(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).
of Springfield (A-92-98)
Argued November 8, 1999 -- Decided February 9, 2000
STEIN, J., writing for a majority Court.
In this appeal, the Court addresses the extent to which a previously granted use variance to an applicant
operating a retail business use binds the municipality to permit the applicant's transferee, engaged in a different retail
business use, to succeed to the rights conferred by the use variance.
Stop & Shop Supermarket Company (S&S) sought to open and operate a retail supermarket on property in
the Township of Springfield previously owned by Saks Fifth Avenue (Saks) and occupied since 1956 by Saks' retail
department store. S&S filed suit to challenge the determination of the Springfield Board of Adjustment (Board) that
S&S cannot rely on the use variance granted to Saks by the Board in 1956 to permit parking on the residentially
zoned portion of the lot, and in 1968 to permit construction of an addition to the store on that same part of the lot.
The Springfield portion of the property was split-zoned into two portions: residential and commercial.
From 1957 until 1968, the department store was a 64,000 square-foot structure located entirely within the
commercial zone, and the accessory parking was located partly in the commercial zone and, pursuant to the 1956 use
variance, partly in the residential zone. Pursuant to a second use variance in 1968, Saks was permitted to construct a
19,000 square foot addition to its building, of which 13,000 square feet were located in the residentially-zoned
portion of the property.
In granting the 1956 use variance to Saks, the Board concluded that the residentially-zoned portion of the
Saks property was unsuitable for residential development; that the property's “highest and best use” would be
achieved by the grant of the use variance to integrate development of the entire property for retail commercial use;
and that the proposed use would promote that general welfare and preserve and enhance property values by
removing the danger of haphazard and inconsistent residential development. In 1968, the Board granted the second
use variance noting that the area in question was no longer suited for residential use and that Saks provided shopping
of a quality not otherwise available in the community.
In 1994, S&S was informed by the Zoning Officer that it could not rely on the previously-granted use
variances to operate its retail supermarket on Saks' property. S&S was notified that it could either seek a new
variance, rezoning of the property, or Board review of the Zoning Officer's determination. S&S appealed to the
Board pursuant to N.J.S.A. 40:55D-70 (a) and (b) of the Municipal Land Use Law, contending that it was entitled to
rely on the use variances previously granted to Saks.
At the conclusion of hearings held in 1996, the Board voted to sustain the Zoning Officer's conclusion that
S&S required a new use variance to operate its supermarket on the Saks property. The Board's resolution noted that
S&S declined to offer proofs concerning a qualitative comparison between the previously approved use of the
residentially-zoned property and the newly proposed use of that property. The Board concluded that S&S failed to
demonstrate that the business it intends to operate on the property is of a similar nature, kind, or use intensity to that
of the Saks operation and thus S&S cannot rely on the previously-granted use variances.
S&S filed a complaint in lieu of prerogative writ challenging the Board's decision. The Colonial
Association of Springfield, comprised of residents potentially affected by the proposed use, and the Township of
Millburn were permitted to intervene as defendants. The trial court reversed the Board's determination as an abuse
of discretion, ruling that S&S did not need a new use variance to operate a supermarket on the property. In reaching
its determination, the court reasoned that the question whether S&S's use of property was qualitatively similar to
Sak's use was irrelevant; that the category under which both types of retail services fell were not distinguished in the
zoning ordinance; and that use variances are not personal to the owner, but run with the land.
On appeal, the Appellate Division reversed the decision of the trial court, finding that the differences
between the two enterprises precluded reliance on the previously-granted use variances.
The Supreme Court granted S&S's petition for certification.
HELD: The 1956 variance that permitted Saks to use the residentially-zoned portion of its property for parking
accessory to its department store use, and the 1968 variance that permitted Saks to expand its building into
the residentially-zoned portion of its property, are applicable to and may be relied on by S&S in its
proposed use of the property for a retail supermarket.
1. For most commercial use variance applications, the required proof of special reasons focuses exclusively on the
special characteristics of the property and imposes on the applicant the burden of establishing either that the
proposed use will serve the general welfare because the use is peculiarly fitted to the particular location for which the
variance is sought, or that undue hardship exists because the property for which the use variance is sought cannot
reasonably be adapted to a conforming use. Variances run with the property and are not personal to the applicant;
thus, successors in title may avail themselves of the previously-granted use variance. (pp. 15-23)
2. Notwithstanding the prospect of a more intense use of the property and the obvious distinction between the
enterprises carried on by a supermarket and by a retail department store, the decisive factor is the municipal
ordinance in effect when S&S submitted its application. That ordinance treated the two uses identically - retail
department stores and retail food stores fall under the same use category in the ordinance. (pp. 24-27)
3. The Court's disposition is supported by its decision last term in Rogers v. Zoning Board of Adjustment of the
Village of Ridgewood. Moreover, the objectors' reliance on the “very upscale” and “very expensive” quality of
Saks merchandise and its “dignified” atmosphere fails to take into account the possibility that Saks could have sold
its property to a less “dignified” department store whose hours, volume and traffic patterns could have been far more
intrusive on the neighborhood than the Saks store. (pp. 27-29)
4. The question is not whether the successor use is “essentially duplicative” of the use for which the variance was
granted, as suggested by the dissent, but rather, whether, considering all relevant factors, the successor use is
sufficiently similar to the variant use to afford it the benefit of the variance. In this case, the parking lot use for
which the variance was granted remains unchanged, except that it will be a use accessory to a supermarket rather
than a department store. By classifying those two uses identically in its zoning ordinance, the Township of
Springfield has demonstrated that the distinction does not constitute a valid basis for denying S&S the benefit of the
prior variances. (pp. 29-30)
Judgment of The Appellate Division is REVERSED and the matter is REMANDED to the Township of
Springfield for further proceedings consistent with this opinion.
