(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
COVENTRY SQUARE, INC. V. WESTWOOD ZONING BOARD OF ADJUSTMENT, ET AL. (A-26-94)
Argued October 11, 1994 -- Decided December 15, 1994
GARIBALDI, J., writing for a unanimous Court.
Westwood Development Associates (Associates) planned to build an eighteen building, 216-unit
apartment complex in a zone in which apartments were a conditional use. A conditional use is a use that is
neither prohibited throughout the zone nor permitted in every location in the zone. Rather, it is allowed in
locations in the zone where the use meets the conditions set forth in the zoning ordinance.
At the time Associates made application to build the apartment complex, its property was located in the
O3 zone, in which the permitted uses are office buildings, medical laboratories, and research facilities. One
of the conditional uses permitted in that zone are apartments that comply with the specifications of the AP
zone. The AP zone is primarily a residential zone that allows for, among others, apartments for three or
more families. Associates' proposed apartment complex would meet all but two of the bulk specifications of
the AP zone. Specifically, the plan deviates from the rear-yard and the aggregate side-yard setback
requirements. In the AP zone, the aggregate side-yard setback requirement is thirty percent of frontage,
which would be almost 150 feet. Associates' plan has side yards of thirty-three feet each, for an aggregate of
sixty-six feet. The rear-yard setback minimum is forty percent of lot depth, which would require rear-yard
setback of over 300 feet. Associates' plan has a rear-yard setback of seventy-five feet. In addition, the plan
does not comply with two parking design standards of the zoning ordinance.
Associates applied to the Westwood Zoning Board of Adjustment (the Board) for design waivers for
the deviation from parking standards, and for a variance from the rear-yard and aggregate side-yard setback
requirements. At the public hearings held on the application, Associates' witnesses explained the reasons for
the plan's deviation from the rear- and aggregate-side-yard setback requirements. The witnesses testified
regarding the relatively low density of the proposed complex; how well-suited for apartments the site would
be; the fact that the complex would serve as an appropriate transitional use between the single-family
residence to the north and west of the lot and the more industrial uses to its south and east; and the fact that
the complex would be less intrusive to the existing residences than an office building.
The Board adopted a resolution granting the variance and the design waivers and made findings of fact
in support of the statutory special reasons standard. Coventry Square, Inc. (Coventry), an apartment
complex located near Associates' proposed site, filed an action in lieu of prerogative writ challenging the
validity of the Board's resolution. Coventry contended that Associates' failure to comply with the
conditional-use standards rendered its project a prohibited use within the zone, that Associates failed to meet
the stringent standards for a commercial-use variance establishing Medici v. BPR Co., and that the deviations
from parking specifications required variances, which the Board had no authority to grant on the evidence
presented.
The trial court upheld the Board 's resolution, finding that even a minor deviation from a condition
converted a conditional use into a prohibited use, thereby requiring Associates to satisfy the standards for a
use variance. The court, however, determined that housing is an inherently beneficial use, which satisfies the
special reasons standard for a use variance. The court also found that the Board's findings were sufficient to
meet the negative criteria for a use variance.
On appeal, the Appellate Division found that the apartment complex was not an "inherently beneficial"
use, but nevertheless affirmed the Board's decision. The Appellate Division found special reasons set forth
by the Board to support the grant of the variance and also determined that the record supported the Board's
conclusion that Associates' plan satisfied the negative criteria.
The Supreme Court granted Coventry's petition for certification.
HELD: The proof of special reasons that must be adduced by an applicant for a "d" variance from one or
more conditions imposed by ordinance in respect of the conditional use shall be proof sufficient to
satisfy the board of adjustment that the site proposed for the conditional use, in the context of the
applicant's full site plan, continues to be an appropriate site for the use despite the deviations from
one or more conditions imposed by the ordinance.
