Pond Run Watershed v. Township
| Decision Date | 10 January 2008 |
| Docket Number | No. A-1022-06T1.,A-1022-06T1. |
| Citation | 937 A.2d 334,397 N.J. Super. 335 |
| Parties | POND RUN WATERSHED ASSOCIATION, an unincorporated group of Hamilton Township residents, Ames Hoyt, principal officer, and Ames Hoyt, Individually; David Ardente, Albert and Cindy Britton, James Canterbury, Carl D. Markau and Mary Ann Rieger, Plaintiffs-Appellants, v. TOWNSHIP OF HAMILTON ZONING BOARD OF ADJUSTMENT and Crestwood Construction, LLC, Defendants-Respondents. |
| Court | New Jersey Superior Court |
R. William Potter Princeton, argued the cause for appellants (Potter and Dickson, attorneys; Mr. Potter and Peter D. Dickson, on the brief).
John H. Dumont, Princeton, argued the cause for respondent Township of Hamilton Zoning Board of Adjustment (Dumont & Watson, attorneys; Mr. Dumont, on the brief).
Daniel J. Graziano, Jr., argued the cause for respondent Crestwood Construction, LLC (Daniel J. Graziano & Associates, P.C., attorneys; Mr. Graziano and Sahbra Smook Jacobs, on the brief).
Before Judges LINTNER, SABATINO and ALVAREZ.
The opinion of the court was delivered by
SABATINO, J.A.D.
Plaintiffs, several residents of Hamilton Township ("the Township") and a watershed preservation advocacy group, seek to invalidate numerous use and bulk variances the Township's Zoning Board of Adjustment ("the Board") granted to a developer, Crestwood Construction, LLC ("Crestwood" or "the developer"). The variances authorized Crestwood to build on a 10.9-acre site a mixed-use project, consisting of four buildings with a total of 119 age-restricted apartments, two retail/office buildings, and another building with a 168-seat restaurant. The variances were necessary because the site is located in a research and development zone ("RD zone") that prohibits residential housing and that disallows retail businesses and restaurants except on lots with at least one hundred acres.
The Law Division rejected plaintiffs' challenge to the project in most respects, except that it found that the developer had improperly agreed, as a condition of its variances, to pay a $476,000 subsidy to the Township for the off-site construction of a proposed amphitheatre in a nearby municipal park. Ruling that the $476,000 illegal exaction was only a minor part of the project, the trial court excised that condition and did not require any further public hearings before the Board. Plaintiffs now appeal the trial court's decision on multiple grounds.
Although many of plaintiffs' arguments lack merit, we are persuaded that the variances are flawed in two significant respects. First, the notice of its zoning application that Crestwood published in the newspaper and served upon nearby property-owners was substantively deficient under Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J.Super. 234, 241, 684 A.2d 1005 (App.Div.1996). In accordance with Perlmart, the notice should have specifically alerted neighbors and the public at large that the variances Crestwood sought included approval for a large restaurant with a potential liquor license, going beyond the notice's vague reference that the project included "retail/office units." Second, the developer's bargained-for $476,000 contribution towards an off-site Township recreational facility was a significant, not a minor, part of the development proposal, substantially intended to compensate for the project's complete lack of on-site recreational facilities for the senior citizens who would be living there. Consequently, the matter preferably should have been remanded to the Board for further public consideration after the trial court correctly deemed the developer's negotiated payment an illegal exaction.
Because the project is already partially built, we decline to fashion a comprehensive remedy to address these deficiencies, except that we enjoin further construction of the restaurant at this time pending proper notice to the public of the restaurant proposal and the Board's renewed consideration. We remand the matter to the Law Division for the fuller development of an up-to-date factual record germane to remedial issues, and to clarify the scope of the issues that must be reheard before the Board. After those facts are adduced, the trial court shall exercise its sound discretion to formulate a solution that duly considers the interests of the litigants, affected third parties such as contractors, vendors, and prospective tenants, and the public at large.
