Posted by: Patricia Salkin | August 2, 2014

NJ Appeals Court Upholds Variance and Site Plan For Assisted Living Facility

Defendant 175 Paramus Road Real Estate, L.L.C., filed an application for variances and site plan approval with defendant Board of Adjustment of Paramus. The application was for a three-story Alzheimer’s facility for a maximum of 126 residents. The application stated that the building site near the frontage of the property on Paramus Road would be graded and raised above the 100–year floodplain. Because the proposed facility would contain more than fifteen beds, the applicant requested a(d)(3) variance, for deviation from the conditions applicable to a permitted conditional use. On November 29, 2012, the board adopted a twenty-one page resolution implementing and explaining its decision. The resolution reviewed in detail the testimony and evidence presented at the hearing, and it acknowledged the questions and concerns raised by plaintiff Krousos and one other person. The board concluded that the application met the requirements for use, deviation, and height variances under N.J.S.A. 40:55D–70(d)(1), (3), and (6), and for bulk and dimensional variances under N.J.S.A. 40:55D–70(c)(1) and (2). The board approved the variances, design waivers, and site plan, setting forth specific conditions of the approval.

Plaintiffs filed an action in lieu of prerogative writs in the Law Division pursuant to Rule 4:69 to set aside the board’s decision. Their complaint alleged that the proofs were insufficient for the granting of the variances and that the board had exceeded its statutory authority by, rezoning the property to permit the development of a prohibited use. The Law Division affirmed the board’s decision and entered an order on July 12, 2013, dismissing plaintiffs’ complaint with prejudice.

On appeal, plaintiffs argued that the resolution of approval adopted by the board was insufficient and could not sustain the variances that were granted, and that the applicant failed to comply with N.J.S.A. 40:55D–10(b) in that all maps and documents in support of the application were not on file with the board and available for examination by the public at least ten days before the board’s vote of approval on September 20, 2012.

In this case, the property was so spacious compared to the required zoning regulations that it far exceeded the dimensional minimums of the zoning regulations. The court also noted that the public benefit was the much-needed assisted living facility, and the Plaintiff’s failed to show any diminishment in property value. This court therefore found that the board acted within its discretionary authority in concluding that the applicant’s property can accommodate a large assisted living home for persons afflicted with Alzheimer’s disease and the employees and guests who will attend to their needs at the facility.

Krousos v Zoning Board of Adjustment of Borough of Paramus, 2014 WL 3628862 (NJ Sup. Ct. unpub. 6/17/2014)

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