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(NOTE: The status of this decision is unpublished.)


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5340-03T35340-03T3

AAHG DEVELOPMENT CORPORATION, a

New Jersey Corporation, and Q.R.P.

LAND II, L.P., a New Jersey limited

partnership,

Plaintiffs-Respondents,

v.

WASHINGTON TOWNSHIP ZONING BOARD OF

ADJUSTMENT,

Defendant-Appellant,

and

TOWNSHIP OF WASHINGTON,

Defendant.

_______________________________________


Submitted October 26, 2005 - Decided

Before Judges Parker, Grall and Sapp-Peterson.

On appeal from Superior Court of New Jersey,

Law Division, Gloucester County, L-1462-03.

Timothy D. Scaffidi, attorney for appellant.

Ballard, Spahr, Andrews & Ingersoll,

attorneys for respondents (William F.

Hyland, Jr., of counsel; Michelle A.

Ducellier, on the brief).

PER CURIAM

Defendant Washington Township Zoning Board of Adjustment appeals from an order entered by the Law Division in this action in lieu of prerogative writs filed by plaintiffs AAGH Development Corporation and Q.R.P. Land II, L.P. Judge Stanger reversed the Board's denial of a use variance, granted that variance and remanded for consideration of plaintiffs' site plan. We affirm substantially for the reasons stated by Judge Stanger in his written decision of March 8, 2004.

Q.R.P. owns property known as 3152 Glassboro-Crosskeys Road in Washington Township. It is located in the Township's Highway Commercial Zone. In 2000, in accordance with an approved site plan, Q.R.P. completed an assisted living facility for elderly residents, which is a permitted use in the Highway Commercial Zone. When Q.R.P.'s plans to transfer the completed facility to the Visiting Nurse Association did not materialize, AAHG agreed to purchase the facility with the goal of converting it from one with fifty-nine institutional living units to one with forty residential apartments. Under AAHG's plan, thirty of the apartments were dedicated for use by persons fifty-five years of age and older and ten for use by developmentally disabled persons.

In April 2003 AAHG applied for a use variance. A use variance was required only for the ten units dedicated to housing the developmentally disabled. As the Board concedes, the thirty age-restricted units are permitted uses within the zone and require no variance. The Board considered AAHG's application at hearings held on May 12 and June 9, 2003. By resolution dated July 13, 2003, the Board denied the variance.

Plaintiffs filed this complaint in lieu of prerogative writs on September 17, 2003. Plaintiff sought reversal of the Board's denial of the use variance (count one); a declaratory judgment finding that housing for the developmentally disabled is a permitted use of plaintiffs' property (count two); and a declaration that Washington Township's Wellhead Protection Ordinance was invalid on its face and as applied to plaintiffs' property (count five).

In addition to acknowledging that housing for persons over the age of fifty-five is a permitted use, the Board conceded that AAHG's request for a variance to permit housing for the developmentally disabled sought approval for an "inherently beneficial use" of the property. On March 8, 2004, Judge Stanger found that the Board's actions "were arbitrary and capricious," reversed the denial and ordered the approval of the use variance. The order was entered on March 22, 2004. On May 27, 2004, Judge Stanger certified that order as final pursuant to R. 4:42-2, and this appeal followed.

The Board raises the following issues on appeal:

I. DEFENDANT ZBA ACTED WITHIN THE SCOPE OF

ITS DISCRETIONARY AUTHORITY PURSUANT TO

THE MUNICIPAL LAND USE LAW IN DENYING

PLAINTIFF'S REQUESTED USE VARIANCE.

II. IN THE ALTERNATIVE, THE TRIAL COURT

SHOULD HAVE REMANDED THIS MATTER TO THE

ZBA FOR MORE DETAILED FINDINGS AND

CONCLUSIONS ON THE REASONS FOR THE

DENIAL OF THE APPLICATION.

Our review of the record in light of the issues presented convinces us that Judge Stanger's order is based on findings of fact that are adequately supported by the evidence and that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A), (E). The judge's comprehensive opinion of March 8, 2004, addresses the evidence and legal issues relevant to each of the seven reasons the Board offered in its resolution explaining the denial of the variance for this inherently beneficial use.


Affirmed.

Plaintiffs also alleged violations of constitutional and statutory rights afforded to it and its prospective residents (counts three and four) and inverse condemnation (count six). By order dated January 9, 2004, Judge Stanger bifurcated the proceedings, deferring consideration of these claims.

Because the bifurcated claims were not resolved at the time this appeal was filed, the order is not final and was improvidently certified as such by the trial court. Because the claims are independent, this matter is fully briefed and in order to avoid further delay in utilization of the subject property, we grant leave to appeal nunc pro tunc. R. 2:4-4(b)(2).

(continued)

(continued)

5

A-5340-03T3

December 6, 2005




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