Judge to decide on zoning variances

From left to right, at the proposed site for the apartments at Brace and Kresson Roads in Cherry Hill, are: Martha Wright, Bert MacKay, Susan McNaughton, and Eric O'Dell. ( APRIL SAUL / Staff )
From left to right, at the proposed site for the apartments at Brace and Kresson Roads in Cherry Hill, are: Martha Wright, Bert MacKay, Susan McNaughton, and Eric O'Dell. ( APRIL SAUL / Staff )
Posted: January 15, 2014

CHERRY HILL The suitability of a luxury apartment complex for a site near a busy Cherry Hill intersection remained the dividing line between attorneys at a Superior Court hearing Monday.

The case underscores development tensions in one of the most heavily built-up municipalities in the state, and tests whether zoning can be changed if a project is deemed to promote the public welfare.

The Cherry Hill zoning board in September 2012 granted use and height variances sought by Buckingham Partners of Cherry Hill for the 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.

The nine-acre site is at Brace and Kresson Roads. It has an office building and a vacant store most recently occupied by a building materials supplier.

Lynda Yamamoto, an attorney for Bob Shinn and other neighbors opposed to the project, argued that the zoning board did not conduct an independent study on issues such as traffic before approving the variances.

Instead, she said, the board relied strictly on the developer's expert witnesses and failed to show that the variances were justified.

"It's not possible to determine where an independent analysis took place," Yamamoto said before Judge Lee Solomon in Camden. "We're questioning the credibility of the zoning board's decision. The board did not do its job."

Shinn, who lives about a mile from the site, said the project does not conform to the master plan and zoning laws. The area is zoned highway commercial, not residential.

Shinn and seven other residents were the lead plaintiffs in the case against the developer and the zoning board. The group's legal fees are being covered by individual contributions being made to a legal fund; the Barclay Area Civic Association is collecting the contributions on the fund's behalf.

In a lawsuit filed in February 2013, the 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.

"In other words, this is about allowing land use that was previously prohibited to now all of a sudden be altered to allow for high-density housing, making the master plan irrelevant," Shinn said.

Shinn - who was at Monday's hearing with about three dozen other residents - said the project includes adding 320 parking spaces.

"The question becomes, does the proposal promote the public's welfare because the site is particularly suitable for the proposed use," he said.

Kevin D. Sheehan, an attorney for Buckingham Partners, asked Solomon to uphold the variances.

"You have to look at the [developer's] application and the basis for the project's suitability," Sheehan said. "The site is not in the middle of an industrial park.

"You have restaurants and shops close to the proposed site, and an opportunity to develop affordable housing."

When the zoning board granted the variances, the township had 95 days to intervene, but did not.

Solomon is to issue a decision Feb. 3.

Township spokeswoman Bridget Palmer said Monday: "Our policy is not to comment on pending litigation."


sparmley@phillynews.com

856-779-3928 @SuzParmley

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