JUSTICE COLEMAN, dissenting, in which JUSTICE GARIBALDI joins, is of the view that the
question should be whether the new owner's intended use of the land so significantly differs from the variant use as
to unreasonably affect a legitimate land use purpose. Justice Coleman would affirm the decision of the Board
because S&S failed to present evidence showing that its intended use of the property is significantly similar in kind,
nature, or use intensity to the retail merchandising conducted by Saks, in terms of the qualitative nature and intensity
of use of the parking lot. Because S&S failed to show that its proposed use does not represent a substantial change
in the variant use, a new application to the Board was required.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, LONG and VERNIERO join in JUSTICE
STEIN'S opinion. JUSTICE COLEMAN filed a separate dissenting opinion in which JUSTICE GARIBALDI
joins.
SUPREME COURT OF NEW JERSEY
A-
92 September Term 1998
THE STOP & SHOP SUPERMARKET
COMPANY, a corporation of the State
of Delaware and STATE STREET BANK
AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely as
Trustee under a Trust Agreement
dated as of April 26, 1994,
Plaintiffs-Appellants,
v.
THE BOARD OF ADJUSTMENT OF THE
TOWNSHIP OF SPRINGFIELD, COLONIAL
ASSOCIATION OF SPRINGFIELD and THE
TOWNSHIP OF MILLBURN,
Defendants-Respondents,
and
VILLAGE SUPER MARKET, INC., a
corporation of the State of New
Jersey and SUMAS REALTY
CORPORATION, a corporation of the
State of New Jersey,
Intervenors-Respondents.
Argued November 8, 1999 -- Decided February 9, 2000
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
315 N.J. Super. 427 (1998).
James V. Segreto argued the cause for
appellants (Sigrid & Sigrid, attorneys; Mr.
Sigrid and Paul A. Sigrid, on the brief).
Roger S. Clapp argued the cause for
respondent The Township of Millburn (Cooper,
Rose & English, attorneys; Mr. Clapp and
Bruce S. Goodman, on the brief).
Stephen E. Barcan argued the cause for
intervenors-respondents, Village Super
Market, Inc. and Sumas Realty Corporation
(Wilentz, Goldman & Spitzer, attorneys; Mr.
Barcan and Donna M. Jennings, on the briefs).
Neil J. Dworkin argued the cause for
respondent The Board of Adjustment of the
Township of Springfield.
Michael S. Feldman argued the cause for
respondent Colonial Association of
Springfield (Wasser & Feldman, attorneys).
The opinion of the Court was delivered by
STEIN, J.
The principal issue presented by this appeal concerns the
extent to which a previously granted use variance to an applicant
conducting a retail business use binds the municipality to permit
the applicant's transferee, engaged in a different retail
business use, to succeed to the rights conferred by the use
variance. Stating the question more narrowly, where the prior
use variance allowed a retail department store, a permitted use,
to use the residentially-zoned portion of its split-zoned lot for
parking as a use accessory to the permitted retail use, is the
benefit of that use variance for parking available to a retail
supermarket, the department store's transferee, whose proposed
use also constituted a permitted retail use under the ordinance?
In a published opinion, the Appellate Division, reversing
the judgment of the Law Division holding that the retail
supermarket succeeded to the rights conferred by the earlier use
variance, determined that the differences between the two
enterprises precluded reliance on the earlier variance. Stop &
Shop v. Board of Adj. of Springfield,
315 N.J. Super. 427, 436-37
(1998). That court observed that “[i]n granting these variances,
the Board considered only the specific enterprise proposed by
Sak's in its application. . . . [A]ny proposed, significant
change or alteration in the use of the property required further
consideration by the board of adjustment.” Id. at 435.
We granted Stop & Shop's petition for certification,
158 N.J. 687 (1999), and now reverse the judgment of the Appellate
Division.
The relevant facts essentially are undisputed. Stop & Shop (S&S) instituted this suit to challenge the determination of the Springfield Board of Adjustment (Board or Board of Adjustment) that S&S, which seeks to open and operate a retail supermarket on property previously owned by Saks Fifth Avenue (Saks) and occupied since 1956 by Saks' retail department store, cannot rely on use variances granted by the Board in 1956 to permit parking on the residentially-zoned portion of the lot, and in 1968 to permit construction of an addition to the store on that same part of the lot.
The property in controversy consists of approximately 9.7 acres with about six-hundred feet of frontage on Millburn Avenue, a heavily-traveled county road occupied in the vicinity of the property by a variety of retail commercial uses. Although the portion of the property located within twenty feet of Millburn Avenue is located in Millburn Township, the bulk of the property is located in Springfield. During all relevant periods (other than the period subsequent to April 1999, when a new zoning ordinance took effect, infra at (slip op. at 14-15)), the Springfield portion of the property was split-zoned in approximately equal parcels, the portion closest to Millburn Avenue to a depth of about two-hundred feet being commercially zoned and the southerly portion being residentially zoned. When Saks obtained its variance in 1956, the commercially zoned portion was in the General Business (GB) District in which a “Retail store or group thereof” was a permitted use. In 1956 the residentially zoned portion, having an average depth of 120 feet, was zoned S-120, a single-family residence zoning district requiring 120 feet of frontage, and front and rear yard setbacks of fifty feet and seventy-five feet respectively.
In 1994 when S&S applied for a certificate of occupancy, the commercially-zoned portion of the property was zoned General Commercial (GC), in which “Retail Sales and service stores” were a permitted use. The ordinance defined “Retail Sales and Services” as follows:
The sale of goods for use or consumption off the premises, which goods are intended to meet direct consumer food, clothing, furnishing, recreational or other needs and are not intended for resale, and/or the sale of services such as personal care, financial, repair, catering and other similar services. The term “retail sales and service” shall specifically exclude the sale of any type of motor vehicle, as defined by N.J.S.A. 39:1-1.
That supermarkets are a permitted use in the GC zone under the ordinance in effect prior to 1999 is not disputed, and off-street parking is a permitted accessory use in that zone. At some time subsequent to 1956 the residentially-zoned portion of the property was rezoned from S-120 to S-75.
