NJ Supreme Court Settles Proof Debate For Conditional Use Variances

by Pepper Hamilton LLP
Contact

The New Jersey Supreme Court has finally settled the question concerning the burden of proof for an applicant to obtain approval of a conditional use variance. On July 23, 2013, the court decided TSI East Brunswick, LLC v. Zoning Bd. of Adjustment of Twp. of East Brunswick (A-124-11), which addressed the issue of the quality of proofs an applicant must demonstrate to satisfy the negative criteria for the grant of a conditional use variance. The court held that the enhanced quality of proofs standard attributable to use variance cases has no application at all in the evaluation of an application seeking conditional use variance relief.

The facts of TSI East Brunswick, LLC involved a tract of land along Route 18 in East Brunswick Township and located within the municipality’s General Highway Commercial (HC-2) District. The owner, New Vornado, proposed to convert a vacant building on the property into a LA Fitness health club. Because a for-profit health club facility was classified as a conditional use in the HC-2 Zone, New Vornado was required to comply with relevant conditions established by the ordinance, including that the boundary of the lot on which the use was to be placed had to be located more than 500 feet from any residence. While the proposed LA Fitness building was approximately 1,200 feet from the closest residence, the edge of New Vornado’s property was within 500 feet of some homes in a small residential neighborhood situated on the other side of Route 18. Consequently, New Vornado was required to seek a conditional use variance from the East Brunswick Zoning Board of Adjustment pursuant to N.J.S.A. 40:55D-70(d)(3). The owner of a New York Sports Club across the street from New Vornado’s site objected to the application.

The Zoning Board granted New Vornado’s application finding that the proposed health club facility’s impact on nearby residences was insubstantial and the use did not substantially impair the Township zoning ordinance or zone plan. The New York Sports Club owner brought a prerogative writs action. The trial court upheld the Zoning Board’s decision. On appeal to the Appellate Division, the New York Sports Club objector argued that the Zoning Board had erred by not requiring New Vornado to prove the negative criteria by the enhanced quality of proofs standard established in Medici v. BPR Co., 107 N.J. 1 (1987) for use variance applications. The Appellate Division affirmed the trial court’s decision without directly addressing the quality of proofs issue. The court granted New York Sports Club’s petition for certification on the limited issue of whether an applicant for a conditional use variance must prove the negative criteria by the Medici standard.

The Medici decision established that zoning boards, in the context of a use variance, must address the positive and negative criteria found in N.J.S.A. 40:55D-70(d) and required that the negative criteria be demonstrated through an “enhanced quality of proof” defined as “reconciling the proposed use with the zoning ordinance’s omission of the use from those permitted in the zone district.” This requirement came from the court’s recognition that use variances are by their very nature inconsistent with the municipality’s zoning policy embodied in its adopted zoning ordinance and master plan. In Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285 (1994), the court determined that the burden of proof required for a use variance was too onerous for a conditional use variance and fixed a less stringent standard for conditional use variance relief cases. However, because of the particular issues that were raised, the Coventry Square decision only addressed the positive criteria and, although describing the negative criteria test in the conditional use variance case as being “similar” to the relaxed standard applied to the positive criteria, it did not expressly delineate the proper test. As a result, the matter of the quality of proofs for a conditional use variance to meet the negative criteria of the statute became a subject of debate in the land-use community for the past two decades, with one school of thought arguing Medici’s enhanced quality of proof still applied in the conditional use context while others advocated that the less-stringent proof standard of Coventry Square had application for both the positive and negative criteria. This lack of clarity gave rise to conflicting Appellate Division decisions.

In TSI East Brunswick, LLC, the court determined the Medici enhanced quality of proofs standard was inappropriate for evaluating an application for a conditional use variance. The court’s reasoning was based upon the fact that use variances and conditional use variances are fundamentally different. The former proceeds from the assumption that the use is prohibited, whereas the latter proceeds from the assumption that the use, if it complies with certain conditions, is permitted. The court stated that the inability of an applicant to comply with one of the conditions of the conditional use does not convert the use into a prohibited one.

Centered on this clear distinction between the two types of variances, the court went on to explain that for a conditional use variance, a zoning board must focus on the specific project at a specific site to find whether granting relief from one of the conditions can be reconciled with the reason the municipality imposed that condition in the zone. On the other hand, for a use variance, a zoning board must focus on the proposed prohibited use itself at the site to determine whether granting relief for the use can be reconciled with the municipality’s zoning ordinance. The court concluded the conditional use variance analysis was based on an entirely different premise from that of a use variance and therefore if the Medici standard were to be applied in the conditional use framework, it would effectively eradicate the distinction that a municipality drew when it designated the use as conditional. In applying its holding to the particular facts at hand, the court found the Zoning Board properly evaluated New Vornado’s conditional use application and upheld the approval.

With the TSI East Brunswick, LLC decision, there is now a bright-line rule as to quality of proofs that apply to conditional use variance applications. There is no longer any doubt that the Medici enhanced standard has no place in the conditional use variance context. Instead, such applications are to be judged solely by the relaxed standard of Coventry Square as to satisfaction of both the positive and negative criteria. Questions concerning this article may be directed to the author.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pepper Hamilton LLP | Attorney Advertising

Written by:

Pepper Hamilton LLP
Contact
more
less

Pepper Hamilton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.