                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5717-18T2

SUNRISE DEVELOPMENT, INC.,

         Plaintiff-Appellant,

v.

PRINCETON ZONING BOARD
OF ADJUSTMENT,

     Defendant-Respondent.
_____________________________

                   Argued telephonically March 24, 2020 –
                   Decided June 24, 2020

                   Before Judges Fisher, Gilson and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Mercer County, Docket No. L-2518-18.

                   Matthew Nicholas Fiorovanti argued the cause for
                   appellant (Giordano Halleran & Ciesla, PC, attorneys;
                   Matthew Nicholas Fiorovanti and Paul H. Schneider, on
                   the briefs).

                   Karen L. Cayci argued the cause for respondent.

PER CURIAM
      Plaintiff Sunrise Development, Inc. (Sunrise) appeals from a judgment

dismissing its complaint in lieu of prerogative writs, which sought to reverse the

denial of its application to the Princeton Zoning Board of Adjustment (Board)

for use and bulk variances to build an assisted living facility. Sunrise argues

that the Board failed to properly apply the test to determine if a variance for an

inherently beneficial use should be granted. We disagree and affirm.

                                        I.

      In August 2017, Sunrise applied to the Board seeking approval to develop

a multi-unit assisted living facility in Princeton. Thereafter, Sunrise elected to

bifurcate its application, by first seeking approval of the use and bulk variances,

and then the site plan.

      Sunrise proposed to build the facility on four-and-a-half acres of vacant

land (Property). The Property is bordered by a shopping mall, office buildings,

and residential homes, and it constitutes the only vacant lot in Princeton's

Residential Senior Market zoning district (R-SM zone).

      The R-SM zone permits housing for people sixty-two years of age and

older. The zone allows residential clusters not exceeding eleven units per acre

with minimum tract setbacks.        The zone also has an affordable housing

component, requiring that twenty percent of the for-sale units and fifteen percent


                                                                          A-5717-18T2
                                        2
of the rental units be set aside for affordable housing. The Princeton Master

Plan identifies the Property as suitable for senior housing because it is adjacent

to the Princeton Shopping Center and has access to public transportation,

shopping, and medical offices.

      An assisted living facility is not a permitted use in the R-SM zone.

Accordingly, Sunrise sought use and bulk variances. Initially, Sunrise proposed

to build a three-story building, consisting of over 82,000 square feet and 89 units

holding 100 beds. While that application was pending, Sunrise offered to revise

its plans, proposing two alternatives, including a two-story senior assisted living

facility, consisting of 82,000 square feet and 84 units.

      On April 25, 2018, May 23, 2018, and October 16, 2018, the Board

conducted three hearings on Sunrise's application. Sunrise presented evidence

and testimony from its senior vice president of development and investments

and several experts, including a consultant on the facility's design, an architect,

a planner, and a traffic engineer. The Board also received evidence and heard

testimony from the Township's planner, the Township zoning officer, and the

municipal traffic consultant.     Furthermore, the Board heard and received

comments from the public, many of whom opposed the application.




                                                                          A-5717-18T2
                                        3
      As part of its presentation, Sunrise submitted that there was a substantial

need for a senior assisted living facility in Princeton. It analyzed a three-and-a-

half-mile radius around the Property and offered testimony that there were over

850 income-qualified senior households and over 4000 income-qualified

caregiver households in that area. Sunrise then contended that Princeton had

only one existing assisted living facility with 100 units. Consequently, Sunrise

submitted that the proposed facility would be an inherently beneficial use.

      Sunrise also presented testimony that the bulk and density impact on the

surrounding neighborhood could be adequately addressed.           In that regard,

Sunrise proposed to do landscaping and contended that the Property was in a

mixed-use area and that the assisted living facility would have a minimal traffic

impact. Sunrise also represented that it was willing to make further revisions to

the design of the building during the site plan review in a continuing effort to

reduce any negative impact on the adjacent residential neighborhood.