The property was occupied by Saks' retail department store from approximately 1957 to 1994. Until 1968 the department store was a 64,000 square-foot structure located entirely within the commercial zone, and the accessory parking was located partly in the commercial zone and, pursuant to the 1956 use variance, partly in the S-120 residential zone. Pursuant to a second use variance granted in 1968, Saks was permitted to construct a 19,000 square foot addition to its building, of which 13,000 square feet were located in the residentially-zoned portion of the property.
The residentially-zoned portion of the property is abutted on its southerly and south-easterly boundaries by older residential dwellings located in the S-60 residential zone requiring sixty feet of frontage and an area of 7500 square feet. Those dwellings front on Baltusrol Avenue and Short Hills avenue, local streets running nearly parallel with Millburn Avenue, and on Tower Drive, a local street perpendicular to Millburn Avenue but bounded by Baltusrol Avenue to the north and Short Hills Avenue to the south.
In 1956 Saks applied to the Board of Adjustment for a use variance to permit the residentially-zoned portion of the property to be used for vehicular parking that was accessory to the Saks department store proposed to be constructed on the commercially-zoned portion of the property. The proposed parking area would accommodate 750 cars. The application initially was considered by the Board at its regular meeting on January 26, 1956. (The record before us includes the minutes of the pertinent meetings of the Board, as well as the Board's resolution, but does not include a transcript of the hearings conducted by the Board.) At the initial Board meeting the concerns of residents near the property focused on the lack of complete building and site plans for the proposed project, and on whether Baltusrol Avenue, a dedicated public street with an unpaved segment that extended onto the Saks property, would be vacated and dead-ended outside the property's boundary or, alternatively, paved to provide ingress to and egress from the proposed parking area. Most residents favored vacating the unpaved portion of Baltusrol Avenue to prevent traffic generated by the department store from creating a burden on local streets.
The Board's formal action on the application was deferred until its March 22, 1956 meeting to permit a site inspection. At that meeting the Board unanimously approved the Saks use variance. The Board's resolution included findings by the Board that the residentially-zoned portion of the Saks property was unsuitable for residential development. Specifically, the Board noted that because the depth of the property's residential portion was approximately 120 feet and the S-120 residential zone required front and rear yard setbacks of fifty and seventy-five feet respectively, the residential portion of the property was “incompatible with the depth requirements for the zone.” In addition to the insufficiency of its depth, the Board concluded that “the residence zoned portion of the subject premises [does] not lend [itself to] the construction of houses” because “it would abut immediately on a business zone,” the construction of homes contemplated by the S-120 zone is “incompatible with the established patterns of homes in the [abutting] residential area,” and, finally, because residential development would require paving and extension of Baltusrol Avenue resulting in the use of that street by “large scale commercial and other vehicular traffic,” that development would be incompatible with residential uses in the area. The Board concluded that the property's “highest and best use” would be achieved by the grant of the use variance and the “integrated development” of the entire parcel for the proposed retail commercial purpose because it would “promote the general welfare” and “preserve and enhance property values” by removing the danger of residential development that is “haphazard and inconsistent” with the surrounding area. The grant of the variance was conditioned on the closing of Baltusrol Avenue at the property line, construction of a ten-foot buffer strip along the rear of lots fronting on Tower Drive, and construction of a six-foot fence around that portion of the property's perimeter that abuts residential development.
In 1968 Saks applied for and was granted a second variance to extend its department store building, formerly confined entirely to the GC zone, into the S-120 residential zone. The Board's resolution determined that “since the store is located where it is, the area into which applicant seeks to extend the store is no longer suited for residential use.” In addition, the Board found that “[t]he Saks Fifth Avenue store provides shopping of a quality not otherwise available in the community, and . . . from the evidence adduced that to maintain such quality standards the requested expansion is necessary.” The 1968 variance contained additional conditions regarding adjacent roadways, parking, plantings and shrubs, buffer strips, lighting and fencing. As was the case with the original resolution, however, no conditions were imposed limiting or defining the scope of the retail use permitted under the variance. Saks' 1968 variance application stated that an addition of 30,400 square feet was proposed, and that the existing building occupied approximately 64,000 square feet. Although the Board approved the entire addition sought by Saks, the record reveals that the size of the expanded building aggregates 83,000 square feet, of which approximately 13,000 square feet is in the residentially-zoned portion of the property. That suggests that the addition constructed by Saks pursuant to the 1968 variance was about 19,000 square feet, of which 6000 square feet was in the commercially-zoned part of the property.
In May 1994 counsel to S&S wrote a letter to the Springfield Zoning Officer seeking a determination that S&S would be permitted to use the Saks property for a retail supermarket. S&S proposed two alternative plans. One proposal contemplated the use of the existing 83,000 square foot existing structure, with some modifications that would not increase the existing square footage. The second proposal contemplated a new structure consisting of approximately 85,000 square feet, of which approximately 4,400 square feet would be located in the residentially-zoned portion of the property. The letter noted that a retail supermarket is a permitted use in the GC zone, and requested the zoning officer's confirmation that S&S would not require any variances if it proceeded under either of the proposed alternatives. Counsel to the Board of Adjustment replied to S&S's letter on behalf of the Zoning Officer. That response informed S&S that it could not rely on the prior Saks variances, and that S&S either should seek a new variance, rezoning of the property, or review of the Zoning Officer's determination from the Board of Adjustment. S&S appealed to the Board from the Zoning Officer's determination pursuant to N.J.S.A. 40:55D-70(a) and (b), contending that it was entitled to rely on the use variances previously granted to Saks. The Board conducted hearings on S&S's appeal in February and April 1996.
At the hearings S&S produced Ken Narva, an architect, who testified concerning the layout of the existing structure and the shape and size of the proposed new structure S&S would construct under its alternative plan. That new structure would have a “footprint” of approximately 73,200 square feet and would include two storage mezzanines totaling about 12,000 additional square feet. Approximately 4400 square feet would be located in the residentially-zoned portion of the property, substantially less than the Saks building that included over 13,000 square feet in the residential zone. The proposed building would include seven fully enclosed loading docks, compared with one open loading dock at the existing building. The proposed S&S plan contemplates 493 parking spaces, compared to 547 parking spaces on the existing building site.
