Tensions escalated at last Tuesday night’s Hopewell Township Zoning Board meeting, which marked the fourteenth evening of virtual participation over the application to turn the historic Hollystone Manor at 29 Fiddlers Creek Road into a “boutique” hotel called “The Hopewell.”
The most substantive achievement of the hearing was the final cross-examination of groundwater expert Matt Mulhall by Stuart Lieberman, the attorney representing the opposition group, “Stop the Hotel.” Lieberman questioned Mulhall about any findings regarding the property’s ability to support the proposed commercial use. He also inquired about the existence of a sufficient “good neighbor policy” to ensure neighboring wells would not be affected. Mulhall explained that it is recommended to have a minimum of 2-3 observation wells on the site. There was no response from the owner or her attorney about whether they would act on that recommendation.
During Lieberman’s cross-examination and subsequent questions from the public, there was an unexpected and abrasive reaction from Zoning Board Chair Eric Hatke, who said he had recently experienced two personal losses. Hatke later apologized and clarified the reasons for his outburst. Stating that he felt overwhelmed, Hatke excused himself from the meeting, explaining “I’m going to turn this over to Mr. [William] Cane because I have reached my limit. I have to apologize. I just don’t know what to say. Bill, please carry this meeting to its conclusion tonight.”
Following Hatke’s departure, Cane and other board members agreed to conclude the meeting at that point. They announced that the next meeting, scheduled for July 24 at 7pm, would involve the submission and discussion of another environmental report.
Additionally, the Board anticipated allowing public comments during the designated “public comment” period at the July 24 meeting. Kevin Van Hise, the Zoning Board attorney, advised members of the public that comments would be limited to four minutes per person. He also reminded individuals planning to attend the next meeting by zoom to ensure their audio and visual mechanisms were functioning properly, as it is a State requirement for both to be engaged.
Prior coverage
- Titusville’s historic Hollystone manor, proposed to become a hotel, will be focus of Township Zoning Board meeting Wednesday
- Owner of proposed boutique hotel at Hollystone answers zoning questions
- Traffic increase from boutique hotel would be “negligible,” applicant’s expert says
- Hollystone remains subject of Zoning Board hearings
- Zoning Board hears experts from Hollystone hotel opponents on water, septic use
Background
The applicant, Margo Stern, owner of the property, is requesting a “use variance” that will be determined by the Township Zoning Board of Appeals. Since November, a group of residents called “Stop the Hotel,” has worked to challenge the applicant.
What does an applicant need to show to get a use variance?
Editor’s Note: We erroneously noted the wrong standard previously. We cited New Jersey’s administrative code N.J. Admin. Code § 19:4-4.14 when it is actually laid out in NJ Municipal Land Use Law 40:55-70d.
The town of West Orange has a very nice explanation as follows (from https://www.westorange.org/824/Zoning-Board-Application-Process):
“D” VARIANCE
There are six instances when an applicant must ask for a “D” variance. For a “D” variance, proof by the applicant is especially important. A “D” variance is a request to use property in a way contrary to the Township’s zoning plan and should not be taken lightly. At least five members of the Zoning Board must vote affirmative for a “D” variance to be granted.
The six instances for granting a “D” variance in the MLUL (40:55-70d) are as follows: The Board shall have the power to, in particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of
this act to permit:
(1) a use or principal structure in a district restricted against such a use or principal structure;
(2) an expansion of a nonconforming use;
(3) deviation from a specification or standard pursuant to section 54 of P.L. 1975, c. 291 (C.40:55D-67) pertaining solely to a conditional use;
(4) an increase in the permitted floor area ratio as defined in section 3.1 of P.L. 1975, c.291 (c.40:55D-4);
(5) an increase in the permitted density as defined in section 3.1 of P.L. 1975, c.291 (c.40:55D-4) except as applied to the required lot area for a lot or lots for detached one or two dwelling unit buildings which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision;
(6) an increase of height which exceeds either 10 feet or 10% of the max building height permitted in the district of the principle use.
For a “D” variance, the two things that must be proven are the positive criteria, sometimes called special reasons, and the negative criteria.
There are three ways of proving the positive criteria (special reason):
(1) Occasionally, an application for a “D” variance is for a use that inherently serves the public good. Examples are schools, hospitals, public housing and sewage treatment plants. Because such a use is inherently beneficial to the public good and therefore serves the general welfare, the positive criteria or special reasons test would be satisfied. Even if the use is beneficial, the applicant still must prove negative criteria.
(2) Rarely, special reasons can be satisfied if undue hardship or economic inutility can be proven. It is important to point out that the inability to make the most profitable use of the site will not qualify as such hardship or inutility.
(3) In most cases special reasons, purposes of the Municipal Land Use Law at 40:55D-2 (see above), must be considered and proven. The most important special reason is 40:55D-2a. “To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner that will promote the public health, safety, morals and general welfare;” If number 1 or number 2 above have not been proven, then the applicant must prove that general welfare will be promoted because the proposed site is particularly suitable for the proposed use. Of course other special reasons should also be proven.
If the positive criteria has been proven, then the applicant must also prove negative criteria:
(1) The use shall not be substantially detrimental to the public good.
(2) The use shall not substantially impair the intent and purpose of the zone plan and zoning ordinance.
If the positive criteria (special reason) has not been proven, the applicant is not entitled to a variance.