      After hearing the testimony and reviewing the evidence submitted , the

Board unanimously voted to deny the application. On November 14, 2018, the

Board memorialized its action in a written resolution. The Board accepted that

the proposed assisted living facility would be an inherently beneficial use, which

satisfied the positive criteria for granting a use variance. The Board then applied


                                                                          A-5717-18T2
                                        4
the balancing analysis set forth in Sica v. Board of Adjustment, 127 N.J. 152

(1992).

      In that regard, the Board found that the magnitude of the public interest

was not as great as submitted by Sunrise. The Board rejected Sunrise's focus on

a three- to five-mile radius around the Property and noted that Mercer County

had eleven existing assisted living facilities and there were fifty-four facilities

in nearby communities. The Board also noted that Princeton had four other

zones that permitted assisted living or nursing homes.

      Turning to the detrimental impact, the Board found that the Property is the

only vacant site in the R-SM zone. Thus, the Board found that permitting the

application would "essentially constitute a rezoning of the Property and an

elimination of the R-SM zone." The Board reasoned "that the power to create

and eliminate land use zones lies exclusively with the municipal governing

body." The Board also found that elimination of the R-SM zone "would have a

detrimental impact as it would remove the only vacant site adjacent to the

Princeton Shopping Center for use by active seniors." In comparison, the Board

noted that the residents of the assisted living facility would not benefit from the

Property's unique location because they would be unlikely to leave the facili ty

to use the shopping center.


                                                                          A-5717-18T2
                                        5
      Addressing the density and scale of the proposal, the Board found that the

proposed facility would "greatly exceed" the permitted density and floor area

ratio for the zone. Consequently, the Board found "that the Property cannot

accommodate the mass and scale of the proposed building and that the scale of

the building will be incompatible with the surrounding uses." The Board also

found that there would be a negative impact on the existing landscape and

particularly on the existing mature trees on the Property.

      Finally, the Board found that there were no conditions that could be

imposed that would effectively eliminate the negative impact. The Board then

balanced the positive criteria against the negative criteria and determined that

granting the use variances would "substantially impair the zone plan" and zoning

ordinance.

      In December 2018, Sunrise filed a complaint in lieu of prerogative writs

seeking to reverse the Board's decision and have its application approved. The

trial court conducted a hearing on July 10, 2019. Shortly thereafter, on July 18,

2019, the court dismissed Sunrise's complaint finding that the Board's denial of

the application was not arbitrary, capricious, or unreasonable.       The court

explained the reasons for its ruling on the record. On that same day, the trial




                                                                        A-5717-18T2
                                        6
court memorialized its decision in an order of judgment that dismissed Sunrise's

complaint with prejudice. Sunrise now appeals from that judgment.

                                       II.

      On appeal, Sunrise argues that the Board correctly found that the proposed

assisted living facility was an inherently beneficial use, but erred in applying

the Sica balancing test. Accordingly, Sunrise argues that the Board failed to

properly evaluate the positive and negative criteria and the Board's rejection of

the application was therefore arbitrary, capricious, and unreasonable.         We

disagree.

      Zoning board decisions "enjoy a presumption of validity, and a court may

not substitute its judgment for that of the board unless there has been a clear

abuse of discretion." Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (citing

Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002)).

Consequently, "courts ordinarily should not disturb the discretionary decisions

of local boards that are supported by substantial evidence in the record and

reflect a correct application of the relevant principles of land use law." Lang v.

Zoning Bd. of Adjustment, 160 N.J. 41, 58-59 (1999).

      The party challenging the action of a zoning board carries the burden of

demonstrating that the board acted arbitrarily, capriciously, or unreasonably.


                                                                         A-5717-18T2
                                        7
Dunbar Homes, Inc. v. Zoning Bd. of Adjustment, 233 N.J. 546, 558 (2018)

(quoting Grabowsky v. Twp. of Montclair, 221 N.J. 536, 551 (2015)); Ten Stary

Dom P'ship v. Mauro, 216 N.J. 16, 33 (2013) (citing Smart SMR of N.Y., Inc.

v. Bd. of Adjustment, 152 N.J. 309, 327 (1998)). "A board acts arbitrarily,

capriciously, or unreasonably if its findings of fact in support of a grant or denial

of a variance are not supported by the record, or if it usurps power reserved to

the municipal governing body or another duly authorized municipal official."

