In AvalonBay Communities, Inc. v. Township of South Brunswick Zoning Board of Adjustment, the Appellate Division held that the South Brunswick Zoning Board of Adjustment (Board) properly denied a developer’s application for a use variance. The appeals court agreed that AvalonBay Communities, Inc. (Avalon Bay) had failed to provide any evidence that non-age restricted housing was “particularly suitable” for the site and had not demonstrated that it would not impair the intent of the township’s zoning plan. 
Facts of the Case
Avalon Bay ownsvacant property in South Brunswick, which is located in a zoning district that has been designated an age-restricted residential community (ARRC). The ARRC district permits multi-family residential uses, but the residents in such district must be fifty-five years of age or older. The developer sought to construct non-age restricted rental housing on the property, including four multi-family apartment buildings and two townhomes, yielding a total of 212 living units. The majority of the units would have one or two bedrooms, but those units built to meet affordable housing requirements would have three bedrooms. Plaintiff has proposed that fifteen percent of its units be set aside as affordable housing for low and moderate-income individuals.
AvalonBay submitted an application to the Board pursuant to N.J.S.A. 40:55D-70(d)(1)seeking a variance from the requirement the residents of its housing be over the age of fifty-five. After two days of hearings, the Board denied the plaintiff’s application, concluding that the testimony of the plaintiff’s experts failed to provide any evidence to support the premise that non-age restricted housing was particularly suitable for the proposed site. In addition, the Board found the plaintiff failed to meet the negative criteria, pointing out the purpose of the ARRC zone, as expressly stated in the applicable zoning ordinance, which states:
The intent and purpose of the ARRC zone is to provide realistic opportunities for construction of low—and moderate-income housing for senior citizens not only to implement the township housing element and fair-share plan which provide residential dwellings to be occupied by persons 55 years of age or older, as further defined and subject to the exceptions in and under the U.S. Fair Housing Act, as amended, such dwellings to be of a type which promotes the efficient delivery of municipal services, access to mass transportation, the provision of recreation facilities by the developer for the sole use by the residents and their guests, and to be designed specifically for adult citizens.
Because the purpose of the zone is to provide senior housing that meets the standards in the ordinance, the Board concluded plaintiff’s proposed use is “an affront” to the intent of the ordinance. The Board also pointed out the 2001 master plan and a 2007 reexamination report of the master plan stated there is to be age-restricted housing in the township.
AvalonBay filed suit, and the trial court reversed the Board’s decision. It concluded that the Board rejected plaintiff’s application for reasons related to “site plan issues” and failed to consider whether plaintiff’s proposed use satisfied the positive and negative criteria. It went on to hold that the plaintiff satisfied the positive and negative criteria, entitling it to a “D1” use variance. According to the court, “The site is particularly suited for the use in that multifamily units are permitted…Relative to the negative criteria, if the application were approved and constructed, there would be no visible difference between it and the age-restricted development. The only recognizable difference would be in the age of the occupants.”
Appellate Division’s Decision
The Appellate Division reversed, concluding that the Board’s decision was not arbitrary, capricious or unreasonable. “The record supports the Board’s finding that plaintiff failed to establish the positive and negative criteria for the issuance of the use variance; namely, that special reasons exist for the variance and that the variance 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 court held.
In reaching its decision, the Appellate Division further held that the plaintiff clearly failed to carry its burden of showing the proposed use will not substantially impair the intent and the purpose of the zone plan and zoning ordinance. As the court explained:
In light of the pertinent language in the master plan, which makes clear the township seeks to provide affordable housing for low and moderate income senior citizens, and the language in the subject zoning ordinance, which states the permitted uses are limited to age-restricted housing for seniors, plaintiff clearly failed to carry its burden of showing the proposed use will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.
The court further noted that AvalonBay’s proposal failed to satisfy the township’s requirements for senior housing. The court wrote:
While fifteen percent of plaintiff’s proposed housing would be set aside for affordable housing and thus eligible seniors could live in such housing, eighty-five percent of the housing would not be affordable. The proposed use is predominantly inconsistent with what the master plan and zoning ordinance envision for this particular district—senior housing for low and moderate income seniors. In addition, plaintiff failed to proffer evidence that any of its proposed housing would provide the amenities for seniors specifically mandated in the ordinance, such as access to mass transportation or recreation facilities designed specifically for adult citizens.
The appeals court also rejected Avalon’s argument that age-restricted housing is no longer in demand in the township. “If a party considers a zoning ordinance outdated or arbitrary, it may go before a municipality’s governing body and seek an amendment to the zoning ordinance,” the court explained. “In fact, if, as plaintiff alleges here, the alleged deficiency is common to all or other areas of the municipality, the appropriate remedy is to seek relief from the governing body.”
For more information about the decision in AvalonBay Communities, Inc. v. Township of South Brunswick Zoning Board of Adjustment or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.