1. Generally, courts have treated a conditional use that does not comply with all of the conditions of the
ordinance as if it were a prohibited use, imposing on the applicant the same burden of proving special
reasons as would be applicable to use variances. That standard is inappropriate and does not adequately
reflect the significant differences between prohibited uses and conditional uses that do not comply with one
or more of the conditions imposed by ordinance. A conditional-use applicant's inability to comply with some
of the ordinance's conditions need not materially affect the appropriateness of the site for the conditional
use. The burden of proof required to sustain a use variance is too onerous for a conditional-use variance
and its focus is misplaced. Proofs to support a conditional-use variance need only justify the municipality's
continued permission for a use notwithstanding a deviation from one or more conditions of the ordinance.
(pp. 10-17)
2. A conditional-use variance applicant must show that the site will accommodate the problems associated
with the use even though the proposal does not comply with the conditions the ordinance established to
address those problems. (pp. 17-18)
3. In respect of the first prong of the negative criteria, that the variance can be granted without substantial
detriment to the public good, the focus is on the effect on surrounding properties of the grant of the variance
for the specific deviations from the conditions imposed by ordinance. In respect of the second prong of the
negative criteria, that the variance will not substantially impair the intent and purpose of the plan and zoning
ordinance, the board of adjustment must be satisfied that the grant of the conditional-use variance is in
accord with the municipality's legislative determination that the condition should be imposed on all
conditional uses in that zoning district. (p. 18-19)
4. The record supports the grant of a conditional-use variance from the aggregate-side-yard and rear-yard
setback requirements for Associates' apartment complex. The proofs satisfy the special-reasons standard by
demonstrating that the apartment use is suited to the proposed site despite its failure to comply with those
conditions. In addition, the record sustains the Board's conclusion that the negative criteria were satisfied
with respect to both variances. Moreover, the Board did not act arbitrarily or capriciously in granting the
requested design waivers. (pp. 19-22)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK, O'HERN and
STEIN join in JUSTICE GARIBALDI's opinion.
SUPREME COURT OF NEW JERSEY
A-
26 September Term l994
COVENTRY SQUARE, INC.,
Plaintiff-Appellant,
v.
WESTWOOD ZONING BOARD OF
ADJUSTMENT,
Defendant-Respondent,
and
WESTWOOD DEVELOPMENT ASSOCIATES,
Defendant.
Argued October ll, l994 -- Decided December 15, 1994
On certification to the Superior Court, Appellate
Division.
Richard J. Allen, Jr., argued the cause for appellant.
Irving C. Evers argued the cause for respondent.
The opinion of the Court was delivered by
GARIBALDI, J.
In this appeal, we establish the standards for granting a
variance for a "deviation from a specification or standard * * *
pertaining solely to a conditional use" under N.J.S.A. 40:55D-70d(3), of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1
to -133. In so doing, we discuss the criteria an applicant must
demonstrate to receive an N.J.S.A. 40:55D-70d(3) variance. Those
standards reflect the fact that a conditional use is neither
prohibited throughout the zone nor permitted at every location in
the zone: rather, it is permitted at those locations in the zone
where the use meets the conditions set forth in the zoning
ordinance. N.J.S.A. 40:55D-67. Because a conditional use is not
a prohibited use, we hold that it need not meet the stringent
special reasons standards for a commercial-use variance that we
summarized in Medici v. BPR Co.,
107 N.J. 1, 9-18 (1987).
We therefore distinguish between two types of variances: one
is a use variance; the other is a variance for a deviation from a
condition the ordinance places on a use in a given zone. They
are both "special reasons" variances under N.J.S.A. 40:55D-70d,
but their focus is different. A use variance allows the
applicant to engage in a prohibited use: It is the use that
violates the ordinance. A variance for a deviation from a
condition allows the applicant to engage in a conditional use
despite the applicant's failure to meet one or more of the
conditions: It is not the use but the non-compliance with the
conditions that violates the ordinance.
The applicant, Westwood Development Associates (Associates), planned to build an apartment complex in a zone in which apartments were a conditional use. (Associates defaulted and did not appear in the proceedings.) Because Associates' plan deviated from conditions imposing a minimum rear-yard setback and a minimum aggregate-side-yard setback, Associates applied to defendant Westwood Zoning Board of Adjustment (the Board) for a variance from those conditions.
