Kensington Senior Development LLC had sought to construct a 92-unit building that would have fully occupied the 1-acre site between Bloomfield and Claremont avenues. The project would also have had 55 underground parking spaces and 54 additional parking spaces on the Richfield lot at 312 Claremont Avenue. Kensington’s business model is to build assisted living facilities in urbanized locations on major roads and the Verona development would have been its fifth such facility.
But to operate in Verona, Kensington needed a major variance because assisted living is not a permitted use for properties that are zoned as Town Center, as the Richfield property is. Assisted living facilities are also not a permitted use anywhere else in town: Hillwood Terrace, which is often referred to as Verona’s senior housing, is actually a Section 8 property for low-income households.
When trying to get a variance for a non-conforming use, projects must show that what they want to do promotes the municipal land use law, and is peculiarly suited to the target location. Applicants like Kensington would seem to have a bit of case law on their side because New Jersey courts have set out a concept known as “inherently beneficial use”: Uses with such value to a community that municipalities should accept them even if they are not part of the zoning.
The witnesses called by Kensington over the multiple hearings on the project did strive to emphasize the beneficial use of an assisted living facility and Robert Gaccione, the Board of Adjustment’s lawyer, told the zoning body before it began its deliberations that housing for the elderly “is an inherently beneficial use”. That, however, is not sufficient reason for approval. Projects also have to pass the so-called Sica balancing test, which seeks to assess the negative criteria of inherently beneficial uses. The Sica test compels zoning boards to identify problems that could be caused by granting a variance and determine what could be done to mitigate those problems. And that’s where the Kensington project came undone.
Board member John Denton took issue with the project’s lack of retail, saying that Verona’s Master Plan had sought to “preserve retail at pedestrian scale”. “We’re taking a huge property out of the retail equation,” Denton said. The Bloomfield avenue facade of the proposed Kensington building does have a retail look to it, unlike the Richfield building, which pre-dates the Master Plan. And the Kensington building was to have included a hair salon that could have been open to the community, except that the Board of Adjustment asked for it to not be open in one of the early hearings.
Lawrence Lundy, the board’s vice chair, disputed the lack of retail was a negative for the project. He noted that the Verona Place apartments, which are directly across the street from the Richfield lot, also lack retail and said that the Richfield lot’s downward slope makes it unsuitable for retail. (Before being re-developed as the catering facility in the early 1960s, there was a supermarket on the property and a handful of small stores.)
Other board members seemed to feel that the traffic patterns at the Kensington project were negative criteria. Scott Weston expressed concern for the safety of Kensington residents if they tried to go to Verona Park by themselves, crossing Bloomfield Avenue, which drew a rather pointed rebuke from Lundy. “I must be tired or really sick,” he said. “I don’t understand the dichotomy that you’ve created. The people [in this facility] would need assistance to get around. Are they like zombies venturing out to be struck down?”
In the end, the D variance got only three of the five affirmative votes that it needed, from Lundy as well as Sean Sullivan and Board Chair Daniel McGinley.
What’s next for the project? Robert Podvey, the lawyer representing Kensington, made a point during his summation of noting that previous Verona boards that went against beneficial use arguments had faced court challenges to those decisions. But Michael Rafeedie, Kensington’s development officer, declined to comment after the meeting as to what its next steps would be.
Jude Roppatte, who has been the owner of the Richfield since 1995 was much more definitive. “We’re going to continue to operate exactly as we have operated for the last 50 years. Maybe for another 50.”
You can watch the full hearing in the video below:
