Heritage At Towne Lake Llc v. Planning Bd. of The Bor. of Sayreville
| Decision Date | 23 July 2010 |
| Citation | 26 A.3d 1071,422 N.J.Super. 75 |
| Parties | HERITAGE AT TOWNE LAKE, LLC, Plaintiff,v.PLANNING BOARD OF the BOROUGH OF SAYREVILLE, Defendant. |
| Court | New Jersey Court of Chancery |
OPINION TEXT STARTS HERE
Stephen E. Barcan and Donna M. Jennings, Woodbridge, for plaintiff (Wilentz, Goldman & Spitzer, attorneys).James P. Hoebich for defendant (Cahill, Branciforte & Hoebich, attorneys).HURLEY, J.S.C.
Plaintiff, Heritage at Towne Lake, LLC (“Heritage”), is the owner of premises designated as Block 136.15, Lot 76 as shown on the official tax map of the Borough of Sayreville (“Property”). The Planning Board of the Borough of Sayreville (“Board”) identifies the property in its resolution as lot 76. Heritage's site plan identifies the lot as 75, as does Heritage's application for conversion dated October 27, 2009, signed by Heritage's general counsel, Ronald S. Blumstein. The tax designation is not critical to this decision. The property is part of the Towne Lake major subdivision, [R7 PRD], which was approved by defendant in 1998, and which created 260 single family lots. In March 2005, Heritage amended its plan to permit the construction of 200 age restricted residential units utilizing Sayreville's senior citizen housing density bonus. In November 2007, Heritage, based on its March 2005 approval, applied for and received amended preliminary and final site plan approval to construct fewer units due to economic market conditions. Consequently, the Board approved the scaled down project to 184 age-restricted, multifamily residential units.
In February 2010, Heritage filed its application to convert the age-restricted units to nonage restricted units in accordance with N.J.S.A. 45:22A–46.3 to –46.16 (“Conversion Statute”). The conversion application sought approval for the construction of seven one bedroom units; 170 two bedroom units; and seven three bedroom units. In accordance with the conversion statute, twenty percent of the residential units are to be allocated for affordable housing under Council on Affordable Housing (“COAH”) regulations.
The Board conducted public hearings on Heritage's conversion application on February 3, 2010, at which Jason P. Kaplan, a principal of Heritage, testified. He testified that there is no market for senior citizen housing at this time. His opinion was based upon his market studies on age restricted housing in Sayreville as well as the surrounding municipalities. He also indicated that Heritage is currently unable to secure construction financing because of the lack of a market for senior housing. Kaplan described the amendment to the plan indicating that no physical changes to any structure is proposed. The building footprint will be the same, and the building elevations will be the same. The only change proposed is to the interior walls of the buildings; this is to make the three bedroom units a little bigger and the one bedroom units a little smaller. The two bedroom units are to remain the same.
William T. Wentzien, a New Jersey licensed professional engineer, also testified on behalf of Heritage's conversion application. He described the amendment to the site plan. He indicated that the only change contemplated is to the recreational area. As originally proposed, the plan provided for three bocce courts. The conversion plan eliminates the bocce courts and replaces them with approximately 2000 square feet of passive recreational space. The previously approved clubhouse and pool are to remain unchanged. He also confirmed Kaplan's testimony that no other physical changes to the site plan are proposed. Water and sewer are available to the site, and the allocated capacity for each is not impacted by the conversion.
Karl A. Pehnke, a New Jersey licensed professional engineer, was presented to the Board by Heritage as an expert in traffic engineering. Pehnke prepared an updated traffic assessment to account for the conversion from age-restricted to non-age-restricted residential development. His overall conclusion was that there is no significant change to the traffic patterns. He did confirm that a traffic signal, a condition of approval of the previous application, is still needed and will be constructed. He also testified that the previous plan provided for 368 parking spaces, and that the residential site improvement standards (RSIS), based upon the proposed bedroom mix, requires 367 parking spaces. Therefore, the conversion plan satisfies the RSI standards.