Associates owns an 8.7-acre tract on Old Hook Road, Westwood, Bergen County. The lot is basically rectangular, with a depth of approximately 800 feet and a width of about 500 feet. The southerly lot line fronts on Old Hook Road, a four-lane, two-way county road. A cemetery is opposite the lot. Directly east of the cemetery on Old Hook Road is the apartment complex of plaintiff, Coventry Square.
The rear, northerly lot line of Associate's property abuts Pascack Road, across from which are single-family residences. East of the lot is a Red and Tan Bus Garage (a pre-existing, non-conforming use); east of the garage is Pascack Valley Hospital. The property's westerly lot line abuts the rear yards of single family residences fronting on Sand Road, a street that extends north from Old Hook Road to Pascack Road. There are currently pre-existing, non-conforming uses on Associates' lot: a laundromat, a dry cleaner, and a tank from which the public may purchase propane gas.
At the time Associates made its application to build an
eighteen-building, 216-unit apartment complex, its property was
located in the O3 zone, in which the permitted uses are office
buildings, medical laboratories, and research facilities.
Conditional uses in the O3 zone include certain schools,
hospitals, sports facilities, and apartments that comply with the
specifications of the AP zone. The AP zone, primarily a
residential zone, allows single family dwellings, essential
municipal uses, churches, home occupations, professional offices
occupying up to fifty percent of the first floor of residences,
and apartments for three or more families. The bulk
specifications of the AP zone are: minimum lot area of 15,000
square feet; minimum lot frontage of 150 feet; minimum lot depth
of 100 feet; minimum side yards of twenty feet each, with an
aggregate side yard of thirty percent of lot width; front-yard
setback of twenty feet; rear yard of forty percent of lot depth;
maximum building height of three stories and of thirty-five feet;
and maximum building coverage of thirty percent of the lot. The
AP zone also requires a minimum green area of thirty-five percent
of the lot area, and ten-foot buffers on the side and rear of the
lot where it abuts a residential zone. The ordinance does not
specify a maximum unit-per-acre density for the AP zone; however,
the minimum setbacks and maximum building-coverage specifications
presumably serve to prevent excessive density.
The apartment complex that Associates proposed to build would
meet all but two of the bulk specifications of the AP zone.
Specifically, the plan deviates from the rear-yard and the
aggregate side-yard setback requirements. The aggregate side
yard setback requirement is thirty percent of frontage, which
would be almost 150 feet. Associates' plan has side yards of
thirty-three feet each, for an aggregate of sixty-six feet. The
rear-yard setback minimum is forty percent of lot depth, which
would require a rear- yard setback of over 300 feet. The plan
has a rear-yard setback of seventy-five feet.
Associates' development also does not comply with two design
standards of Article IX of the zoning ordinance regarding
parking. That section of the ordinance requires thirty-foot
roadbeds where there is two-way traffic with parking
perpendicular to the roadway, § 65C-86E, and prohibits parking
off a "main drive," § 65C-86B. Associates proposed twenty-five-foot roadbeds accommodating two-way traffic with perpendicular
parking, as well as parking off its main drive.
Because of those deviations, Associates requested design
waivers for the deviations from parking standards, and a variance
from the rear-yard and aggregate-side-yard setback requirements.
At the four public hearings held on the application, Associates'
witnesses included its architect, planner, engineer, traffic
consultant, real estate appraiser, and landscaping and lighting
architect. An attorney for an owner of a house on Sand Road
appeared at the hearings to oppose the project. Plaintiff did
not appear at any of the hearings.
