Advance at Branchburg II, LLC v. Twp. of Branchburg Bd. of Adjustment

• Decision Date: 01 November 2013
• Citation: 78 A.3d 589,433 N.J.Super. 247
• Parties: ADVANCE AT BRANCHBURG II, LLC, Plaintiff–Appellant, v. TOWNSHIP of BRANCHBURG BOARD OF ADJUSTMENT, a municipal public entity of the State of New Jersey, Defendant–Respondent.
• Court: New Jersey Superior Court

433 N.J.Super. 247

78 A.3d 589

ADVANCE AT BRANCHBURG II, LLC, Plaintiff–Appellant,

v.TOWNSHIP of BRANCHBURG BOARD OF ADJUSTMENT, a municipal public entity of the State of New Jersey, Defendant–Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 9, 2013.

Decided Nov. 1, 2013.

Katharine A. Muscalino argued the cause for appellant (Porzio, Bromberg & Newman, P.C., attorneys; Peter J. Wolfson, of counsel; Ms. Muscalino, Morristown, on the briefs).

Peter E. Henry argued the cause for respondent (Dillon, Bitar & Luther, L.L.C., attorneys; Mr. Henry, Morristown, of counsel and on the brief).

Mark S. Anderson argued the cause for amicus curiae Township of Branchburg (Woolson Sutphen Anderson, P.C., attorneys; Mr. Anderson, Somerville, and Angela C. Vidal, Warren, on the brief).

Before Judges GRALL, WAUGH, and NUGENT.

The opinion of the court was delivered by

WAUGH, J.A.D.

Plaintiff Advance at Branchburg II, LLC (Advance), appeals the Law Division's November 13, 2012 order dismissing its action in lieu of prerogative writs against the Township of Branchburg Board of Adjustment (Board). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Advance owns a 31.79–acre property in the Township's I–2 industrial zone. The property consists primarily of cleared land, with woods around the edges, and a wetland and riparian zone along Route 22. In addition to an office building on an adjacent lot, nearby uses include additional office and industrial buildings to the west and across Route 22, single-family homes, including those in the North Branch Hamlet and a mobile-home park, to the north and east, and public park land to the south.

Principal uses permitted in the I–2 zone include “[o]ffice buildings for executive, engineering and administrative purposes,” “[s]cientific and research laboratories,” “[w]arehousing,” “[a]ssembly and fabrication using previously manufactured components,” and “[a]gricultural uses.” Branchburg, N.J. Ordinance No.2008–1114 § 3–19. Conditional uses include “[g]overnmental uses and public utility facilities,” as well as principal uses that involve “extraordinarily hazardous substance facilities.” Ibid. Housing is not a principal or conditional use in the zone.

In August 2009, Advance filed an application with the Board seeking a use variance, N.J.S.A. 40:55D–70(d)(1), for construction of a multi-family residential development consisting of 292 units, of which fifty-nine would be affordable housing units. The development as proposed consists of twenty-eight buildings, including a mix of apartments, condominiums, and townhouses. Affordable housing units would be integrated with the market-rate units.

The Board took testimony and considered the application during eleven public hearings between July 2010 and July 2011. Advance argued before the Board that inclusion of the fifty-nine affordable units, approximately twenty percent of the total, rendered the entire development an inherently beneficial use for the purposes of the (d)(1) variance. The Board ultimately disagreed and framed its analysis of the application as a “classic, standard” (d)(1) variance, as opposed to one in which the positive criteria were satisfied by the inherently beneficial use. The Board voted to deny Advance's application at its meeting in July 2011, and memorialized its decision in a resolution adopted in September.

In October, Advance filed a complaint seeking to overturn the Board's denial of the (d)(1) variance. It also asserted claims of discriminatory zoning against the Board and Branchburg Township (Township). In those counts, Advance sought a builder's remedy under the Fair Housing Act, N.J.S.A. 52:27D–301 to –329.19.¹See Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 512, 803 A.2d 53 (2002). In April 2012, the Board and the Township moved for dismissal of the claims seeking the builder's remedy. The motion was granted in April.²

Following argument by counsel in October 2012, the trial judge placed an oral decision on the record explaining his reasons for upholding the Board's denial of the (d)(1) variance and dismissing Advance's amended complaint. The judge concluded that granting the (d)(1) variance requested by Advance would amount to awarding a builder's remedy through the variance process rather than through the mechanism established by the Fair Housing Act. He entered an implementing order on November 13. This appeal followed. We subsequently granted the Township's application to appear as amicus curiae.

II.