Cynthia Fuller, a twenty-nine-year resident of Millburn and a frequent patron of Saks as well as area supermarkets, testified as a joint witness for several objectors. She testified that the merchandise sold by Saks was “very upscale. Mainly women's clothing, and in my opinion, very expensive.” She testified that Saks also sold cosmetics, and operated a restaurant as well as a beauty parlor. She recalled that the Saks store was open on Monday and Thursday evenings and, in recent years, on Sunday afternoons. She described the store's atmosphere as “dignified,” characterizing it as “[n]o hustle-bustle or that type of thing.” She testified that the Saks parking lot never was completely filled and that, typically, she could find a parking space very near to the store's entrance. She testified that traffic conditions on Millburn Avenue were especially heavy during rush hour and on Saturdays.
At the conclusion of the hearings the Board voted six to one to sustain the zoning officer's conclusion that S&S required a new use variance to operate its supermarket on the Saks property. The Board's resolution noted that S&S declined “to offer proofs concerning a qualitative comparison between the previously approved use of the residentially-zoned property and the newly proposed use of the residentially-zoned property.” The Board concluded that S&S failed to demonstrate “that the supermarket business it intends to operate on the property . . . is of a similar nature, kind, or use intensity to that of the Saks operation and thus cannot be included or permitted under the variances previously granted for Saks Fifth Avenue.”
S&S filed a complaint in lieu of prerogative writ challenging the Board's decision. The Colonial Association of Springfield, comprised of Springfield residents potentially affected by the proposed use, and the Township of Millburn were permitted to intervene as defendants. In an unpublished opinion the trial court reversed the Board's determination as an abuse of discretion, ruling that S&S did not need a new use variance to operate a supermarket on the property.
The court determined that whether S&S's use of the property was qualitatively similar to Saks' use was irrelevant because the specific concerns cited by the board -- S&S's longer hours of operation, greater number of loading docks, and greater number of customers -- were ordinarily addressed in the site plan review process. The court noted that from a land-use perspective, the Springfield zoning ordinance does not distinguish between types of "retail and service stores," the category under which both supermarkets and department stores fall. Therefore, the court observed, the same zoning requirements apply to both types of use. The court also noted that variances are not personal to the owner, but run with the land.
The Springfield Board of Adjustment, the Township of Millburn, and the Colonial Association of Springfield appealed the judgment of the Law Division. Prior to argument, the Appellate Division permitted Village Super Market, Inc. and Sumas Realty Corporation to intervene in the action. The Appellate Division reversed the trial court's judgment, observing that "a use created by a variance may not be expanded or substantially changed without further application to the board of adjustment." 315 N.J. Super. at 431. The court concluded that "[i]n granting these variances, the Board considered only the specific enterprise proposed by Sak's in its application." Id. at 435. "[A]ny proposed, significant change or alteration in the use of the property required further consideration by the board of adjustment." Ibid.
As noted, in April 1999, subsequent to the judgment of the Appellate Division and prior to argument before this Court, Springfield enacted an amendment to its zoning ordinance establishing an Affordable Housing Mixed Use (AH-MU) zone, the boundaries of which are identical to the boundaries of S&S's property. No other property in Springfield is located in the AH MU zone. Permitted uses in the AH-MU zone include senior citizen housing, with twenty percent of the units reserved for low and moderate-income senior citizens. Also permitted are commercial uses allowed in the Neighborhood Commercial zone, but no commercial establishment can exceed 7000 square feet in gross floor area. Moreover, not more than thirty percent of any property in the AH-MU zone shall be used for commercial purposes, and no commercial use or parking accessory to a commercial use shall be further than two-hundred feet from Millburn Avenue. S&S has challenged the validity of that ordinance in a separate suit now pending in the Law Division, alleging in part that the amendatory ordinance constituted “spot-zoning,” and that its proposed use of the property unlawfully would be prohibited by the terms of the amendatory ordinance. Concurrently with the filing of this opinion, we grant the motion of Intervenor Village Super Market, Inc. to supplement the record with the provisions of the amendatory ordinance.
A brief review of certain basic principles of zoning law may illuminate our analysis of the issues implicated by this appeal. New Jersey's first zoning statute was enacted in 1924, L. 1924, c. 146, and was modeled after the standard state zoning statute drafted by the United States Department of Commerce. Our 1924 statute authorized local boards of adjustment to grant variances “not [] contrary to the public interest,” to avoid “unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.” L. 1924, c. 146, § 7(3). See Commercial Realty and Resources Corp. v. First Atlantic Properties Co., 122 N.J. 546, 553-54 (1991). In the early stages of zoning legislation, courts expressed the concern that without a procedure permitting the grant of variances, zoning ordinances could be vulnerable to constitutional challenge. In Brandon v. Montclair, 124 N.J.L. 135, 142-43 (Sup. Ct.), aff'd, 125 N.J.L. 367 (E. & A. 1940), the court observed:
Due to the necessity of generality in the subdivision of the municipality into districts under the zoning power, especial hardship ofttimes ensues unnecessarily and unreasonably to individual landowners; and the function of the board of adjustment under the statute is, through a variance, to relieve from such consequences, and thus to avert what would otherwise take the category of an unwarranted interference with the right of private property. Such use restrictions are not reasonable unless fairly necessary for the attainment of one or more of the intents set forth in section 40:55-32, supra; and, while the general regulation may be reasonable, its application in the individual case, by reason of special conditions, may constitute an unnecessary and unjust invasion of the right of property. In such circumstances, the board of adjustment is invested with power to vary the application of the general regulation to serve the statutory policy.
[(citation omitted).]