Ten Stary Dom P'ship, 216 N.J. at 33 (citations omitted). "Even when doubt is

entertained as to the wisdom of the [board's] action, or as to some part of it,

there can be no judicial declaration of invalidity in the absence of clear abuse of

discretion . . . ." Kramer v. Bd. of Adjustment, 45 N.J. 268, 296-97 (1965)

(citations omitted).

      The Legislature has delegated to municipalities the power to regulate local

land use through the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -

163. An application for a use variance is governed by N.J.S.A. 40:55D-70(d),

which allows a variance for "special reasons" if the variance "can be granted

without substantial detriment to the public good and will not substantially impair

the intent and the purpose of the zone plan and zoning ordinance." The "special

reasons" requirement of the statute is referred to as the "positive" criteria for a


                                                                            A-5717-18T2
                                         8
use variance; the requirements that the variance not be detrimental to the public

good and not substantially impair the zone plan and ordinance are referred to as

the "negative" criteria. Smart SMR, 152 N.J. at 323 (quoting Sica, 127 N.J. at

156); Salt & Light Co., Inc. v. Bd. of Adjustment, 423 N.J. Super. 282, 287

(App. Div. 2011).

      An "inherently beneficial use" is one "which is universally considered of

value to the community because it fundamentally serves the public good and

promotes the general welfare." N.J.S.A. 40:55D-4. If a proposed use qualifies

as "inherently beneficial," the burden of proof for a use variance is "significantly

lessened" with respect to both the positive and negative criteria. Smart SMR,

152 N.J. at 323. "An inherently beneficial use presumptively satisfies the

positive criteria." Ibid. (citing Burbridge v. Minehill Twp., 117 N.J. 376, 394

(1990)). Moreover, "satisfaction of the negative criteria does not depend on an

enhanced quality of proof." Id. at 323-24 (citing Sica, 127 N.J. at 160-61).

      A variance for an inherently beneficial use is evaluated under the standard

set forth in Sica. Advance at Branchburg II, LLC v. Bd. of Adjustment, 433 N.J.

Super. 247, 254 (App. Div. 2013); Salt & Light, 423 N.J. Super. at 287. In Sica,

the Court identified four factors to be balanced:

            First, the board should identify the public interest at
            stake. . . .

                                                                           A-5717-18T2
                                         9
                    Second, the [b]oard should identify the
              detrimental effect that will ensue from the grant of the
              variance. . . .

                    Third, in some situations, the local board may
              reduce the detrimental effect by imposing reasonable
              conditions on the use. . . .

                    Fourth, the [b]oard should then weigh the
              positive and negative criteria and determine whether,
              on balance, the grant of the variance would cause a
              substantial detriment to the public good.

              [127 N.J. at 165-66 (citations omitted).]

We review denial of a variance for an inherently beneficial use under the same

standard we review "local land use" decisions generally, reversing them only if

arbitrary, capricious, or unreasonable. Id. at 166-67 (citations omitted).

        Here, we discern no abuse of discretion by the Board in its application of

the Sica test. We find nothing arbitrary, capricious, or unreasonable in the denial

of Sunrise's application. The Board expressly stated in its resolution that it was

applying the Sica test and it then properly balanced the factors identified by

Sica.

        The Board first identified the public interest at stake. Such an inquiry

involves a recognition that some inherently beneficial uses "are more

compelling than others." Id. at 165. In evaluating Sunrise's application, the

Board accepted that the assisted living facility would be an inherently beneficial


                                                                          A-5717-18T2
                                        10
use. The Board did not accept, however, Sunrise's contentions concerning the

need for an assisted living facility at the Property. In that regard, the Board

expanded the area to be considered and included Mercer County and

communities surrounding Princeton.

      Contrary to the arguments of Sunrise, there is nothing arbitrary,

capricious, or unreasonable about that determination.        The Board was not

required to accept the opinions offered by Sunrise's experts. Klug v. Planning

Bd., 407 N.J. Super. 1, 13 (App. Div. 2009) (citing El Shaer v. Planning Bd.,

249 N.J. Super. 323, 330 (App. Div. 1991)); Bd. of Educ. v. Zoning Bd. of

Adjustment, 409 N.J. Super. 389, 434 (App. Div. 2009) (citations omitted).