On appeal, Advance argues that (1) its proposed housing development is an inherently beneficial use in the context of a(d)(1) variance application, (2) the requested (d)(1) variance would not constitute zoning by variance or interfere with the Township's ability to plan for affordable housing, and (3) the trial judge erred in failing to find that the positive criteria outweighed the negative criteria even if the proposed development is not inherently beneficial. Before addressing the merits of the case, we outline the law that governs our consideration of this appeal.

A.

Our standard of review for the grant or denial of a variance is the same as that applied by the Law Division. Bressman v. Gash, 131 N.J. 517, 529, 621 A.2d 476 (1993). We defer to a municipal board's factual findings as long as they have an adequate basis in the record. Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58, 733 A.2d 464 (1999); Fallone Props., LLC v. Bethlehem Twp. Planning Bd., 369 N.J.Super. 552, 562, 849 A.2d 1117 (App.Div.2004). We are ordinarily not bound by an agency's determination on a question of law, In re Distrib. of Liquid Assets, 168 N.J. 1, 11, 773 A.2d 6 (2001), and a municipal board's construction of its own ordinances is reviewed de novo. Nevertheless, we “recognize the board's knowledge of local circumstances and accord deference to its interpretation.” Fallone, supra, 369 N.J.Super. at 562, 849 A.2d 1117;accord DePetro v. Twp. of Wayne Planning Bd., 367 N.J.Super. 161, 174, 842 A.2d 266 (App.Div.), certif. denied,181 N.J. 544, 859 A.2d 689 (2004). Like the trial judge, we may not “substitute [our] own judgment for that of the municipal board invested with the power ... to pass upon the application.” Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J.Super. 1, 4, 357 A.2d 55 (App.Div.1976).

Where an applicant's proposal for a variance is denied, the applicant bears “the heavy burden of proving that the evidence presented to the board was so overwhelmingly in favor of the applicant that the board's action can be said to be arbitrary, capricious or unreasonable.” Med. Realty Assocs. v. Bd. of Adjustment of Summit, 228 N.J.Super. 226, 233, 549 A.2d 469 (App.Div.1988). This is because “more is to be feared in the way of breakdown of zoning plans from grants than denials of variances.” Galdieri v. Bd. of Adjustment of Morris, 165 N.J.Super. 505, 515, 398 A.2d 893 (App.Div.1979).

In Kinderkamack Road Associates, LLC v. Mayor & Council of Borough of Oradell, 421 N.J.Super. 8, 12–13, 22 A.3d 129 (App.Div.2011), we reiterated that

[b]ecause of the legislative preference for municipal land use planning by ordinance rather than variance, use variances [under N.J.S.A. 40:55D–70(d)(1) ] may be granted only in exceptional circumstances. E.g., Nuckel v. Borough of Little Ferry Planning Bd., 208 N.J. 95 [26 A.3d 418 (2011) ] (acknowledging this preference); Funeral Home Mgmt., Inc. v. Basralian, 319 N.J.Super. 200, 207 (App.Div.1999) (stating that “only exceptional cases warrant use variances”). Therefore, a municipal board of adjustment may permit “a use or principal structure in a district restricted against such use or principal structure” only where the applicant can demonstrate “special reasons” for the variance. N.J.S.A. 40:55D–70(d)(1). This requirement is known as the “positive criteria.” New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 160 N.J. 1, 6, 733 A.2d 442 (1999). In addition, a variance application must meet the “negative criteria,” ibid., by “showing that [the] variance can 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. 40:55D–70(d).

Regarding the positive criteria, the Court has stated that “ ‘special reasons' takes its definition and meaning from the general purposes of the zoning laws” enumerated at N.J.S.A. 40:55D–2. Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 386, 568 A.2d 527 (1990) (citing Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 279, 234 A.2d 385 (1967)). In Saddle Brook Realty, LLC v. Township of Saddle Brook Zoning Board of Adjustment, 388 N.J.Super. 67, 76, 906 A.2d 454 (App.Div.2006), we observed three situations in which “special reasons” may be found:

(1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility; (2) where the property owner would suffer “undue hardship” if compelled to use the property in conformity with the permitted uses in the zone; and (3) where the use would serve the general welfare because the proposed site is particularly suitable for the proposed use.

[ (Internal citations and quotation marks omitted).]

....

All use variance applicants must satisfy the first prong of the negative criteria, which requires proof that “the variance can be granted ‘without substantial detriment to the public good.’ ” [Medici v. BPR Co., 107 N.J. 1, 22 n. 12, 526 A.2d 109 (1987) ]. In addition, any proponent of a use that is not inherently beneficial must satisfy “an enhanced quality of proof” that requires “clear and specific findings by the board of adjustment that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.” Id. at 21 . These findings “must reconcile the proposed use variance with the zoning ordinance's omission of the use...