See also Somers v. Bradley Beach, 115 N.J.L. 135, 138-40 (E. & A. 1935) (describing variance power of board of adjustment as “an essential adjunct to a zoning ordinance,” and invalidating local zoning ordinance because of omission of authorization for special exception and variance appeals to board of adjustment); accord, Note, Zoning Variances, 74 Harv. L. Rev. 1396 (1961) (observing that variance power originally was considered necessary to protect zoning ordinances from constitutional objection).
Our caselaw firmly establishes the nature of the proofs necessary to constitute “special reasons,” the statutory standard that authorizes the grant of use variances. N.J.S.A. 40:55-70d. In one narrow class of cases, those involving inherently beneficial uses, the proofs supporting special reasons focus less on the characteristics of the specific property and to a greater extent on whether the proposed use furthers the general welfare because the institutional character of the use fulfills a necessary or significant public purpose. See Medici v. BPR Co., 107 N.J. 1, 11-12 (1987). Nevertheless, the proponent of an inherently beneficial use variance also must address the statutory negative criteria and prove that on balance the public benefit outweighs any impairment to the zone plan and zoning ordinance or any detriment to the neighborhood. Sica v. Board of Adj. of Wall, 127 N.J. 152, 165-66 (1992). Accordingly, if the proofs demonstrate that because of the specific property's location and characteristics the detrimental effects of an inherently beneficial use outweigh the public benefit, a municipality is authorized to deny the requested variance. Id. at 166.
By far the more common category of use variance applications concerns commercial uses that are not inherently beneficial. For such variance applications, the required proof of special reasons focuses exclusively on the special characteristics of the property and imposes on the applicant the burden of establishing
either “that the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought,” Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 279 (1967), or that undue hardship exists because the property for which the use variance is sought cannot reasonably be adapted to a conforming use. Medici, supra, 107 N.J. at 17 n.9. We note that the 1956 resolution of the Springfield Board of Adjustment granting the original Saks variance relied on both of those permissible grounds for a commercial use variance, determining that the residential portion of the Saks property was best suited for “integrated” development with the commercial portion for use as a retail department store, and that exceptional and undue hardship existed because of that property's unsuitability for residential use.
Similarly, our cases make clear that in respect of appeals for bulk or dimensional variances based on undue hardship pursuant to N.J.S.A. 40:55-39c(1), “personal hardship is irrelevant to the statutory standard, and . . . the correct focus must be on whether the strict enforcement of the ordinance would cause undue hardship because of the unique or exceptional conditions of the specific property.” Lang v. Board of Adj. of North Caldwell, 160 N.J. 41, 53 (1999).
The constitutional concerns that prompted the inclusion of a variance appeal procedure in the early versions of zoning ordinances, combined with the property-specific focus of the proofs that ordinarily must be elicited to support commercial use variances, provide the rationale for the widely accepted principle of zoning law that “a variance granted becomes attached to the land and is not a mere personal right, and a purchaser takes the land free from those zoning restrictions to which the variance pertains.” Eugene McQuillin, The Law of Municipal Corporations, § 25.163 (3d ed. 1991). In Industrial Lessors, Inc. v. City of Garfield, 119 N.J. Super. 181, certif. denied, 61 N.J. 160 (1972), the Appellate Division expressly recognized that characteristic of variances:
A variance, however, is an official quasi-legislative, quasi-judicial determination that the use or structure allowed is not offensive to the ordinance in the broad context of the particular circumstances which, under the statutory criteria specified by N.J.S.A. 40:55-39, have authorized the grant. In essence, the use or structure allowed becomes a conforming use. 2 Rathkopf, The Law of Planning and Zoning (3d ed. 1972), 46-1. Although a variance can perhaps be lost by abandonment, see North Plainfield v. Perone, 54 N.J. Super. 1, 12-13 (App. Div. 1959) certif. den. 29 N.J. 507 (1959) it otherwise partakes to a large degree of the characteristics of a vested right running with the land. 2 Rathkopf, op. cit.
[Id. at 183.]
Other New Jersey cases have emphasized that use variances
adhere to the property and are not personal to the applicant.
See, e.g., Soho Park Land Co. v. Board of Adj. of Belleville, 6
N.J. Misc., 686, 687 (Sup. Ct. 1928) (invalidating condition
attached to use variance allowing construction of industrial
building in residential zone that limited building to use “solely
as a wire factory” by applicant for variance, noting that
condition constituted “restraint on alienation” that would affect
value of property); Aldrich v. Schwartz,
258 N.J. Super. 300, 308
(App. Div. 1992) (noting that “[v]ariances run with the land and
are not personal to the property owner who obtained the grant”);
Berninger v. Board of Adj. of Midland Park,
254 N.J. Super. 401,
405 (App. Div. 1991), aff'd
127 N.J. 226 (1992) (noting that “a
condition [that] limits the life of a variance to ownership by a
particular individual is patently illegal, as it advances no
legitimate land use purpose”); DeFelice v. Board of Adj. of Point
Pleasant Beach,
216 N.J. Super. 377, 383 (App. Div. 1987)
(holding that “a variance runs with the land and is not personal
to the property owner”); Farrell v. Estell Manor Bd. of Adj.,
193 N.J. Super. 554, 558 (App. Div. 1984) (stating that “[a] variance
granted is not personal to the owner to whom granted but is
available to the grantee's successors”).