Instead, the Board had the right, as it did here, to consider that expert testimony

but not accept it.

      Moreover, in doing so, the Board was not usurping the authority of the

Department of Health, which has statutory authority to determine the need for

an assisted living facility. See N.J.S.A. 26:2H-1 to -26; N.J.A.C. 8:36-2.1.

Instead, the Board was acting appropriately under the MLUL to evaluate the

public interest at stake.

      The Board also properly evaluated the second factor in Sica by identifying

"the detrimental effect that will ensue from the grant of the variance[s]." 127


                                                                          A-5717-18T2
                                       11
N.J. at 166. The Board correctly found that granting the use variances would

constitute a "rezoning of the Property" because the entire R-SM zone would be

eliminated.

      The Board also found that allowing the assisted living facility would

effectively eliminate the R-SM zone's purpose, which is to provide housing for

active senior citizens. In that regard, the Board noted that the Property was

adjacent to the Princeton Shopping Center, which active senior citizens would

be likely to use, whereas the residents of an assisted living facility would be

unlikely to benefit from the shopping center. The Board also found that the

Property could not accommodate the density and size of the proposed assisted

living facility and that the proposed building would be "incompatible with the

surrounding" area. All those findings of detrimental impact are supported by

substantial credible evidence presented during the hearings before the Board.

Just as importantly, we discern nothing arbitrary, capricious, or unreasonable

concerning the Board's findings and reasoning.

      Sunrise argues that the Board effectively abdicated its responsibility when

it pointed out that granting the use variances would function as rezoning. We

do not construe the Board's reasoning and resolution as that narrow. It was

appropriate for the Board to consider the impact on "the zone plan and zoning


                                                                        A-5717-18T2
                                      12
ordinance." N.J.S.A. 40:55D-70(d); see also Twp. of N. Brunswick v. Zoning

Bd. of Adjustment, 378 N.J. Super. 485, 492 (App. Div. 2005) (citing AMG

Assocs. v. Twp. of Springfield, 65 N.J. 101, 109 n.3 (1974)) (holding that when

a "variance pertains to a substantial portion of[,] or an entire zone district, a

board's variance begins to closely resemble zoning, which is the exclusive

province of the municipality"); Victoria Recchia Residential Const., Inc. v.

Zoning Bd. of Adjustment, 338 N.J. Super. 242, 253 (App. Div. 2001) (holding

that a "[z]oning [b]oard may not rezone by variance"). Moreover, as already

discussed, the Board considered more than just the elimination of the R-SM

zone.

        Turning to the third factor in the Sica test, the Board found that there were

no conditions that could be imposed to reduce the detrimental impact. Again,

the Board appropriately considered that granting the application would eliminate

the R-SM zone. See Salt & Light, 423 N.J. Super. at 291 n.2 (holding that the

third factor in the Sica test is not applicable when the proposed use would

significantly undermine the zoning plan).         The Board also again properly

considered that there were no conditions it could impose to reduce the bulk and

density of the proposal.




                                                                            A-5717-18T2
                                         13
      Finally, the Board evaluated the fourth factor in the Sica test by weighing

the positive and negative criteria. We discern nothing arbitrary, capricious, or

unreasonable in the Board's determination that, on balance, granting the

variances would "substantially impair the zone plan . . . and would constitute a

rezoning of the Property."

      In short, Sunrise incorrectly argues that the Board did not engage in the

appropriate evaluation. Sunrise's real argument is that it disagrees with the

conclusions the Board reached under the Sica test. Because we find nothing

arbitrary, capricious, or unreasonable in the Board's evaluations, we have no

basis to reverse the Board. Accordingly, we agree with the trial court and affirm

its judgment dismissing Sunrise's complaint with prejudice.

      To the extent that we have not discussed Sunrise's remaining arguments,

it is because they are without sufficient merit to warrant discussion in this

written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                        A-5717-18T2
                                       14
