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Mercer County Superior Court judge chastises Princeton Planning Board for ‘transcending its variance authority;’ overturns Humbert Street townhouse development

The Princeton Planning Board will continue to hear Simplify Living Inc.'s application to build a three-unit development at 23-25 Humbert St. at its May 6 meeting.

A Mercer County Superior Court judge has overturned the Princeton Planning Board’s approval of a three-unit townhouse development on Humbert Street, which is a one-way street off Wiggins Street, in a ruling issued Oct. 3.

Superior Court Judge Robert Lougy’s ruling, which was issued in response to a lawsuit filed by three neighboring property owners challenging the Planning Board’s action, means the development at 23-25 Humbert St. cannot go forward.

The judge also chastised the Planning Board for “transcending its variance authority” by granting 16 variances that would “substantially alter the character of the R-4 zone district as that character has been prescribed by the zoning ordinance.”

The Humbert Street property is in the R-4 residential zone.

The neighboring property owners also sued Princeton Realty Investment Group LLC, which owns the property on Humbert Street, and developer Simplify Living Inc., which was granted approval for the project in July 2021.

Donald and Mary Anne Greenberg and Dan Brown, who own rental properties on Humbert Lane – which is a private, shared driveway off Humbert Street – filed the lawsuit in February 2022. The property at 23-25 Humbert St. is opposite Brown’s property at 2 Humbert Lane, which is a vacant lot, and 6-8 Humbert Lane. The Greenberg’s property is located at 10-12 Humbert Lane.

The Planning Board granted Simplify Living Inc.’s application for minor site plan approval at its July 1, 2021 meeting. The board approved 16 variances, including the amount of impervious coverage, the minimum lot size and lot depth for each attached townhouse, and the minimum side yard and rear yard setbacks for each one.

One townhouse would face Humbert Street; the middle-attached townhouse would face Humbert Lane; and the third attached townhouse would face the rear of the property. A two-family house that was demolished in anticipation of the project faced Humbert Street.

Princeton’s zoning ordinance would have required the three attached townhouses to face Humbert Street, which is a public street.

The neighboring property owners alleged that the Planning Board’s actions were “arbitrary, capricious and unreasonable,” and sought to reverse the Planning Board’s approval of the application and prevent Princeton Realty Investment Group LLC and Simplify Living Inc. from developing the property, as approved by the Planning Board.

In his Oct. 3 ruling, Judge Lougy was critical of the Planning Board’s approach to considering the application – including how the 16 requested variances were addressed. The board treated one variance under a whole-lot concept and the 15 remaining variances under a sub-lot concept, as if they were separate lots, he wrote.

One of the 16 variances addressed impervious coverage. The town’s zoning ordinance allows for a maximum of impervious coverage – the building, driveway and sidewalks – of 36%. The applicant sought a variance to permit impervious coverage of 70.9% on the entire lot, which was granted by the Planning Board.

But then the Planning Board broke apart – and granted – 15 variances for minimum lot area and minimum lot depth, side yard, rear yard and open space standards on a sub-lot basis. Each attached townhouse was treated as if it was on a separate lot, in contrast to the board’s whole-lot approach to the impervious coverage variance, Lougy wrote in his decision.

The Planning Board wrote in its resolution of memorialization approving Simplify Living’s application that the R-4 zoning district would permit three townhouses, but they would all be required to face a public street (Humbert Street). The R-4 zone does not allow a plan in which only one of the three attached townhouse units faces a public street.

The Planning Board’s resolution stated that since the zoning ordinance did not contemplate the layout proposed by Simply Living Inc., the board was not bound to abide by it. There were compelling reasons to justify a more flexible approach to consider the variances, the resolution said.

The Planning Board’s approach supported several Master Plan goals, particularly with respect to energy-saving principles of construction, according to the resolution. This made it possible to give thorough consideration to a project that would not have been made possible under a conventional zoning scheme or design, the resolution stated.

Lougy rejected the board’s reasoning. He wrote that “a variance may usurp the zoning power” if granting the variance “substantially alters the municipality’s zoning plan.” The extent of the variances being sought, which were only possible under the Planning Board’s “flexible and erroneous interpretation” of the zoning ordinance, would change the character of the R-4 zone, he wrote.

“The Planning Board’s interpretation is not entitled to deference and only serves to promote Simplify’s interests in not conforming with the zone’s orientation requirement (for all three units to face a public street) and the board’s own ideas of appropriate zoning,” Lougy wrote.

Granting approval for the application as proposed “not only substantially alters the character of the disputed tract, but would also open the door to substantially alter the character of the R-4 zone overall,” he wrote.

“Therefore, the Court determines that the Planning Board has improperly used its variance power to rezone, (taking away) the governing body’s exclusive zoning authority. The Court reverses the Planning Board’s decisions on the entirety of Simplify Living’s development application as arbitrary, capricious and unreasonable,” he wrote.

The Planning Board knew that the R-4 zone would require the three townhouses to face Humbert Street, and that the proposed development did not comply, Lougy wrote. Simplify Living did not request a variance to allow the design as contemplated.

Rather than considering whether the proposed development complied with the zoning regulations, “the Board instead interpreted the zoning requirements in a way that ensured Simplify’s proposed development would comply as presented,” he wrote.

“It is not within the Planning Board’s province to adopt different zoning approaches,” Lougy continued.

“The record reveals that the Planning Board justified its decision to advance what it considered to be more appropriate smart growth planning, based on comments made by Planning Board members in transcripts of the meetings held on the application.”

According to the transcripts, several Planning Board members agreed that Princeton is a desirable place to live and that it may be necessary to encourage more density – more housing units – in this part of town “in a smart way” because it is close to the center of town.

Lougy wrote that the Planning Board’s “smart growth” approach to variances would not be limited to 23-25 Humbert St.

“The Board’s ‘smart growth’ approach … contemplates that the transformation of the R-4 zone to promote ‘smart growth’ is inevitable, threatening to use the variance power to change the essential land use scheme of the entire district itself and perhaps of the entire municipality as well,” he wrote.

The Planning Board has transcended its variance authority and “the Court may and must reverse its actions for that reason alone,” Lougy wrote in his decision overturning the Planning Board’s actions.

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