The caselaw throughout the country, consistent with our
decisions, recognizes that variances run with the land and that
their benefit is available to the applicant's successors in
title. See Garibaldi v. Zoning Bd. of Appeals of Norwalk,
303 A.2d 743, 745 (Conn. 1972); National Black Child Development
Institute, Inc. v. District of Columbia Bd. of Zoning Adj.,
483 A.2d 687, 691-92 (D.C. App. 1984); Halifax Area Council on
Alcoholism v. City of Daytona Beach,
385 So.2d 184, 188 n.5 (Fla.
App. 1980); Huntington v. Zoning Bd. of Appeals of Hadley,
428 N.E.2d 826, 829-830 (Mass. App. 1981); State v. Konopka,
200 N.E.2d 695, 696 (Ohio App. 1963); Vlahos Realty Co. v. Little
Boar's Head,
146 A.2d 257, 260 (N.H. 1958); Mechem v. City of
Santa Fe,
634 P.2d 690, 694 (N.M. 1981); St. Onge v. Donovan,
522 N.E.2d 1019, 1022-23 (N.Y. 1988); Neiburger v. Lewis,
57 N.Y.S.2d 542, 544-45 (N.Y.Sup. 1945); Mastrati v. Strauss,
67 A.2d 29, 30-31 (R.I. 1949); Nuckles v. Allen,
156 S.E.2d 633,
637-38 (S.C. 1967); Goldberg v. City of Milwaukee Bd. of Zoning
Appeals,
340 N.W.2d 558, 561-62 (Wis. App. 1983). Accord, Robert
M. Anderson, American Law of Zoning, § 14.29 (1968); Rathkopf,
The Law of Zoning and Planning, § 38.07 (4th ed. 1994); Rohan,
Zoning and Land Use Control, § 43.03 (1984); Yokley, Zoning Law
and Practice, § 21-2 (4th ed. 1979); Phillip P. Green Jr., The
Power of The Zoning Board of Adjustment to Grant Variances From
the Zoning Ordinance,
29 N.C. L. Rev. 245, 278 (1951); Note,
Zoning Variances, supra,
74 Harv. L. Rev. at 1398.
Perhaps the clearest explanation of the principle that the
specific representations and circumstances of the successful
applicant for a use variance cannot be permitted to limit the
availability of the variance to successors in title is found in
an opinion by the New York Court of Appeals in Dexter v. Town
Board of Gates,
324 N.E.2d 870 (N.Y. 1975). In Dexter, the
applicant successfully sought rezoning of a twelve-acre
residentially-zoned tract of land to permit its development as a
retail shopping center. In rezoning the property, the Town Board
imposed as a condition that the rezoning would inure only to the
benefit of the applicant and only for the specific use
contemplated by the application. In invalidating that condition,
the New York Court of Appeals distinguished between the
representations made to encourage rezoning or variance grants and
the proper scope of the action taken by the municipal agency:
While it is a fundamental principle of
zoning that a zoning board is charged with
the regulation of land use and not with the
person who owns or occupies it, we recognize
that customarily, as is here illustrated,
when a change of zone, a variance or a
special permit is sought, there is a specific
project sponsored by a particular developer
which is the subject of the application. As
a practical matter, the application is
usually predicated on a particular type
structure, often accompanied by architectural
renderings, for a particular use by a
specific intended user. In the usual case,
the application and accompanying graphic
material come to constitute a series of
representations frequently bolstered at the
hearing by additional promises or assurances
made to meet objections there raised.
Throughout, attention focuses on the
reputation of the applicant and his
relationship to the community and the
particular intended use. And all too often
the administrative or legislative
determination seems to turn on the identity
of the applicant or intended user, rather
than upon neutral planning and zoning
principles.
The error in this approach, however, is
lack of adherence to the fundamental rule
that zoning deals basically with land use and
not with the person who owns or occupies it.
While it is proper for a zoning board to
impose appropriate conditions and safeguards
in conjunction with a change of zone or a
grant of a variance or special permit, such
conditions and safeguards must be reasonable
and relate only to the real estate involved
without regard to the person who owns or
occupies it.
[Id. at 871 (citations omitted).]
We hold that the 1956 variance that permitted Saks to use
the residentially-zoned portion of its property for parking
accessory to its department store use, and the 1968 variance that
permitted Saks to expand its building into the residentially
zoned portion of its property, are applicable to and may be
relied on by S&S in its proposed use of the property for a retail
supermarket. That holding does not imply that all successors in
interest to property that has benefitted from a use variance may
assert the rights accorded by that variance, and we shall address
in this opinion the considerations that may justify limitations
on a successor's right to rely on a use variance. Nor are we
insensitive to the contentions of respondents that S&S's proposed
use may involve longer hours, more traffic, and a greater volume
of business than did the Saks use.
Notwithstanding the prospect of a more intense use of the
property, and the obvious distinction between the businesses
carried on by a department store and by a supermarket, the factor
that is decisive to our disposition is that the municipal
ordinance in effect when S&S submitted its application treated
the two uses identically. Pursuant to the 1993 Springfield Land
Use Ordinance, the following eleven uses were permitted in the GC
zone: (1) Church or other place of worship parish house, Sunday
school, church school; (2) Municipal building or use; (3) Public
School, park, playground or other quasi-public use; (4) Retail
sales and service stores; (5) Business and professional offices;
(6) Medical offices and immediate medical care facilities; (7)
Bank and financial institutions; (8) Private schools; (9) Indoor
movie theater; (10) Shopping centers containing any of the above
permitted uses; (11) Child care center. The ordinance's
definition of “Retail Sales and Services,” supra at (slip op.
at 5), includes the “sale of goods for use or consumption off the
premises, which goods are intended to meet direct consumer food,
clothing . . . or other needs . . . .” (emphasis added). That
Springfield classifies both retail department stores and retail
food stores under the same permitted use category in its zoning
ordinance establishes beyond dispute that the two uses are
sufficiently congruent to make available the variances obtained
by the department store use for the proposed supermarket use.
Other considerations support that legal conclusion. Our
cases recognize the applicability of the doctrine of res judicata
to the decisions of boards of adjustment. See Bressman v. Gash,
131 N.J. 517, 526-27 (1993); Russell v. Tenafly Bd. of Adj.,
31 N.J. 58, 65-66 (1959). We observed in Bressman that “[a]s a
general rule, an adjudicative decision of an administrative
agency 'should be accorded the same finality that is accorded the
judgment of a court.'” 131 N.J. at 526 (quoting Restatement
(Second) of Judgments § 83 comment b (1982). Although our
application of res judicata to board of adjustment proceedings
has not been rigid, Russell, supra, 31 N.J. at 65-67, we cannot
ignore the clarity and decisiveness of the Springfield Board of
Adjustment's finding in 1956 that “the residence zoned portion of
the subject premises [does] not lend [itself to] the construction
of houses,” and its finding in 1968 that “since the store is
located where it is, the area into which applicant seeks to
extend the store is no longer suited for residential use.”