The project at issue, known in marketing materials as "Twin Ponds," involves a 10.9-acre L-shaped parcel of land on the east side of Yardville-Hamilton Square Road in Hamilton Township. The property is designated as Section (or Block) 2173, Lots 18, 19, 20 and 21 on the Township's tax maps. The property was formerly used as farmland. At the time of Crestwood's zoning application, the property was vacant and owned by the Diocese of Trenton. The developer, Crestwood, subsequently purchased the property and planned to continue to own it after the project was built.
In its application submitted to the Board in January 2005, Crestwood proposed a "mixed-use active adult community and commercial development" on what is an RD zone. Of the 17,000 square feet proposed as commercial space, a sit-down restaurant would cover 5,000 square feet and the remaining 12,000 square feet would be "dedicated to an even split of office and retail use."
The site would also include four two-story buildings with "age qualified" garden apartments for residents fifty-five and older. Each building would have thirty-two bedroom units. Each apartment would have two parking spaces as required by the local ordinance. The woods in the far eastern portion of the property were to be preserved.
The "boulevard type entrance" for the project would line up directly with Briarwood Drive, a residential subdivision across the street, and would have a landscaped island. The development would be called Twin Ponds because of two artificial ponds to be created on each side of the entrance driveway. The ponds were an aesthetic consideration and would provide only minimal storm water management. The Township's engineers, land use coordinators and other consultants reviewed and commented on Crestwood's application before the Board considered it.
Crestwood applied for two use variances, pursuant to N.J.S.A. 40:55D-70(d), for relief from the use restrictions in the RD zone. One use variance was required because the proposed residential use for the apartments is not permitted in the RD zone. The second use variance was needed because the proposed commercial uses for the 10.9-acre site did not meet the criteria for this size project. By Township ordinance, mixed use developments in the RD zones containing retail uses are permitted only if the minimum total area to be developed is one hundred acres. Hamilton Twp., N.J., Land Dev.Code § 160-80(1)(b)(7)(i) (1979).
At its appearance before the Board, Crestwood also sought preliminary site plan approval of the entire project and final site plan approval of "phase one," consisting of sixty units in the southern residential village. Phase two included the commercial section, and phase three included the other sixty units of garden apartments.
The application sought bulk variances for "front, side, and rear yard setbacks, the distance between the two principal buildings, parking area setbacks from any lot line, [the] minimum buffer area along any common property line in the residential districts, and [a] ground sign setback from the property line." This last variance was sought for a ground-mounted, thirty-square-foot sign to be placed ten feet from the right-of-way. The plan complied with other RD zone requirements, such as building height and maximum impervious surface coverage.
The application also sought several design waivers. One was for a commercial area loading berth, with deliveries to be made during off hours so that truck parking would not conflict with the users of the commercial parking lot. Another design waiver was for the size of the garden apartments. The third design waiver sought was in connection with the distance between the ground level openings on each apartment building.
According to the project's architect, the apartment buildings were designed to have The apartment buildings were to be connected by a shared vestibule. The residents would have access to the secure lobby level from all parking areas. Each of the two-bedroom residential units would be approximately the same size, 45 by 24 feet, totalling 1100 square feet.
The commercial portion of the project included three sixty-foot deep, one-story buildings with decorative dormers or cupolas. The HVAC systems would be either "wall type units" or outside condensers "that could be easily landscaped and screened."
The plan proposed that fifty-one percent of the total area would be impervious cover, which is less than the fifty-five percent maximum limit for RD zones. The plan also satisfied the ordinance's five percent landscaping requirement in parking areas and the ordinance's technical criteria for landscaping. Further buffers would be added along the property lines and the pondscape plan would be supplemented with additional plantings.
The plan also included widening Yardville-Hamilton Square Road to sixty-four feet, pursuant to the Township engineer's requirements. The right-of-way dedication would be increased to ten feet. In accordance with comments from the Township's experts, Crestwood agreed, to the extent possible, to minimize the crossings at Yardville-Hamilton Square Road. It also sought to eliminate one of the storm sewers and shift one of the water crossings out of the intersection.
On April 2, 2005, Crestwood mailed notices of the hearing on its application to the listed owners of property located within...
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