Associates' witnesses explained the reasons for the plan's deviation from the rear- and aggregate-side-yard setback requirements. First, they explained that the lot is so deep that a forty-percent-of-depth rear-yard minimum would require a rear-yard setback the length of a football field. Second, they noted that the plan places all parking in the interior of the project. If parking were on the perimeter, the side-yard and rear-yard setbacks would be measured from the lot lines to the beginning of the dwellings, and the setbacks would include the parking mews. The experts explained that, by placing the parking within the complex and the dwelling units closer to the perimeter, Associates reduced the yard measurements but also provided a landscaped, more aesthetic buffer for the neighboring residents than would exterior parking. Moreover, they explained that because the rear and side yards are entirely landscaped, the plan would readily comply with the ten-foot buffer requirements on the north and west sides of the lot, which abut residential zones. Third, the experts noted that the plan's side-yard design is much less intrusive to the Sand Road neighbors than the ordinance mandates. The ordinance requires side yards of at least twenty feet each, and aggregate side yards of at least thirty percent of the frontage. The witnesses observed that if a side yard abuts residences, the ten-foot-buffer requirement prohibits parking within the ten feet of the side yard closest to the residences. Hence, they noted that a plan that meets all the ordinances' conditions could have aggregate side yards of 150 feet, with a
130-foot easterly side yard abutting the bus garage, and merely a
twenty-foot westerly side yard abutting the residences on Sand
Road. Within that twenty-foot side yard, a complying plan could
have parking ten feet from the lot line, so that the neighboring
single-family residences would have cars from the complex as
close as ten feet from their property lines. Associates' plan
provides a thirty-three-foot landscaped buffer on each side, with
no parking in the buffer.
Associates' witnesses also emphasized that the density of
Associates' proposed complex is relatively low. Associates'
proposal would have a density of 24.8 units per acre; the range
of density for nearby complexes is 24.6 to 30.93 units per acre.
The Coventry Square complex has a density of 30.93 units per
acre. Moreover, because the complex would have landscaped area
on forty-six percent of the lot, it more than meets the AP
minimum of thirty-five percent landscaped area.
Additionally, the witnesses testified that the site was well
suited for apartments, which would serve as an appropriate
transitional use between the single-family residences to the
north and west of the lot and the more industrial uses to its
south and east. They also observed that the complex would be
less intrusive to the residences than a fully complying office
building would be.
The Board adopted a resolution granting the variances and the
design waivers, and made fact-findings in support of the
statutory special reasons standard:
(a) that the granting of the variance would
eliminate a pre-existing non-conforming use
and would replace the use with one more in
keeping with the Zone Plan;
(b) that multi-family housing would provide an
appropriate transitional use between the
residential section and non-residential
areas;
(c) that the variances sought by the applicant
relative to side-yard and rear-yard
requirements would permit a more pleasing
development, farther away from the streets;
(d) that the proposed development would be less
intrusive to the neighboring residential
properties than would be a complying office
project, which could occupy as much as
190,000 square feet;
(e) that to deny the request of the applicant for
rear-yard variances would require the
applicant to maintain rear yards in excess of
300 feet, a fact that the Board determined
was unnecessary and entirely illogical;
(f) that to deny the applicants the request for
side-yard variances would not permit the
applicant to provide the adjacent residential
area as much buffer area as proposed;
(g) that the proposed use would promote the
general welfare because the site is
particularly suitable for the use intended.
Coventry Square filed this action in lieu of prerogative writ
challenging the validity of the Board's resolution, and
contending that Associates' failure to comply with the
conditional-use standards rendered its project a prohibited use
within the zone. Conventry contended that Associates should have
met the stringent standards for a commercial-use variance
established in Medici, supra,
107 N.J. 1, and that Associates had
failed to produce such proofs. Coventry Square also argued that
the deviations from parking specifications also required
variances, and that the Board had no authority to grant such
variances based on the evidence presented.
The Law Division held that even a minor deviation from a
condition "converted" a conditional use into a prohibited use,
requiring Associates to satisfy the standards for a use variance.
The court, however, determined that housing is an inherently
beneficial use, which satisfies the "special reasons" standard
for a use variance. The court also found that the Board's
findings were sufficient to meet the negative criteria for a use
variance.