When the Springfield Board determined in 1996 that S&S was
required to seek new variances, the only variances required were
the right to use the residentially-zoned portion of the property,
now zoned S-75 rather than S-120, for parking (under S&S's first
alternative proposal), and the right to use the residentially
zoned part of the property for a smaller portion of building area
that was used by Saks (under S&S's second alternative proposal).
In our view, the Board could not reasonably be permitted to
contradict its earlier findings that residential development of
the residentially-zoned portion of the property was inappropriate
because “it would abut immediately on a business zone;” that
residential development would be “incompatible with the
established patterns of homes in the [abutting] residential
area,” and that the “highest and best use” of the residential
parcel would be achieved by the “integrated development” of the
entire parcel for a retail commercial use. Nor could the Board
justifiably rescind its 1956 conclusion that the statutory
negative criteria had been satisfied in that the use of the
residentially-zoned portion of the property for accessory parking
would not substantially impair the zone plan or be substantially
detrimental to the public good. We infer that the force of the
reasoning underlying those findings has been strengthened by the
passage of more than forty years during which the residentially
zoned portion of the premises continuously has been used for
retail commercial purposes.
Our disposition of this appeal also is supported by our
decision last term in Rogers v. Zoning Board of Adjustment of the
Village of Ridgewood,
158 N.J. 11 (1999). In Rogers we
invalidated an ordinance of the Village of Ridgewood that
required all non-conforming sign structures that were accessory
to primary commercial uses to be removed if the primary use was
changed. The ordinance was challenged when the Village attempted
to cause the removal of a non-conforming sign because a building
previously occupied as an insurance office would in the future be
occupied by a nail salon, both uses being permitted by the
Village ordinance. Affirming the Appellate Division's
invalidation of the ordinance,
309 N.J. Super. 630 (1998), which
in turn relied on Judge Skillman's dissent in Camara v. Board of
Adjustment of Belleville,
239 N.J. Super. 51, 61 (App. Div.
1990), we held that the Village ordinance could not deprive the
property owner of the statutory protection afforded to non
conforming accessory structures, N.J.S.A. 40:55D-68, merely
because of a change from one permitted primary use to another.
Because uses granted by variance enjoy a higher status under our
law than do non-conforming uses, see Industrial Lessors, supra,
119 N.J. Super. at 183, the Township of Springfield cannot be
permitted to afford less protection to the use variance for
accessory parking on the S&S property than the Village of
Ridgewood was required to afford to accessory non-conforming
signs. In both instances, the change from one permitted use to
another does not permit the municipality to terminate the
accessory use, whether it be non-conforming or the result of a
use variance.
We also note that the objectors' reliance on the “very
upscale,” “very expensive” quality of the Saks merchandise and
its “dignified” atmosphere fails to take into account the
possibility that Saks could have sold its property during the
intervening years to less “dignified” department store retailers
whose hours of operation, sales volume, and traffic patterns
might have been far more intrusive on the neighborhood than was
the Saks operation. That possibility of Saks' sale, or its own
conversion, to a busier, more intense retail department store use
-- which indisputably could rely on the earlier variances -
points up the wisdom of the warning sounded by the New York Court
of Appeals in Dexter, supra, 324 N.E.
2d at 871, that “all too
often the administrative . . . determination seems to turn on the
identity of the applicant or intended user, rather than upon
neutral planning and zoning principles.” The lesson is that in
granting use variances boards of adjustment must anticipate that
users in the same use category as the applicant, but with
different merchandising characteristics, may someday occupy the
property and claim the benefit of the prior variance. The
question is not whether the successor use is “essentially
duplicative” of the use for which the variance was granted, as
our dissenting colleagues suggest, post at ___ (slip op. at 10),
but rather whether, considering all relevant factors, the
successor use is sufficiently similar to the variant use to
afford it the benefit of the variance. In this case, the parking
lot use for which the variance was granted remains unchanged,
except that it will be a use accessory to a supermarket rather
than a department store. The Township of Springfield, by
classifying those two uses identically within its zoning
ordinance, has demonstrated that the distinction does not
constitute a valid basis for denying Stop & Shop the benefit of
the prior variances.
We emphasize that the municipality is not powerless to
address the specific problems that may be presented by S&S's
proposed use of the property. Pursuant to the Municipal Land Use
Law (MLUL), N.J.S.A. 40:55D-1 to -129, municipal planning boards
possess a broad reservoir of authority to review and approve site
plan applications, N.J.S.A. 40:55D-50, and to insure compliance
with the provisions of the local site plan ordinance. See
N.J.S.A. 40:55D-41. Such review typically encompasses such
issues as location of structures, vehicular and pedestrian
circulation, parking, loading and unloading, lighting, screening
and landscaping. We anticipate that the Springfield Planning
Board, informed by the concerns of residents in the vicinity of
the property, will impose appropriate conditions and restrictions
on S&S's proposed development and use of the property in order to
minimize any intrusion on or inconvenience to the continued use
and enjoyment of those neighboring residential properties.
IV
We note that a more difficult issue suggested by this appeal, which we need not resolve, is the standard that a municipality should apply in determining what limits it may properly impose on the right of a successor in title to enjoy the benefit of a use variance granted to a prior owner of the property. That issue appears to be one of first impression, and we find no cases decided by our courts or in the courts of other states that illuminate our analysis.
That question is simplified where, as here, the successor use either is identical to the prior use or is placed in the same use category by the municipal zoning ordinance. However, if the use for which the prior variance was granted is less common than a retail or office use, and is a use not included among the permitted uses in the ordinance, the determination whether a successor in interest has the right to use the property for a different use, but one with characteristics that are comparable to the use granted by variance, may be difficult indeed. A variance to permit an indoor tennis court to operate in a residential zone may fairly be claimed by a successor in title intending to offer racquetball, squash, and an indoor pool, but the claim would be more tenuous if the next successor proposes to operate a bowling alley serving food and drink on the premises.
