Coventry Square, Inc. v. Westwood Zoning Board of Adjustment

Citations: 650 A.2d 340; 138 N.J. 285; 1994 N.J. LEXIS 1172

Court: Supreme Court of New Jersey; December 15, 1994; New Jersey; State Supreme Court

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The Supreme Court of New Jersey addressed the standards for granting a variance for deviations from conditional use specifications under N.J.S.A. 40:55D-70d(3) of the Municipal Land Use Law. The Court clarified that conditional uses are not universally prohibited or permitted within a zone; rather, they are allowed only where specific zoning ordinance conditions are satisfied. As such, a conditional use does not require the stringent "special reasons" criteria applicable to use variances, as established in Medici v. BPR Co. The Court differentiated between two types of variances: use variances, which permit prohibited uses, and variances for deviations from conditions, which allow conditional uses despite non-compliance with specific ordinance requirements.

In this case, Westwood Development Associates sought a variance from the Westwood Zoning Board of Adjustment due to its plan for an 18-building, 216-unit apartment complex failing to meet minimum rear-yard and aggregate-side-yard setback conditions. The property, located in the O3 zone where apartments are a conditional use, had existing non-conforming uses, including a laundromat and a propane tank. The Court noted the zoning context, indicating that while the O3 zone allows certain uses, compliance with specific conditions is necessary for the approval of conditional uses.

Key specifications for the AP zone include a minimum lot area of 15,000 square feet, minimum lot frontage of 150 feet, minimum lot depth of 100 feet, and minimum side yards of twenty feet each, with an aggregate side yard requirement of thirty percent of lot width. The front-yard setback is twenty feet, the rear-yard setback is forty percent of lot depth, the maximum building height is three stories (or thirty-five feet), and maximum building coverage is thirty percent of the lot. Additionally, a minimum green area of thirty-five percent of the lot area and ten-foot buffers on the sides and rear adjacent to residential zones are mandated. 

Associates' proposed apartment complex meets most bulk specifications but deviates from the rear-yard setback and aggregate side-yard setback requirements. The ordinance requires a rear-yard setback of over 300 feet; however, the plan proposes a setback of only seventy-five feet. Furthermore, the aggregate side-yard setback requirement of thirty percent of frontage (approximately 150 feet) is not met, as the plan provides an aggregate of sixty-six feet. 

Associates’ development also fails to comply with two design standards from Article IX of the zoning ordinance regarding parking: it proposes a twenty-five-foot roadbed for two-way traffic instead of the required thirty feet, and it includes parking off the main drive, contrary to the ordinance. Consequently, Associates requested design waivers for these deviations and a variance for the rear-yard and side-yard setbacks.

During four public hearings, Associates presented several witnesses, including an architect, planner, and traffic consultant, to support their application. An opposing attorney representing a neighbor appeared, while the plaintiff did not attend any hearings. Associates’ representatives argued that the deep lot necessitated a lesser rear-yard setback and that parking was placed within the project to enhance aesthetics and reduce intrusion on neighboring properties. They maintained that their design would effectively incorporate landscaped buffers, complying with the ten-foot buffer requirement adjacent to residential areas, and would be less intrusive than the ordinance's mandates on side yards.

A plan compliant with local ordinances permits aggregate side yards of 150 feet, including a 130-foot easterly side yard adjacent to a bus garage and a twenty-foot westerly side yard next to residences on Sand Road. Within the twenty-foot side yard, parking can be as close as ten feet from property lines, potentially placing vehicles near neighboring homes. The Associates' proposal includes a thirty-three-foot landscaped buffer on each side without parking, and maintains a density of 24.8 units per acre, which is consistent with nearby complexes ranging from 24.6 to 30.93 units per acre. The complex features 46% landscaped area, exceeding the required 35%. Witnesses argued that the site is suitable for apartments, providing a transitional use between residential and industrial areas, and would be less intrusive than a conforming office building. The Board granted variances and design waivers citing several reasons: the plan would eliminate a non-conforming use, the multi-family housing would transition well between zones, variances would enhance development aesthetics, and denying variances would result in excessive rear yard requirements. Coventry Square challenged the Board’s resolution, claiming Associates failed to meet conditional-use standards and required variances for parking deviations. The Law Division ruled that even minor deviations necessitate stricter variance standards but acknowledged housing as an inherently beneficial use satisfying the "special reasons" standard. While the Appellate Division disagreed with the "inherently beneficial" classification, it affirmed the Board's decision, stating the Board's rationale for granting variances was not arbitrary or capricious.

The Appellate Division affirmed the Board's finding that the applicant met the negative criteria for special-exception uses. Coventry Square's petition for certification was granted, and the court's reasoning differed from the Appellate Division's. Prior to the MLUL, special-exception uses were authorized under the Municipal Planning Act, which granted the board of adjustment significant discretion in their approval. Unlike non-conforming uses or variances, special exceptions required the board to ensure compliance with established ordinance requirements. While both special exceptions and use variances shared similar negative criteria—ensuring no substantial detriment to public good or impairment of zoning intentions—the proof burden for special exceptions was less stringent due to their permissive nature under the ordinance. The MLUL later transitioned the approval authority for fully complying conditional uses from the board of adjustment to the planning board, recognizing these uses as akin to permitted uses but suitable only in specific locations within a zoning district.