The Appellate Division found that the apartment complex was
not an "inherently beneficial" use, but nevertheless affirmed the
Board's decision. Noting that the Board's determination should
not be overturned unless it is arbitrary, unreasonable, or
capricious, the Appellate Division stated that "the special
reasons set forth by the Board support the grant of the
variances." The Appellate Division also found that the record
supported the Board's conclusion that the applicant had satisfied
the negative criteria. We granted Coventry Square's petition for
certification, l
36 N.J. 30 (l994), and now affirm the judgment of
the Appellate Division, but for reasons different from those
relied on by that court.
Conditional uses were not authorized prior to the enactment of the MLUL, but the Municipal Planning Act, N.J.S.A. 40:55-39b (repealed l975), authorized special-exception uses, the predecessor to conditional uses. That statute authorized only the board of adjustment to approve special-exception uses, and the board retained considerable discretion in the exercise of its authority. See Swimming River Golf & Country Club v. Borough of New Shrewsbury, 30 N.J. 132, 135-36 (1959); Saddle River Country Day Sch. v. Borough of Saddle River, 51 N.J. Super. 589, 604 (App. Div. 1958), aff'd, 29 N.J. 468 (1959).
Although special-exception uses were "neither non-conforming nor akin to a variance," Tullo v. Township of Millburn, 54 N.J. Super. 483, 491 (App. Div. 1959), the Municipal Planning Act established both affirmative and negative criteria for granting special exception uses. The affirmative criteria required the board to determine only that the project complied with the ordinance's requirements for the special-exception use. See
Verona, Inc. v. Mayor of West Caldwell,
49 N.J. 274, 284 (1967).
Hence, "[t]he basic difference between a use which is a special
exception and one which requires a variance is that the former is
legislatively permitted in a zone subject to controls whereas the
latter is legislatively prohibited but may be allowed for special
reasons." Id. at 282.
The substance of the negative criteria were the same for
special exceptions as for use variances: that the board of
adjustment could not approve an application "unless such relief
[could] be granted without substantial detriment to the public
good and will not substantially impair the intent and purpose of
the zone plan and zoning ordinance." N.J.S.A. 40:55-39 (repealed
1975). However, the level of proofs required to satisfy the
negative criteria for a special-exception use was acknowledged to
be less substantial than that required for a use variance because
"the ordinance itself makes the proposed [special-exception] use
permissive in the particular zone." Tullo, supra, 54 N.J. Super.
at 497 (referring to the zoning plan and ordinance prong of the
negative criteria); accord Verona, supra, 49 N.J. at 283
(referring to both prongs of the negative criteria).
The MLUL defines a conditional use as
a use permitted in a particular zoning district only
upon a showing that such use in a specified location
will comply with the conditions and standards for the
location or operation of such use as contained in the
zoning ordinance, and upon the issuance of an
authorization therefor by the planning board.
Hence, the MLUL shifted jurisdiction over fully complying
conditional uses from the board of adjustment to the planning
board, reflecting the MLUL's recognition that a fully complying
conditional use is essentially equivalent to a permitted use.
Generally, a conditional use is "suitable to a zoning
district but not to every location within that district."
