.
I.
In August 2017, Sunrise applied to the Board seeking approval to develop
a multi-unit assisted living facility in Princeton. Thereafter, Sunrise elected to
bifurcate its application, by first seeking approval of the use and bulk variances,
and then the site plan.
Sunrise proposed to build the facility on four-and-a-half acres of vacant
land (Property). The Property is bordered by a shopping mall, office buildings,
and residential homes, and it constitutes the only vacant lot in Princeton's
Residential Senior Market zoning district (R-SM zone).
The R-SM zone permits housing for people sixty-two years of age and
older. The zone allows residential clusters not exceeding eleven units per acre
with minimum tract setbacks. The zone also has an affordable housing
component, requiring that twenty percent of the for-sale units and fifteen percent
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of the rental units be set aside for affordable housing. The Princeton Master
Plan identifies the Property as suitable for senior housing because it is adjacent
to the Princeton Shopping Center and has access to public transportation,
shopping, and medical offices.
An assisted living facility is not a permitted use in the R-SM zone.
Accordingly, Sunrise sought use and bulk variances. Initially, Sunrise proposed
to build a three-story building, consisting of over 82,000 square feet and 89 units
holding 100 beds. While that application was pending, Sunrise offered to revise
its plans, proposing two alternatives, including a two-story senior assisted living
facility, consisting of 82,000 square feet and 84 units.
On April 25, 2018, May 23, 2018, and October 16, 2018, the Board
conducted three hearings on Sunrise's application. Sunrise presented evidence
and testimony from its senior vice president of development and investments
and several experts, including a consultant on the facility's design, an architect,
a planner, and a traffic engineer. The Board also received evidence and heard
testimony from the Township's planner, the Township zoning officer, and the
municipal traffic consultant. Furthermore, the Board heard and received
comments from the public, many of whom opposed the application.
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As part of its presentation, Sunrise submitted that there was a substantial
need for a senior assisted living facility in Princeton. It analyzed a three-and-a-
half-mile radius around the Property and offered testimony that there were over
850 income-qualified senior households and over 4000 income-qualified
caregiver households in that area. Sunrise then contended that Princeton had
only one existing assisted living facility with 100 units. Consequently, Sunrise
submitted that the proposed facility would be an inherently beneficial use.
Sunrise also presented testimony that the bulk and density impact on the
surrounding neighborhood could be adequately addressed. In that regard,
Sunrise proposed to do landscaping and contended that the Property was in a
mixed-use area and that the assisted living facility would have a minimal traffic
impact. Sunrise also represented that it was willing to make further revisions to
the design of the building during the site plan review in a continuing effort to
reduce any negative impact on the adjacent residential neighborhood.
After hearing the testimony and reviewing the evidence submitted , the
Board unanimously voted to deny the application. On November 14, 2018, the
Board memorialized its action in a written resolution. The Board accepted that
the proposed assisted living facility would be an inherently beneficial use, which
satisfied the positive criteria for granting a use variance. The Board then applied
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the balancing analysis set forth in Sica v. Board of Adjustment, 127 N.J. 152(1992).
In that regard, the Board found that the magnitude of the public interest
was not as great as submitted by Sunrise. The Board rejected Sunrise's focus on
a three- to five-mile radius around the Property and noted that Mercer County
had eleven existing assisted living facilities and there were fifty-four facilities
in nearby communities. The Board also noted that Princeton had four other
zones that permitted assisted living or nursing homes.
Turning to the detrimental impact, the Board found that the Property is the
only vacant site in the R-SM zone. Thus, the Board found that permitting the
application would "essentially constitute a rezoning of the Property and an
elimination of the R-SM zone." The Board reasoned "that the power to create
and eliminate land use zones lies exclusively with the municipal governing
body." The Board also found that elimination of the R-SM zone "would have a
detrimental impact as it would remove the only vacant site adjacent to the
Princeton Shopping Center for use by active seniors." In comparison, the Board
noted that the residents of the assisted living facility would not benefit from the
Property's unique location because they would be unlikely to leave the facili ty
to use the shopping center.
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Addressing the density and scale of the proposal, the Board found that the
proposed facility would "greatly exceed" the permitted density and floor area
ratio for the zone. Consequently, the Board found "that the Property cannot
accommodate the mass and scale of the proposed building and that the scale of
the building will be incompatible with the surrounding uses." The Board also
found that there would be a negative impact on the existing landscape and
particularly on the existing mature trees on the Property.
Finally, the Board found that there were no conditions that could be
imposed that would effectively eliminate the negative impact. The Board then
balanced the positive criteria against the negative criteria and determined that
granting the use variances would "substantially impair the zone plan" and zoning
ordinance.