Conditional uses necessitate adherence to specific standards regarding traffic, access, and parking to ensure compatibility with the surrounding district. The Municipal Planning Act does not explicitly permit variances from special-exception-use standards. Case law suggests that such a variance constitutes a use variance, which requires "special reasons" and meeting negative criteria. Initially, the Municipal Land Use Law (MLUL) adopted this reasoning without explicitly designating conditional-use variances as use variances. However, the MLUL empowers boards of adjustment to approve conditional uses requiring a variance under N.J.S.A. 40:55D-70(d). 

Confusion arose from the 1979 amendments regarding jurisdiction over conditional-use variances, leading to a 1984 clarification that only the board of adjustment could grant such variances under subsection d, which mandates proof of special reasons. The MLUL lacks a definitive standard for what constitutes sufficient proof of special reasons, which has been shaped by judicial interpretation. The courts have identified three special reasons for use variances: 1) the proposed use must promote general welfare if it does not inherently serve the public good; 2) proof of undue hardship if the property cannot be reasonably developed with a conforming use; 3) the property must be particularly suited for the proposed use. Generally, uses that meet the special-reasons standard are institutional rather than commercial, such as schools, hospitals, and public housing. The hardship concept is viewed as the inability of the property to serve permitted uses, while the "particularly suited" requirement necessitates a finding that the use benefits the general welfare due to its fit with the location.

The standard for granting a conditional-use variance has been treated similarly to that for a variance related to a prohibited use in several court cases. In *White Castle Systems v. Planning Board*, the Appellate Division held that an applicant failing to meet a conditional-use requirement must seek a use variance and provide special reasons. In *Loscalzo v. Pini*, the court noted that the proof standard for conditional-use variances is the same as for use variances. Conversely, in *Sugarman v. Township of Teaneck*, the court affirmed a variance for a synagogue, emphasizing that noncompliance with conditional use requirements necessitates a variance, even if the conditions are physical and usually necessitating a bulk variance. The court recognized the synagogue as an inherently beneficial use and confirmed that the board applied the correct standard for such variances.

Generally, courts have treated noncompliant conditional uses as equivalent to prohibited uses, imposing a similar burden of proof for special reasons. This approach is deemed inappropriate as it does not reflect the differences between prohibited uses and conditional uses with unmet conditions. While prohibited uses require a stringent proof standard to challenge municipal disallowance, conditional uses are allowable but subject to specified conditions. Therefore, the proof standard for a conditional-use variance should align with the nature of the deviation, as the burden of proof for use variances is excessively high and misdirected. Conditional-use variance proofs should merely justify continued municipal permission despite deviations from ordinance conditions.

The judicial development of variance standards emphasizes the necessity for tailored criteria based on the type of variance sought. The enhanced proof standards for use variances are not applicable when the use is inherently beneficial. A less stringent standard is justified for proving special reasons for expanding existing non-conforming uses compared to new prohibited uses. This establishes a standard for conditional-use variances that aligns with their specific purposes and characteristics. An applicant for a "d" variance must demonstrate that the site remains suitable for the conditional use despite deviations from ordinance conditions. This includes showing that the site can handle the challenges associated with the use, even when not adhering to established conditions. 

The evaluation of negative criteria requires the board of adjustment to assess the variance's impact on surrounding properties, ensuring it does not cause substantial detriment to the public good. Additionally, the variance must not significantly impair the intent of the zoning plan and ordinance. The record supports granting a conditional-use variance for Associates' apartment complex, which complies with the minimum side-yard requirement but not the aggregate side-yard minimum. Associates successfully demonstrated that the apartment use is appropriate for the site despite these non-compliances, noting its proximity to both a non-conforming bus garage and the rear yards of residential properties.

A compliant site plan could have included a twenty-foot westerly side yard and a 130-foot easterly side yard, providing less buffer for nearby Sand Road residences while avoiding variances. The proposed plan includes a thirty-three-foot landscaped buffer along the westerly lot line, with parking allowed within ten feet. The board found that, despite requiring an aggregate-side-yard setback variance, the proposed plan offers a larger buffer than a fully compliant plan. The variance does not diminish protection for adjacent residential properties, supporting a finding of special reasons for its approval. 

Regarding the rear-yard setback, the board deemed the required over 300-foot setback impractical given the property's depth and its proximity to Pascack Road, where the nearest residences are located across the road. The board concluded that a seventy-five-foot rear-yard setback adequately buffers these residences, affirming the site's appropriateness for its conditional use despite the variance. The board's findings indicated that the negative criteria for both variances were met. 

Additionally, the board's granting of design waivers, treated as exceptions for roadway and parking specifications, was within its jurisdiction and not arbitrary or capricious. Lastly, it was noted that Westwood amended its ordinance to prohibit apartments in the zone during the appeal, but these changes were not addressed in this judgment. The Appellate Division's judgment is affirmed, with unanimous support from the justices.