Cardinal Properties v. Westwood,
227 N.J. Super. 284, 287 (App.
Div. 1988); see PRB Enters., Inc. v. South Brunswick Planning
Bd.,
105 N.J. 1, 8 (1987); Urban Farms, Inc. v. Borough of
Franklin Lakes,
179 N.J. Super. 203, 211 (App. Div.), certif.
denied,
87 N.J. 428 (1981); Tullo, supra, 54 N.J. Super. at 490-91; Value Oil Co. v. Town of Irvington,
152 N.J. Super. 354, 366
(Law Div. 1977), aff'd,
164 N.J. Super. 419 (App. Div. 1978),
certif. denied,
79 N.J. 501 (1979); Piscitelli v. Township Comm.
of Scotch Plains,
103 N.J. Super. 589, 595 (Law Div. 1968).
Conditional uses are "uses ordinarily requiring special standards
relating to traffic patterns, street access, parking, and the
like in order to assure their functional and physical
compatibility with the district as a whole and their appropriate
integration into the district." Exxon Co., U.S.A. v. Township of
Livingston,
199 N.J. Super. 470, 477 (App. Div. 1985).
The Municipal Planning Act did not specifically authorize
variances from special-exception-use standards. Case law under
that Act, however, suggested that a variance from a special
exception-use standard "would amount to a use variance * * *
which requires the existence of 'special reasons' as well as
meeting the negative criteria." Harvard Enters., Inc. v. Board
of Adjustment,
56 N.J. 362, 370 (1970) (Hall, J., concurring).
As originally enacted in 1975, the MLUL apparently adopted
the reasoning of Justice Hall's Harvard Enterprises concurrence.
Although the MLUL did not then explicitly state that conditional-use variances were to be treated as use variances under
subsection d, the MLUL authorized boards of adjustment to approve
conditional uses whenever the proposed development required
approval by the board of a variance under N.J.S.A. 40:58:70(d).
L. 1975, c. 291, § 63 (codified at N.J.S.A. 40:55D-76). In
Darrell v. Governing Body,
82 N.J. 426 (l980), we expressly held
that the MLUL empowered boards of adjustment to grant
conditional-use variances.
Because the 1979 amendments to the MLUL, L. 1979, c. 216,
created confusion over whether boards of adjustment or planning
boards had jurisdiction over conditional-use variances, the
Legislature amended the MLUL again in 1984. L. l984, c. 20.
That amendment clarified that only the board of adjustment could
grant conditional-use variances, and then only under the
standards of subsection d, which requires proof of special
reasons. However, the MLUL does not definitively establish the
quality of proof that would satisfy the special-reasons standard
in respect of conditional-use variances.
The standard for proving "special reasons," or the
affirmative criteria, has not been defined by statute, but
subsequent judicial interpretations have "infus[ed] substantive
meaning into the 'special reasons' standard * * * ." Medici,
supra, 107 N.J. at 11. "Because of the nature of the subject no
precise formula is feasible and each case therefore must turn on
its own circumstances." Kohl v. Mayor of Fair Lawn,
50 N.J. 268,
276 (1967).
In Medici, supra, we summarized the three circumstances that
constitute special reasons for use variances:
if the use for which a variance is sought is not one
that inherently serves the public good, the applicant
must prove and the board must specifically find that
the use promotes the general welfare because the
proposed site is particularly suitable for the proposed
use * * * . Alternatively, the statutory special
reasons standard can also be addressed by proof of
undue hardship, i.e., that the property cannot
reasonably be developed with a conforming use.
formulation of special reasons as requiring proof that "the
subject property was particularly suitable for the proposed
[prohibited] use").
The few cases that have specifically addressed the standard
for granting a conditional-use variance have treated it as if it
were indistinguishable from a variance for a prohibited use. In
White Castle Systems v. Planning Board,
244 N.J. Super. 688 (App.
Div. l990), certif. denied, l
26 N.J. 320 (l99l), the Appellate
Division determined that an applicant who had applied to the
planning board for conditional-use approval, but who did "not
comply with the conditional use lot-width requirement," 244 N.J.
Super. at 692, was required to apply to the board of adjustment
for a use variance and demonstrate proof of special reasons, id.
at 693. In Loscalzo v. Pini,
228 N.J. Super. 29l (App. Div.
l988), certif. denied, ll
8 N.J. 2l6 (l989), the applicant wished
to expand a commercial conditional use. The Appellate Division,
reversing the board of adjustment's grant of a variance, observed
that the standard of proof for conditional-use variances was the
same as that applicable to use variances. 228 N.J. Super. at
300. In Sugarman v. Township of Teaneck, 272 N.J. Super. l62
(App. Div.), certif. denied,
137 N.J. 310 (l994), the court
affirmed the board of adjustment's grant of a variance to a
synagogue to expand its conditional use. The court noted that
when an applicant does not comply with all the conditions for a
use, a "`d' variance is required even if the unsatisfied
conditions are physical features that ordinarily would require a
bulk variance." Id. at 171. The court concluded that the
synagogue was an inherently beneficial use, and affirmed the
board's grant of the variance on the basis that the board had
correctly applied the standard for inherently beneficial use
variances established in Sica v. Board of Adjustment, 127 N.J.
l52, 164 (l992). Sugarman, supra, 272 N.J. Super. at 172.
