TSI East Brunswick, LLC v. Zoning Bd. of Adjustment of Twp. of East Brunswick, Clarifies Standard Of Proof Applicable To Negative Criteria For Conditional Use Variances
On July 23, 2013, the New Jersey Supreme Court clarified the appropriate standard of proof that an applicant must establish in order to obtain a conditional use variance under the Municipal Land Use Law (“MLUL”), N.J.S.A. 40:55D-70(d). In TSI East Brunswick, LLC v. Zoning Bd. of Adjustment of Twp. of East Brunswick, N.J. (July 23, 2013), the Court determined whether the applicant must prove the negative criteria by the enhanced standard established in Medici v. BRP Co., 107 N.J. 1 (1987).
The applicant, New Vornado/Saddle Brook LLC (“New Vornado”) proposed to operate a health club which is a conditional use in the zone. Therefore, New Vornado was required to comply with the conditions in the ordinance, including that the boundary of the lot cannot be located within 500 feet of any residence. This condition was not satisfied and required New Vornado to seek a conditional use variance, also known as a (d)(3) variance. The zoning board granted the Application for a conditional use variance.
A health club operator on an adjacent property was the principal objector to New Vornado’s application and argued that New Vornado’s use was prohibited, requiring a (d)(1) use variance. Subsequent to the approval of the application, the adjacent health club operator commenced this action. The trial court upheld the zoning board’s decision on the grounds that the variance was properly considered as a (d)(3) conditional use variance, New Vornado had satisfied the positive and negative criteria and the zoning board’s grant of the conditional use variance was not arbitrary, capricious or unreasonable.
On appeal to the Appellate Division, the plaintiff argued that the application should have been tested against the standards of a (d)(1) use variance and that the zoning board erred by not requiring the applicant to prove the negative criteria by enhanced quality of proofs under Medici. The Appellate Division affirmed the trial court’s decision, but did not directly address the enhanced quality of proof issue.
The New Jersey Supreme Court, granted certification to determine the quality of proof required to satisfy the negative criteria for an applicant seeking a (d)(3) conditional use variance. In an opinion by Justice Hoens, the Court held that the enhanced quality of proof standard of Medici does not apply. Rather, the relaxed standard established in Coventry Square, Inc. v. Westwood Bd. of Adj., 138 N.J. 285 (1994), applies to both the positive and negative criteria for evaluating a conditional use variance.
The Court reasoned that the analyses for a (d)(1) use variance and a (d)(3) conditional use variance are fundamentally different. The use variance proceeds in the context of a use that the governing body has prohibited, whereas the conditional use variance proceeds in the context of a use that, if it complies with certain conditions, is permitted. New Vornado’s failure to comply with one of the ordinance’s conditions did not convert its proposed use into a prohibited one. Additionally, if the Medici standard for considering the negative criteria were applied in the conditional use context, the distinction between a conditional use variance, and a use variance would be effectively erased, transforming the (d)(3) analysis into a (d)(1) analysis.
The zoning board properly applied the test established in Coventry Square, weighing the proofs as to the negative criteria in order to determine whether, notwithstanding the failure of one of the conditions, the proposal was reconcilable with the zone.
The full text of the decision is available at: http://www.judiciary.state.nj.us/opinions/supreme/A12411TSIEastBrunswickvZoningBd.pdf