Judge rules against foes of planned Cherry Hill apartment complex

CHERRY HILL A Superior Court judge on Monday upheld the Cherry Hill Township zoning board's approval of a 152-unit luxury apartment complex to be built at a site most recently occupied by a building materials supplier.

In a case that underscored development tensions in one of the state's most heavily built-out municipalities, Judge Lee A. Solomon accepted the board's conclusion that Buckingham Partners L.L.C. of Cherry Hill had met its burden of proof related to variances. He rejected all arguments by the plaintiffs, a group of residents living nearby, who pledged to appeal.

The nine-acre site is at Brace and Kresson Roads. It includes a mostly vacant office building and a store that was vacated by building materials supplier ProBuild.

The township zoning board in September 2012 granted use and height variances sought by Buckingham for the proposed residential complex. The project is to include 23 units of affordable housing under court-ordered Council on Affordable Housing regulations.

Under COAH regulations, if a builder wants to build apartments in municipalities that have not fulfilled their affordable housing obligation, 15 percent of the units have to be affordable in a rental complex and 20 percent in an owner-occupied complex.

Solomon said the applicant had to prove that the site was particularly suited for the proposed use and that granting a variance would not cause substantial detriment to the public good and zone plan.

Solomon said the zoning board reasonably found that the site is particularly suited for residential use based on three factors: the site is underutilized; the proposal would improve ingress and egress; and the proposed use is consistent with surrounding neighborhood commercial uses and the residential use will support those.

"We are pleased with Judge Solomon's decision upholding the approvals granted by the Cherry Hill zoning board," said a statement from Buckingham.

"The objectors' arguments have now failed with the zoning board, the Township Council, the voters of Cherry Hill and the Superior Court. . . . With the court's decision today, we are privileged to move ahead with what we know will be a high-quality development and long-term asset for Cherry Hill."

Bob Shinn, who lives about a mile from the site and led a group of residents in the lawsuit against the developer and zoning board, said the project does not conform to the township's master plan and zoning laws. The area is zoned highway commercial, not residential.

In a lawsuit filed in February 2013, Shinn and the other resident plaintiffs argued that a business would produce higher tax revenue for the township than a residential site, and not place a financial burden on the school district.

Shinn said Monday that the plaintiffs would immediately move for a stay pending appeals.

"The plaintiffs will appeal . . . because the court did not fully consider many aspects of land use law applicable to a use variance," Shinn said in an e-mailed response. "New Jersey municipal land-use law strongly discourages allowing variances that allow a prohibited use [residences] in a zone specifically designated for a completely different use [commercial business]."

Shinn said the ruling "sets a terrible precedent" and would encourage other developers to end-run the township's master plan to get variances.

"Moreover, every commercially zoned property that becomes available will be able to get a use variance to allow apartments or condos with a minimum of affordable housing," Shinn said.

Township spokeswoman Bridget Palmer said the ruling affirmed the zoning board's role, which is "to adjust the zoning regulations on a specific property when the evidence presented supports such relief."