In December 2018, Sunrise filed a complaint in lieu of prerogative writs
seeking to reverse the Board's decision and have its application approved. The
trial court conducted a hearing on July 10, 2019. Shortly thereafter, on July 18,
2019, the court dismissed Sunrise's complaint finding that the Board's denial of
the application was not arbitrary, capricious, or unreasonable. The court
explained the reasons for its ruling on the record. On that same day, the trial
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court memorialized its decision in an order of judgment that dismissed Sunrise's
complaint with prejudice. Sunrise now appeals from that judgment.
II.
On appeal, Sunrise argues that the Board correctly found that the proposed
assisted living facility was an inherently beneficial use, but erred in applying
the Sica balancing test. Accordingly, Sunrise argues that the Board failed to
properly evaluate the positive and negative criteria and the Board's rejection of
the application was therefore arbitrary, capricious, and unreasonable. We
disagree.
Zoning board decisions "enjoy a presumption of validity, and a court may
not substitute its judgment for that of the board unless there has been a clear
abuse of discretion." Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (citing
Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002)).
Consequently, "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.
Zoning Bd. of Adjustment, 160 N.J. 41, 58-59 (1999).
The party challenging the action of a zoning board carries the burden of
demonstrating that the board acted arbitrarily, capriciously, or unreasonably.
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Dunbar Homes, Inc. v. Zoning Bd. of Adjustment, 233 N.J. 546, 558 (2018)
(quoting Grabowsky v. Twp. of Montclair, 221 N.J. 536, 551 (2015)); Ten Stary
Dom P'ship v. Mauro, 216 N.J. 16, 33 (2013) (citing Smart SMR of N.Y., Inc.
v. Bd. of Adjustment, 152 N.J. 309, 327 (1998)). "A board acts arbitrarily,
capriciously, or unreasonably if its findings of fact in support of a grant or denial
of a variance are not supported by the record, or if it usurps power reserved to
the municipal governing body or another duly authorized municipal official."
Ten Stary Dom P'ship, 216 N.J. at 33 (citations omitted). "Even when doubt is
entertained as to the wisdom of the [board's] action, or as to some part of it,
there can be no judicial declaration of invalidity in the absence of clear abuse of
discretion . . . ." Kramer v. Bd. of Adjustment, 45 N.J. 268, 296-97 (1965)
(citations omitted).
The Legislature has delegated to municipalities the power to regulate local
land use through the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -
163. An application for a use variance is governed by N.J.S.A. 40:55D-70(d),
which allows a variance for "special reasons" if the variance "can be granted
without substantial detriment to the public good and will not substantially impair
the intent and the purpose of the zone plan and zoning ordinance." The "special
reasons" requirement of the statute is referred to as the "positive" criteria for a
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use variance; the requirements that the variance not be detrimental to the public
good and not substantially impair the zone plan and ordinance are referred to as
the "negative" criteria. Smart SMR, 152 N.J. at 323 (quoting Sica, 127 N.J. at
156); Salt & Light Co., Inc. v. Bd. of Adjustment, 423 N.J. Super. 282, 287
(App. Div. 2011).
An "inherently beneficial use" is one "which is universally considered of
value to the community because it fundamentally serves the public good and
promotes the general welfare." N.J.S.A. 40:55D-4. If a proposed use qualifies
as "inherently beneficial," the burden of proof for a use variance is "significantly
lessened" with respect to both the positive and negative criteria. Smart SMR,
152 N.J. at 323. "An inherently beneficial use presumptively satisfies the
positive criteria." Ibid. (citing Burbridge v. Minehill Twp., 117 N.J. 376, 394
(1990)). Moreover, "satisfaction of the negative criteria does not depend on an
enhanced quality of proof." Id. at 323-24 (citing Sica, 127 N.J. at 160-61).
A variance for an inherently beneficial use is evaluated under the standard
set forth in Sica. Advance at Branchburg II, LLC v. Bd. of Adjustment, 433 N.J.
Super. 247, 254 (App. Div. 2013); Salt & Light, 423 N.J. Super. at 287. In Sica,
the Court identified four factors to be balanced:
First, the board should identify the public interest at
stake. . . .
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Second, the [b]oard should identify the
detrimental effect that will ensue from the grant of the
variance. . . .
Third, in some situations, the local board may
reduce the detrimental effect by imposing reasonable
conditions on the use. . . .
Fourth, the [b]oard should then weigh the
positive and negative criteria and determine whether,
on balance, the grant of the variance would cause a
substantial detriment to the public good.
[127 N.J. at 165-66 (citations omitted).]
We review denial of a variance for an inherently beneficial use under the same
standard we review "local land use" decisions generally, reversing them only if
arbitrary, capricious, or unreasonable. Id. at 166-67 (citations omitted).
Here, we discern no abuse of discretion by the Board in its application of
the Sica test. We find nothing arbitrary, capricious, or unreasonable in the denial
of Sunrise's application. The Board expressly stated in its resolution that it was
applying the Sica test and it then properly balanced the factors identified by
Sica.
