Edison zoning board denies CareOne’s Whispering Woods settlement after weeks-long litigation, heavy public opposition

The Edison Township Zoning Board of Adjustment on Dec. 4 denied a proposed settlement and amended application for a new CareOne memory-care facility at 1350 Inman Ave after hours of testimony, expert presentations and an extended public-comment period in which neighbors raised objections to notice, traffic, noise, height and safety. The vote followed competing legal arguments about whether the board should consider a settlement tied to prior litigation.

Attorney Peter Flannery, representing CareOne at Birchwood LLC, described settlement-driven revisions that he said address prior board concerns: the project was retooled into a memory-care-only use, the east side of the building nearest Lewis Court was lowered to two stories while a portion on the west side remains three, service areas and the generator were moved away from residential properties, and the applicant reduced some program intensity and updated parking counts.

Civil engineer Brian Waisner (Langan) testified about plan changes: the footprint was adjusted (ground-floor footprint ~37,447 sq. ft.; total building area including basement ~95,059 sq. ft.), the finished floor was lowered by about 18 inches to reduce apparent height, green-infrastructure stormwater measures were proposed, and the applicant plans an 8-foot board-on-board fence with supplemental landscaping. Waisner acknowledged that several zoning tables required variances: he stated proposed building coverage and FAR calculations (building coverage stated at ~17.4%; lot coverage ~43.2% were noted as higher than ordinance limits) and said final signed plans and further engineering would be submitted.

Objectors’ counsel challenged the hearing on notice and jurisdiction grounds, saying the public received insufficient time to review the settlement and that waiting years to pursue litigation undermined the process. Several residents and local counsel demanded copies of the settlement and updated studies; residents cited pedestrian and school safety near Inman and King streets, generator noise, visual impacts of a three-story massing, stormwater/wetland concerns near backyards and the need for updated traffic and sound studies.

Residents spoke at length: one neighbor said the site’s current generator already disturbs sleep, others described queuing and narrow local streets and asked how emergency access, pedestrian safety and potential flooding would be managed with a larger facility. Students and parents addressed school-safety and pedestrian concerns; multiple speakers requested a postponement to allow review of full settlement documents and expert analysis.

Applicant litigation counsel Bruce Nagel told the board that a federal judge in 2024 found the board’s prior denial unlawful and that the parties had negotiated a settlement over many months to reduce impacts and resolve the case. Nagel warned that rejecting the settlement would likely lead to a trial in which the applicant could seek significant damages; he described the settlement as a path to avoid protracted federal litigation and potential fiscal exposure to the township.

Board members debated whether variance standards, plan details and planning proofs were adequately presented for a decision that night. Several members said they were not satisfied that the applicant had provided sufficient current planning testimony and professional verification to overcome negative criteria related to height, coverage and neighborhood compatibility. Vice Chair O’Gorman moved to deny the Whispering Woods settlement and the motion carried on roll call: the board recorded seven 'yes' votes and the settlement was denied.

What happens next: the board’s denial ends the settlement hearing for now; the applicant may revise and resubmit, or litigate further in state or federal court. Objectors’ counsel indicated intention to pursue any available remedies; the town’s counsel and the applicant’s counsel have noted the federal ruling as a material factor that shaped settlement negotiations but said the board retains discretionary authority to grant or deny relief.

Proper names in this article: CareOne at Birchwood LLC; Peter Flannery; Brian Waisner; Michael Pomerico; Bruce Nagel; Edison Township Zoning Board of Adjustment.

The board formally denied the settlement and related relief at the conclusion of the meeting.