NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1022-06T11022-06T1

POND RUN WATERSHED ASSOCIATION,

an unincorporated group of

Hamilton Township residents,

Ames Hoyt, principal officer,

and AMES HOYT, Individually;

DAVID ARDENTE, ALBERT and

CINDY BRITTON, JAMES CANTERBURY,

CARL D. MARKAU and MARY ANN

RIEGER,

Plaintiffs-Appellants,

V.

TOWNSHIP OF HAMILTON ZONING

BOARD OF ADJUSTMENT and

CRESTWOOD CONSTRUCTION, LLC,

Defendants-Respondents.

______________________________________

Argued November 26, 2007 - Decided

Before Judges Lintner, Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2101-05.

R. William Potter argued the cause for appellants (Potter and Dickson, attorneys; Mr. Potter and Peter D. Dickson, on the brief).

John H. Dumont argued the cause for respondent Township of Hamilton Zoning Board of Adjustment (Dumont & Watson, attorneys; Mr. Dumont, on the brief).

Daniel J. Graziano, Jr., argued the cause for respondent Crestwood Construction, LLC (Daniel J. Graziano & Associates, P.C., attorneys; Mr. Graziano and Sahbra Smook Jacobs, on the brief).

The opinion of the court was delivered by

SABATINO, J.A.D.

Plaintiffs, several residents of Hamilton Township ("the Township") and a watershed preservation advocacy group, seek to invalidate numerous use and bulk variances the Township's Zoning Board of Adjustment ("the Board") granted to a developer, Crestwood Construction, LLC ("Crestwood" or "the developer"). The variances authorized Crestwood to build on a 10.9-acre site a mixed-use project, consisting of four buildings with a total of 119 age-restricted apartments, two retail/office buildings, and another building with a 168-seat restaurant. The variances were necessary because the site is located in a research and development zone ("RD zone") that prohibits residential housing and that disallows retail businesses and restaurants except on lots with at least one hundred acres.

The Law Division rejected plaintiffs' challenge to the project in most respects, except that it found that the developer had improperly agreed, as a condition of its variances, to pay a $476,000 subsidy to the Township for the off-site construction of a proposed amphitheatre in a nearby municipal park. Ruling that the $476,000 illegal exaction was only a minor part of the project, the trial court excised that condition and did not require any further public hearings before the Board. Plaintiffs now appeal the trial court's decision on multiple grounds.

Although many of plaintiffs' arguments lack merit, we are persuaded that the variances are flawed in two significant respects. First, the notice of its zoning application that Crestwood published in the newspaper and served upon nearby property-owners was substantively deficient under Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 241 (App. Div. 1996). In accordance with Perlmart, the notice should have specifically alerted neighbors and the public at large that the variances Crestwood sought included approval for a large restaurant with a potential liquor license, going beyond the notice's vague reference that the project included "retail/office units." Second, the developer's bargained-for $476,000 contribution towards an off-site Township recreational facility was a significant, not a minor, part of the development proposal, substantially intended to compensate for the project's complete lack of on-site recreational facilities for the senior citizens who would be living there. Consequently, the matter preferably should have been remanded to the Board for further public consideration after the trial court correctly deemed the developer's negotiated payment an illegal exaction.

Because the project is already partially built, we decline to fashion a comprehensive remedy to address these deficiencies, except that we enjoin further construction of the restaurant at this time pending proper notice to the public of the restaurant proposal and the Board's renewed consideration. We remand the matter to the Law Division for the fuller development of an up-to-date factual record germane to remedial issues, and to clarify the scope of the issues that must be reheard before the Board. After those facts are adduced, the trial court shall exercise its sound discretion to formulate a solution that duly considers the interests of the litigants, affected third parties such as contractors, vendors, and prospective tenants, and the public at large.

I.

The project at issue, known in marketing materials as "Twin Ponds," involves a 10.9-acre L-shaped parcel of land on the east side of Yardville-Hamilton Square Road in Hamilton Township. The property is designated as Section (or Block) 2173, Lots 18, 19, 20 and 21 on the Township's tax maps. The property was formerly used as farmland. At the time of Crestwood's zoning application, the property was vacant and owned by the Diocese of Trenton. The developer, Crestwood, subsequently purchased the property and planned to continue to own it after the project was built.

In its application submitted to the Board in January 2005, Crestwood proposed a "mixed-use active adult community and commercial development" on what is an RD zone. Of the 17,000 square feet proposed as commercial space, a sit-down restaurant would cover 5,000 square feet and the remaining 12,000 square feet would be "dedicated to an even split of office and retail use."

The site would also include four two-story buildings with "age qualified" garden apartments for residents fifty-five and older. Each building would have thirty-two bedroom units. Each apartment would have two parking spaces as required by the local ordinance. The woods in the far eastern portion of the property were to be preserved.

The "boulevard type entrance" for the project would line up directly with Briarwood Drive, a residential subdivision across the street, and would have a landscaped island. The development would be called Twin Ponds because of two artificial ponds to be created on each side of the entrance driveway. The ponds were an aesthetic consideration and would provide only minimal storm water management. The Township's engineers, land use coordinators and other consultants reviewed and commented on Crestwood's application before the Board considered it.

Crestwood applied for two use variances, pursuant to N.J.S.A. 40:55D-70(d), for relief from the use restrictions in the RD zone. One use variance was required because the proposed residential use for the apartments is not permitted in the RD zone. The second use variance was needed because the proposed commercial uses for the 10.9-acre site did not meet the criteria for this size project. By Township ordinance, mixed use developments in the RD zones containing retail uses are permitted only if the minimum total area to be developed is one hundred acres. Hamilton Twp., N.J., Land Dev. Code