Paul Phillips, a licensed professional planner, was the last to testify for Heritage on behalf of the conversion application. Phillips addressed the recreational amenities. He indicated that over ninety-five percent of the units are to be one and two bedroom units, which are designed principally toward young professionals. Acknowledging that there will be an increase in children, he suggested that very few children are anticipated based upon the bedroom distribution proposed. He also noted that bocce courts are recognized as an amenity for the age-restricted class. Phillips also opined that the conversion to nonage-restricted residential development would not have a negative impact on the public good or on the zone plan. He based his opinion essentially upon the fact that no physical changes are proposed. Buffers remain the same; access to and from the property remains the same; and traffic impact is essentially the same. He indicated that the conversion statute recognizes that the conversion is deemed to be a permitted use, and therefore there is no impact on the zone plan. He stated that the only recognizable change is the elimination of the bocce courts, which is generally not provided in non-age-restricted developments.
At the conclusion of the public hearing, the Board adopted a resolution denying the conversion application. The Board adopted its memorializing resolution on March 17, 2010. Heritage now brings this action in lieu of prerogative writs seeking an order from this court reversing the Board's denial and granting the conversion to non-age-restricted housing.
The Legislature has vested the approving board with discretion by requiring the conversion applicant to prove that the conversion can be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning ordinance. The foregoing is the same criteria contained in N.J.S.A. 40:55D–70, generally referred to as the negative criteria. Once the conversion applicant presents its proofs to satisfy the negative criteria, the approving board, although not having a burden of proof, must set forth in its resolution valid and supportable reasons for granting or denying the application.
Pursuant to the terms of the conversion statute, N.J.S.A. 45:22A–46.13(b), this court is to examine the record below to determine if the Board's denial was reasonable. The decision on this appeal must resolve two questions: Have the statutory factors contained in the conversion statute been met, and if so was the Board's denial unreasonable as to mandate a reversal by this court? If the Board's decision is without reason or for the wrong reason, the decision is unreasonable. This court finds that Heritage met its burden relative to the statutory requirements of N.J.S.A. 45:22A–46.6(b), and that the Board's denial of the conversion application was unreasonable.
In its resolution of denial, the Board advanced the following relevant conclusions:
“3. That the applicant failed to provide the Planning Board with sufficient information to confirm its ability to develop the site in accordance (with) principles of sound planning;
4. That the proposed conversion is inconsistent with the Borough's Master Plan;
5. That the applicant, in its previous Resolutions of approval, took advantage of, and utilized, density bonus benefits not typically contained in the Borough's Ordinance. Therefore, to grant the conversion would unilaterally increase permissible density, be violative of, and skirt, the requirements of the previous Resolutions and the Ordinance;
6. That one of the specific goals of the Borough's Master Plan calls for the construction of housing which addresses the needs of senior citizens. There continues to be a need for age restricted housing in the Borough and an objective of the Borough's Master Plan;
...
8. That the applicant failed to provide the Planning Board with sufficient information or analysis of its recreational component ...; ...
10. That, for the foregoing reasons, the Applicant failed, after applying the Sica v. Board of Adjustment of Wall balancing test, to prove that there would be no substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance, as required under N.J.S.A. 45:22A–46.6(c); ...”
The conversion statute sets forth the requirements for a conversion. N.J.S.A. 45:22A–46.6(b) provides:
“Applications seeking amended approval for a converted development shall include documentation that all of the following site improvement and infrastructure requirements have been met;
(1) the site meets the Residential Site Improvement Standards parking requirement for the residential land uses in a converted development as established pursuant to N.J.A.C. 5:21–4.14 through –4.16;
(2) the recreation improvements and other amenities to be constructed on the site have been revised, as needed, to meet the needs of a converted development;
(3) the water supply system is adequate, as determined pursuant to N.J.A.C. 5:21–5.1, to meet the needs of a converted development;
(4) the capacity of the sanitary sewer system is adequate to meet the projected flow requirements of a converted development pursuant to N.J.A.C. 7:14A–23.3;
(5) if additional water supply or sewer capacity is needed and the developer is unable to obtain additional supply or capacity, the number of dwelling units in the development...
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