Thus, our courts generally have treated a conditional use
that does not comply with all the conditions of the ordinance as
if it were a prohibited use, imposing on the applicant the same
burden of proving special reasons as it would impose on
applicants for use variances. In our view, that standard is
plainly inappropriate and does not adequately reflect the
significant differences between prohibited uses, on the one hand,
and conditional uses that do not comply with one or more of the
conditions imposed by an ordinance, on the other hand. In the
case of prohibited uses, the high standard of proof required to
establish special reasons for a use variance is necessary to
vindicate the municipality's determination that the use
ordinarily should not be allowed in the zoning district. In the
case of conditional uses, the underlying municipal decision is
quite different. The municipality has determined that the use is
allowable in the zoning district but has imposed conditions that
must be satisfied. As evidenced by this record, a conditional-use applicant's inability to comply with some of the ordinance's
conditions need not materially affect the appropriateness of the
site for the conditional use. Accordingly, the standard of proof
of special reasons to support a variance from one or more
conditions imposed on a conditional use should be relevant to the
nature of the deviation from the ordinance. The burden of proof
required to sustain a use variance not only is too onerous for a
conditional-use variance; in addition, its focus is misplaced.
The use-variance proofs attempt to justify the board of
adjustment's grant of permission for a use that the municipality
has prohibited. Proofs to support a conditional-use variance
need only justify the municipality's continued permission for a
use notwithstanding a deviation from one or more conditions of
the ordinance.
The course of judicial development of variance standards reflects the need for criteria that are appropriate for specific types of variances. See Sica, supra, 127 N.J. at 155 (holding that enhanced standard of proofs for use variances does not apply where use is inherently beneficial); Burbridge v. Mine Hill Township, 117 N.J. 376, 387-89 (1990) (justifying less restrictive standard for proving special reasons to support expansion of existing non-conforming use than for new prohibited use); Medici, supra, 107 N.J. at 4 & n.1 (delineating acceptable special reasons for commercial-use variance). Accordingly, we here establish a standard for conditional-use variances that is appropriate for the purposes and characteristics of conditional uses.
We hold that the proof of special reasons that must be
adduced by an applicant for a "d" variance from one or more
conditions imposed by ordinance in respect of a conditional use
shall be proof sufficient to satisfy the board of adjustment that
the site proposed for the conditional use, in the context of the
applicant's proposed site plan, continues to be an appropriate
site for the conditional use notwithstanding the deviations from
one or more conditions imposed by the ordinance. That standard
of proof will focus both the applicant's and the board's
attention on the specific deviation from conditions imposed by
the ordinance, and will permit the board to find special reasons
to support the variance only if it is persuaded that the non-compliance with conditions does not affect the suitability of the
site for the conditional use. Thus, a conditional-use variance
applicant must show that the site will accommodate the problems
associated with the use even though the proposal does not comply
with the conditions the ordinance established to address those
problems.
The thrust of the proof addressed to the negative criteria is
similar. In respect of the first prong of the negative criteria,
that the variance can be granted "without substantial detriment
to the public good," N.J.S.A. 40:55D-70, the focus is on the
effect on surrounding properties of the grant of the variance for
the specific deviations from the conditions imposed by ordinance.
"The board of adjustment must evaluate the impact of the proposed
[conditional-] use variance upon the adjacent properties and
determine whether or not it will cause such damage to the
character of the neighborhood as to constitute "`substantial
detriment to the public good.'" Medici, supra, l07 N.J. at 22
n.l2 (quoting Yahnel, supra, 79 N.J. Super. at 5l9 (explaining
weighing function of board of adjustment in respect of negative
criteria)). In respect of the second prong, that the variance
will not "substantially impair the intent and purpose of the zone
plan and zoning ordinance," N.J.S.A. 40:55D-70(d), the board of
adjustment must be satisfied that the grant of the conditional-use variance for the specific project at the designated site is
reconciliable with the municipality's legislative determination
that the condition should be imposed on all conditional uses in
that zoning district.