At its outer limits resolution of the issue may be elusive, but we reject as too restrictive our dissenting colleague's standard requiring the successor or use to be “essentially duplicative” of the variant use. Post at ___ (slip op. at 10). We anticipate that local zoning boards and officials will fairly consider in their discretionary determinations the functional similarities and differences between the uses at issue, whether in accordance with sound planning principles the proposed use generally would be includable in the same use classification as the use for which the variance was granted, as well as whether the board that granted the initial variance reasonably could have anticipated that its scope could encompass the use subsequently proposed. Too restrictive an interpretation of the scope of a prior variance could diminish unreasonably the value of property assumed to have enjoyed the benefit conferred by the earlier variance. Soho Park Land Co., supra, 6 N.J. Misc. at 687. Skilled counsel to Boards of Adjustment should inform their clients that in deliberating on use variance applications recognition should be given to the prospect that successor owners may propose to use the property for uses different from but related to the use for which the variance is sought.
Finally, although we granted the motion of two Intervenors to supplement the record with the provisions of the 1999 amendments to the Springfield Zoning Ordinance, those amendments, even if they survive the challenge now pending in the Law Division, cannot affect S&S's right to develop and use the property. If the amendatory ordinance is sustained, S&S's proposed retail use would be protected by the MLUL as a nonconforming use. See N.J.S.A. 40:55D-68.
We reverse the judgment of the Appellate Division and remand the matter to the Township of Springfield for further proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, LONG, and VERNIERO joinin JUSTICE STEIN's opinion. JUSTICE COLEMAN has filed a dissenting opinion, in which Justice Garibaldi joins.
SUPREME COURT OF NEW JERSEY
A- 92 September Term 1998
THE STOP & SHOP SUPERMARKET
COMPANY, a corporation of the State
of Delaware and STATE STREET BANK
AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely as
Trustee under a Trust Agreement
dated as of April 26, 1994,
Plaintiffs-Appellants,
v.
THE BOARD OF ADJUSTMENT OF THE
TOWNSHIP OF SPRINGFIELD, COLONIAL
ASSOCIATION OF SPRINGFIELD and THE
TOWNSHIP OF MILLBURN,
Defendants-Respondents,
and
VILLAGE SUPER MARKET, INC., a
corporation of the State of New
Jersey and SUMAS REALTY
CORPORATION, a corporation of the
State of New Jersey,
Intervenors-Respondents.
Coleman, J., dissenting
The question presented by this appeal is not whether a
variance runs with the land, about which there is no debate. The
Appellate Division in this case acknowledged that “use variances
are not personal to the owner, but run with the land.” Stop &
Shop, supra, 315 N.J. Super. at 434. Rather, the question is
whether the new owner's intended use of the land so significantly
differs from the variant use as to unreasonably affect a
legitimate land use purpose. Berninger v. Board of Adjustment,
254 N.J. Super. 401, 405 (App. Div. 1991), aff'd o.b.,
127 N.J. 226 (1992). Unlike the majority, I would affirm the decision of
the Springfield Board of Adjustment (Board). Stop & Shop (S&S)
failed to present evidence showing that its intended use of the
property is significantly similar in kind, nature, or use
intensity to the retail merchandising conducted by Saks Fifth
Avenue (Saks), in terms of the qualitative nature and intensity
of use of the parking lot.
Absent proofs to the contrary, the Board could infer that
S&S's intended use of the premises to conduct business activities
related to the operation of a mega supermarket differs
substantially from Saks's operation of an upscale retail
department store. The Board also could reasonably infer that the
change in use will substantially increase vehicular and
pedestrian traffic and hours of operation that will have a
significant and unreasonable land use impact. I wholeheartedly
agree with the Appellate Division that because S&S failed to
demonstrate that its proposed use does not represent an
insubstantial change in the variant use, a new application to the
Board was required. Stop & Shop, supra, 315 N.J. at 431, 437.
Hence, I dissent from the majority's contrary holding.
In 1956, the Board granted a use variance permitting Saks to use the rear portion of the property for a parking lot accessory to its planned retail department store. The Board found that the rear portion of the property did not “practically lend [itself to] the construction of houses.” In 1968, the Board granted Saks another use variance, allowing it to extend the rear portion of its store into the residential zone. The Board found that the extension would not impair the value or use of the surrounding areas. Thus, Saks was granted a variance to operate a suburban department store with off-street parking in the rear.
S&S purchased the property in 1996 without any contingency, intending to construct and operate a mega supermarket. S&S applied to the Springfield Zoning Officer for a permit authorizing such use of the property. The officer denied the application, finding that S&S was required to apply to the Board for a new use variance. S&S appealed to the Board and sought a special question interpretation regarding the extent to which S&S was entitled to rely on the Saks variances. At the hearing, S&S presented a witness who testified that S&S intended to erect a new 85,443 square foot supermarket with seven loading docks. The existing building is 83,330 square feet with one loading dock. Three objectors testified, complaining mostly about the potential for increased truck and automobile traffic and noise.
On May 26, 1996 the Board concluded that S&S needed to apply for a new use variance. Specifically, the Board found that S&S “has not demonstrated . . . that the supermarket business it intends to operate on the property . . . is of a similar nature, kind or use intensity as that of the Saks operation. . . .” S&S appealed the Board's decision to the Law Division. A group of residents, called the Colonial Association, and the Township of Millburn, were allowed to intervene as defendants.
The Law Division ruled that the Board abused its discretion, and therefore, S&S did not need a new use variance. The court noted that most of the existing building is located in the commercial zone, where supermarkets are permitted by ordinance. Regarding the rear expanded portion of the store and the entire parking lot, both of which are located in the residential zone, the court concluded that S&S's proposed uses are in conformity with the variances previously granted to Saks. The court further found that whether S&S's use of the property was qualitatively similar to Saks's use