Court tells board to try again on project decision

Written by Alex Davis Wednesday, 21 September 2011 11:59

Ruling: 90-unit proposal to get fresh hearing

MIDDLE TOWNSHIP – The Appellate Division of the Superior Court has told the township zoning board to reconsider granting variances to a commercial developer that wants to build a 90-unit affordable housing project.

In a Sept. 9 decision, the Appellate Division reversed a decision by a trial court that kept upheld the zoning board’s denial of variances to Conifer Realty LLC. But the same court decision says that variances should be granted sparingly.

The company, headquartered in of Rochester, N.Y., had sought use and bulk variances to construct two-story townhomes and one-story flats on 9.6 acres in Cape May Court House.

Neither Victoria Steffen, the attorney for the township’s planning and zoning boards, nor Charles M. Lewis, Conifer’s vice president of development in New Jersey and Pennsylvania, immediately returned calls for comment.

The Conifer property is on the west side of Railroad Avenue, just north of the township public works building in Cape May Court House.

The homes were proposed to be energy efficient, with integrated solar energy, and a private balcony or porch would be attached to the units.

The zoning board shot down the company’s plans in August 2009, because, in part, the project would impact the environment, according to a Sept. 9 court decision. Bordering the land on three sides is the Cape May National Wildlife Refuge, an area that is home to hundreds of animals, including birds, reptiles, amphibians, fish and shellfish.

Environmental groups, including the American Littoral Society, spoke out against the proposal. And that’s one of the problems, says the court decision, and is one of the reasons the appellate court turned back the trial court’s decision.

Those from environmental groups who spoke did so as a matter of opinion, not fact, the Appellate Division found. But the board used those opinions in its decision as though they were fact.

"Prudence dictates that zoning boards root their findings in substantiated proofs rather than unsupported allegations,” the decision reads.

The zoning board also denied variances because the project surpassed the per-acre density allowed for single-family and two-family homes.

The board had been also concerned over the affordable housing project bringing heavy traffic to Mechanic Street.

The company was looking for variances to increase the units per acre that could be constructed;  increase the height limit of the buildings; decrease the open space requirements for the units; permit an increase in the size of the planned cul-de-sac; allow the proposed parking lot to be closer to the buildings than required under the township code; allow the entrance to the complex parking lot to be less than the requisite 100 feet from the next intersecting street; permit sidewalks adjacent to the parking curb; and reduce the number of driveways connected to the property, according to the court decision.

Conifer Realty said the variances should be granted because the proposed development would fall in line with the township’s need for more than 700 affordable housing units under its state obligation through the Council on Affordable Housing, or COAH, and the housing would be near Cape May Court House shopping districts as well.

The court decision reads, “It is well-settled that variances should be granted sparingly and with great caution.”

A project’s positives and negatives must also be weighed, the Appellate Division’s decision says.

“Affordable housing developments have been described as inherently beneficial uses in a variety of circumstances,” according to the decision.

The board members had indicated that the project would not be a beneficial use because it was to be built by a commercial developer, according to the decision. But just because Conifer is a commercial developer doesn’t mean the land’s use would not be a benefit, the court ruled.

“The focus of the inquiry is whether the proposal furthers the general welfare, not whether the undertaking is one that is not-for-profit or a commercial enterprise,” the court decision reads.

The zoning board must also determine if the development would harm the neighborhood’s character.

The project was also part of the township’s December 2008 housing element and fair share plan, a document which, in part, lays out plans for affordable housing. With the fair share plan, the court decision reads, leads one to believe the planning board had no immediate concern with density in Conifer’s proposal. The planning board submitted the fair share plan.

“The Board's dismissive treatment of its representations in its Fair Share Plan bespeaks a cavalier approach to its affordable housing obligation, which we cannot ignore,” the decision reads.

This summer, Gov. Chris Christie eliminated COAH, putting its duties under the director of the state Department of Community Affairs.