A judge upheld the Princeton planning board’s decision to deny a continuing-care retirement community on the former Our Lady site.
By: Jane Karlicek
A state Superior Court judge on Friday upheld the Princeton Regional Planning Board’s December decision to deny an application for the 628,000-square-foot Regent’s Mead continuing-care retirement community on the former Our Lady of Princeton site.
Superior Court Judge Linda Feinberg ruledthat that the Planning Board had the legal authority to deny the application based on a lack of jurisdiction because of the type of variance required. The application would require a zoning variance, Judge Feinberg said, which the Planning Board does not have the authority to grant.
The applicant, Princeton Lifestyles LLC, can submit an application to the Princeton Township Zoning Board of Adjustment, Judge Feinberg said.
When the Planning Board denied the Regent’s Mead application in December, the board’s major concern was the fact that the local continuing-care retirement community ordinance did not specify a floor-area ratio. Instead, the ordinance simply authorizes such a facility as a conditional use in a residential zone.
The issue of whether the Planning Board had jurisdiction over the application was raised by attorneys representing neighbors of the proposed facility at the corner of Drakes Corner Road and The Great Road in Princeton Township. They contended that, in the absence of a floor-area ration, the underlying FAR in the residential zone — 6.5 percent to 7.5 percent — would apply to Regent’s Mead.
Judge Feinberg agreed.
“If you look at other conditional uses, they specifically identify a FAR,” she said at Friday’s hearing. “If it was the intent of the Planning Board, they would have put one in. It was the township’s intent to not include a FAR. The Planning Board did lack jurisdiction.
“There are bulk requirements identified and Regent’s Mead has argued that they’re exclusive,” Judge Feinberg continued. “The absence of a FAR specification does not mean the township didn’t intend to have one. With other conditional uses, golf courses and houses of worship, they have bulk requirements as well as FAR requirements. The township elected the CCRC to have the underlying district control it.”
The developer had proposed constructing four new buildings on the 43-acre Our Lady of Princeton property. The 628,000-square-foot retirement community would be comprised of 215 independent-living units, 44 skilled-care units and 42 assisted-living units. After the Planning Board’s denial of the application, the developer sued the Planning Board seeking a reversal of its action.
Joseph Del Duco, the attorney representing the developer, said Friday that the developer can appeal Judge Feinberg’s decision but “we have to decide what to do.”
Attorneys representing both the Planning Board and neighbors were happy with the judge’s decision.
“We’re obviously very pleased,” said Richard Goldman, an attorney who represents a group of neighbors. “The court, having reviewed this issue, has agreed with our and the Planning Board’s interpretation of the ordinance.”
At the start of the court proceedings Friday, Judge Feinberg issued a tentative decision in support of the Planning Board. After hearing oral arguments from Mr. Del Duco, Planning Board attorneys, Mr. Goldman and another attorney, Jeffrey Baron, who represents a neighbor, she maintained her initial decision as her final one.
Mr. Del Duco argued that the ordinance governing continuing-care retirement communities left out a FAR because it listed other bulk criteria, such as the maximum number and size of independent-living units, which regulated the size of such a facility.
“The ordinance describes the bulk and appropriate size of a project in great detail,” Mr. Del Duco said. “There’s not one single word which said FAR should be controlled. It’s impossible to construct the project they (the township) envisioned with a 6.5 to 7.5 (percent) FAR. It’s impossible to build any CCRC project. You can’t build anything remotely consistent with all the other bulk criteria in the ordinance. Had they intended to regulate the FAR, they would have said so. You can’t have an ordinance that has one set of bulk criteria and, on the other hand, silently impose other bulk criteria (such as FAR).”
Attorney Gerald Muller, representing the Planning Board, said the township meant to leave out a FAR and let the underlying FAR apply to any application for a retirement community.
“The ordinance applies CCRCs across a variety of zones,” Mr. Muller said. “The variable FAR (of the different zones) does reflect the character of all the zones. The underlying district’s FAR is in effect and remains in effect unless it’s modified.”
Mr. Muller also pointed out that the developer chose a site located in a “low-intensity, residential zone with a small tract.”
“You could build Regent’s Mead if you had a larger tract in that zone,” he said.