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Conifer Realty, L.L.C. v. Township of Middle Zoning Board of Adjustment

A-6268-09T2 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; VARIANCES — Since variances are deviations from the zoning code, they are to be given sparingly, but when the proposed use is an inherently beneficial one, the negative standard is relaxed and only require consideration of the relationship between the benefits and burdens of granting the variance.

A commercial developer applied for use and bulk variances to develop an irregularly shaped property and construct ninety affordable housing units. The property was located within the municipality’s “suburban residential zoning district” which permitted, as principal uses, single family detached hones and two-family residential buildings in sewered areas. The municipality’s zoning code also contained an affordable housing component. The property and the developer’s planned development were included in the municipality’s Fair Share Plan which was prepared in accordance with the Fair Housing Act of 1985.

The zoning board denied the developer’s application, finding that the project’s density significantly exceeded that permitted within the suburban residential (SR) zone, and noting that the zoning code did not allow density to be increased by affordable housing. The zoning board also raised concerns about increased traffic patterns that would result from the development, as well as about the potential adverse environmental impact the project would have on a wildlife refuge and its habitat. The zoning board’s conclusions regarding traffic and environmental impact were based on non-expert testimony.

The developer sued. The lower court found that the zoning board applied the improper legal standard in evaluating the developer’s variance application. It found that the application should have been viewed under the “inherent beneficial use” legal standard. However, it found that even using that standard to satisfy the positive criteria required for variances, the developer still did not satisfy the negative criteria. Therefore, it upheld the denial. The developer appealed and the Appellate Division reversed.

In reversing, the Court noted that since variances are deviations from the zoning code, they are to be given sparingly. The applicant must satisfy both positive and negative criteria. The positive criteria are satisfied if the applicant can demonstrate that the proposed use will promote the general welfare because the proposed site is particularly suited for the proposed use. The negative criteria are satisfied if the applicant can show that the application can be granted without a substantial detriment to the public good and without substantially impairing the intent and purposes of the master plan and zoning ordinances. The Court also noted that, when the proposed use is an inherently beneficial one, the negative standard is relaxed. In such cases, satisfaction of the negative criteria requires consideration of the relationship between the benefits and burdens of granting the variance.

The Court found that the zoning board improperly used the enhanced standards required for most variances, instead of using the relaxed standards applicable when a use is inherently beneficial. The reason the zoning board improperly determined that the use was not inherently beneficial was because the developer was a for-profit entity, as opposed to a non-profit entity. However, when determining inherent beneficial use, the focus should be on the proposed use of the property and not the status of the applicant. Since affordable housing is recognized by law as an inherently beneficial use, the zoning board should have applied the relaxed standard by weighing the benefits and burdens of granting the requested variances.

The Court then noted the four-step test for weighing the positive and negative criteria when the use is inherently beneficial: (a) identifying the public interest at stake; (b) identifying the detrimental effects that would ensue from granting the variance; (c) possible reductions of the detrimental effects if reasonable considerations are imposed; and (d) determining if, on balance, granting the variance would be a substantial detriment to the public good. The Court found that although the lower court property noted that the use was inherently beneficial, its findings regarding the negative criteria even though they were conclusory and unsupported by substantial, credible evidence.

The Court found that the lower court failed to recognize the import of the municipality’s inclusion of the property in the Fair Share Plan. The municipality included the property in its affordable housing share plan even though the density exceeded that permitted in the SR zone, and even though the zoning plan was not amended at the time. Therefore, the zoning board acted arbitrarily, unreasonably, and capriciously in rejecting the application based on the density. The Court also found that the zoning board unreasonably relied on unsubstantiated, non-expert testimony from environmental groups as to the environmental impact of the proposed development. In addition, the zoning board rejected the developer’s traffic expert’s opinions, but did not impose any reasonable conditions that would have allowed the development to proceed while alleviating its concerns, as it should have done.

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