The Board first identified the public interest at stake. Such an inquiry
involves a recognition that some inherently beneficial uses "are more
compelling than others." Id. at 165. In evaluating Sunrise's application, the
Board accepted that the assisted living facility would be an inherently beneficial
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use. The Board did not accept, however, Sunrise's contentions concerning the
need for an assisted living facility at the Property. In that regard, the Board
expanded the area to be considered and included Mercer County and
communities surrounding Princeton.
Contrary to the arguments of Sunrise, there is nothing arbitrary,
capricious, or unreasonable about that determination. The Board was not
required to accept the opinions offered by Sunrise's experts. Klug v. Planning
Bd., 407 N.J. Super. 1, 13 (App. Div. 2009) (citing El Shaer v. Planning Bd.,
249 N.J. Super. 323, 330 (App. Div. 1991)); Bd. of Educ. v. Zoning Bd. of
Adjustment, 409 N.J. Super. 389, 434 (App. Div. 2009) (citations omitted).
Instead, the Board had the right, as it did here, to consider that expert testimony
but not accept it.
Moreover, in doing so, the Board was not usurping the authority of the
Department of Health, which has statutory authority to determine the need for
an assisted living facility. See N.J.S.A. 26:2H-1 to -26; N.J.A.C. 8:36-2.1.
Instead, the Board was acting appropriately under the MLUL to evaluate the
public interest at stake.
The Board also properly evaluated the second factor in Sica by identifying
"the detrimental effect that will ensue from the grant of the variance[s]." 127
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N.J. at 166. The Board correctly found that granting the use variances would
constitute a "rezoning of the Property" because the entire R-SM zone would be
eliminated.
The Board also found that allowing the assisted living facility would
effectively eliminate the R-SM zone's purpose, which is to provide housing for
active senior citizens. In that regard, the Board noted that the Property was
adjacent to the Princeton Shopping Center, which active senior citizens would
be likely to use, whereas the residents of an assisted living facility would be
unlikely to benefit from the shopping center. The Board also found that the
Property could not accommodate the density and size of the proposed assisted
living facility and that the proposed building would be "incompatible with the
surrounding" area. All those findings of detrimental impact are supported by
substantial credible evidence presented during the hearings before the Board.
Just as importantly, we discern nothing arbitrary, capricious, or unreasonable
concerning the Board's findings and reasoning.
Sunrise argues that the Board effectively abdicated its responsibility when
it pointed out that granting the use variances would function as rezoning. We
do not construe the Board's reasoning and resolution as that narrow. It was
appropriate for the Board to consider the impact on "the zone plan and zoning
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ordinance." N.J.S.A. 40:55D-70(d); see also Twp. of N. Brunswick v. Zoning
Bd. of Adjustment, 378 N.J. Super. 485, 492 (App. Div. 2005) (citing AMG
Assocs. v. Twp. of Springfield, 65 N.J. 101, 109 n.3 (1974)) (holding that when
a "variance pertains to a substantial portion of[,] or an entire zone district, a
board's variance begins to closely resemble zoning, which is the exclusive
province of the municipality"); Victoria Recchia Residential Const., Inc. v.
Zoning Bd. of Adjustment, 338 N.J. Super. 242, 253 (App. Div. 2001) (holding
that a "[z]oning [b]oard may not rezone by variance"). Moreover, as already
discussed, the Board considered more than just the elimination of the R-SM
zone.
Turning to the third factor in the Sica test, the Board found that there were
no conditions that could be imposed to reduce the detrimental impact. Again,
the Board appropriately considered that granting the application would eliminate
the R-SM zone. See Salt & Light, 423 N.J. Super. at 291 n.2 (holding that the
third factor in the Sica test is not applicable when the proposed use would
significantly undermine the zoning plan). The Board also again properly
considered that there were no conditions it could impose to reduce the bulk and
density of the proposal.
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Finally, the Board evaluated the fourth factor in the Sica test by weighing
the positive and negative criteria. We discern nothing arbitrary, capricious, or
unreasonable in the Board's determination that, on balance, granting the
variances would "substantially impair the zone plan . . . and would constitute a
rezoning of the Property."
In short, Sunrise incorrectly argues that the Board did not engage in the
appropriate evaluation. Sunrise's real argument is that it disagrees with the
conclusions the Board reached under the Sica test. Because we find nothing
arbitrary, capricious, or unreasonable in the Board's evaluations, we have no
basis to reverse the Board. Accordingly, we agree with the trial court and affirm
its judgment dismissing Sunrise's complaint with prejudice.
To the extent that we have not discussed Sunrise's remaining arguments,
it is because they are without sufficient merit to warrant discussion in this
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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