We are persuaded that the record supports the grant of a conditional-use variance from the aggregate-side-yard and rear-yard setback requirements for Associates' apartment complex. Associates' site plan complied with the minimum side-yard requirement of twenty feet, but not the aggregate side-yard minimum of thirty percent of lot width, or 150 feet. Associates' proofs satisfy the special-reasons standard by demonstrating that the apartment use was suited to the proposed site despite its failure to comply with those conditions.
As noted, ante at ___ (slip op. at 3), although the property's easterly lot line abuts property containing a non-conforming bus garage, the property's westerly lot line abuts the
rear yards of residences fronting on Sand Road. Accordingly, a
plan complying with both individual and aggregate-side-yard
setback requirements could have provided a twenty-foot westerly
side yard and a l30 foot easterly side yard, affording less of a
buffer for the Sand Road residences but requiring no variances.
In addition, although the proposed site plan provides a thirty-three-foot landscaped buffer along the westerly lot line, the
ordinance permits parking within ten feet of the line.
Accordingly, the record provides ample support for the board's
finding that the proposed site plan, although requiring an
aggregate-side-yard setback variance, permits the applicant to
provide a larger buffer area than might have been provided by a
fully complying plan. Moreover, because the aggregate-side-yard
setback variance does not result in any less protection for
adjacent residential properties than would a complying plan, the
record supports a finding of special reasons to sustain that
variance: in the context of Associates' site plan, the site
continues to be appropriate for the conditional use
notwithstanding the deviation from the aggregate-side-yard
setback requirement. Supra at ___ (slip op. at ___).
We reach the same conclusion in respect of the variance for
the rear-yard setback requirement. Because the property is
almost 800 feet deep, the ordinance's rear-yard setback
requirement of forty percent of lot depth would have required a
rear-yard setback of over 300 feet, which the board characterized
as "unnecessary and entirely illogical." The board's findings
are amply supported by the record, which demonstrates that the
property's rear lot line abuts Pascack Road, and the nearest
residential dwellings are located across Pascack Road.
Accordingly, the record sustains the board's conclusion that the
seventy-five-foot rear-yard setback affords an adequate buffer
for the residences north of Pascack Road, and would also sustain
a finding that the deviation from the rear-yard setback
requirement renders the site no less appropriate for the
conditional use than would have been the case if the rear-yard
setback complied with the ordinance.
The record also sustains the board's conclusion that the
negative criteria were satisfied for both variances.
We deal only briefly with Coventry Square's claim that the
Board erred in granting the "design waivers" (which were actually
"exceptions") concerning roadway and parking specifications.
Because the board of adjustment has concurrent jurisdiction over
site-plan approval when the proposed development requires
approval of a variance, N.J.S.A. 40:55D-76b, it also has the
power to grant exceptions or waivers from site-plan requirements
in appropriate cases. See N.J.S.A. 40:55D-5lb. We are fully
satisfied, as was the Appellate Division, that the Board did not
act arbitrarily or capriciously in granting the requested design
waivers.
Finally, we note that Coventry Square's attorney informed us
by letter that during the pendency of this appeal, Westwood
amended its ordinance to provide that apartments are now a
prohibited use, not a conditional use, in the zone. Any issues
raised by those amendments are not before us and we do not
address them.
The judgment of the Appellate Division is affirmed.
Chief Justice Wilentz and Justices Clifford, Handler,
Pollock, O'Hern, and Stein join in this opinion.
NO. A-26 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
COVENTRY SQUARE, INC.,
Plaintiff-Appellant,
v.
WESTWOOD ZONING BOARD OF
ADJUSTMENT,
Defendant-Respondent,
and
WESTWOOD DEVELOPMENT ASSOCIATES,
Defendant.
DECIDED December 15, 1994
Chief Justice Wilentz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY