Sica v. Board of Adjustment of Tp. of Wall

• Decision Date: 06 March 1991
• Citation: 246 N.J.Super. 338,587 A.2d 661
• Parties: Dr. Robert B. SICA, Plaintiff -Respondent, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF WALL, Defendant-Appellant, and Township of Wall, Monmouth County, a Municipal Corporation of New Jersey, Township Committee of the Township of Wall, and Planning Board of the Township of Wall; Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 338

246 N.J.Super. 338

587 A.2d 661

Dr. Robert B. SICA, Plaintiff -Respondent, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF WALL, Defendant-Appellant and Township of Wall, Monmouth County, a Municipal Corporation of New Jersey, Township Committee of the Township of Wall, and Planning Board of the Township of Wall; Defendants.

Superior Court of New Jersey Appellate Division.

Argued Jan. 8, 1991.

Decided March 6, 1991.

Thomas J. Hirsch, for defendant-appellant (Crawford & Hirsch, attorneys), Ocean.

Richard J. Byrnes, for plaintiff-respondent (Wilentz, Goldman & Spitzer, attorneys), Woodbridge.

Before Judges MICHELS, BRODY and D'ANNUNZIO.

The opinion of the court was delivered by

D'ANNUNZIO, J.A.D.

The Board of Adjustment of the Township of Wall (Board) denied plaintiff's application for a use variance to construct and operate, in a residential zone, a 40-bed residential facility for the rehabilitation of head trauma victims. In an action in lieu of prerogative writs, the Law Division reversed the Board and granted the variance. The Board appeals from that judgment, and we now reverse. ¹

Plaintiff subdivided the 5.45 acre lot upon which he proposes to build the facility from a 32 acre tract which he owns. The lot is in the township's R-60 zone in which the permitted uses are farming, single family dwellings, public parks, playgrounds, municipal buildings and facilities and services essential to the operation of the township. Certain conditional uses were permitted when plaintiff filed the variance application. They included home professional offices, places of worship, public, parochial and private schools, golf courses and country clubs.

Prior to May 11, 1988, hospitals and nursing homes had been permitted conditional uses in the R-60 zone. On March 1, 1988 plaintiff applied for a conditional use permit. On May 11, 1988, the governing body amended the zoning ordinance to eliminate hospitals and nursing homes as permitted conditional uses. Consequently, plaintiff's conditional use application was dismissed and plaintiff was required to seek a use variance.

N.J.S.A. 40:55D-70d. empowers a board of adjustment to grant use variances for "special reasons," the affirmative criteria. In addition, the applicant must establish that the variance "can be granted without substantial detriment to the public good," the first element of the negative criteria, and only if it "will not substantially impair the intent and the purpose of the zone plan and zoning ordinance," the second element of the negative criteria.

In denying the application, the Board focused on the second element of the negative criteria. The Board specifically and expressly relied on Medici v. BPR Co., 107 N.J. 1, 526 A.2d 109 (1987), and concluded that the applicant had not established that the variance would not "substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70d. Paragraphs 55, 56 and 57 of the Board's resolution state:

55. The Board, pursuant to the dictates of the Medici case, is obligated to determine whether or not the removal of nursing homes and hospitals from residential zones by the amendment to the zoning ordinance was meant to include a prohibition against the type of use proposed by applicant. As noted in Medici, a reconciliation of a nonpermitted use with the zoning ordinance becomes increasingly difficult when the governing body has been made aware of prior applications for the same use variance but has declined to revise the zoning ordinance. In this case, it is not a question of the governing body declining to revise the zoning ordinance, but a question of them taking specific action to amend the zoning ordinance to prohibit a particular use.

56. The Board has already pointed out the testimony of applicant concerning the differences between the proposed use and a nursing home. The Board finds that there are some differences between the proposed use and what is traditionally termed a nursing home, however the Board also finds that it was the intent of the governing body to also preclude the type of use which is the subject matter of this application when it amended the zoning ordinances to preclude hospitals and nursing homes. At the time of the amendment to the zoning ordinance, this application was before the Planning Board, and was considered a permitted use under the general heading of nursing homes.

Therefore, in light of the fact that the proposed amendment to the zoning ordinance had to be sent to the Planning Board for their recommendation and the Planning Board recommended the adoption of this ordinance, and the fact that the Mayor and one other member of the committee sit on the Planning Board, the Board comes to the inescapable conclusion that the governing body intended to exclude applicant's type of use from residential zones at the time it amended the zoning ordinance.

57. Based on this finding, the Board cannot reconcile the grant of this variance with the prohibition of this use from the zoning ordinance. The Board further finds that the applicant certainly has not carried its burden of an, "enhanced quality of proof" that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.

The Board also concluded that the applicant did not establish the first element of the negative criteria. However, it did not rule on the affirmative criteria because of its rejection of the application on negative criteria grounds. Although the Board was satisfied that the proposed use promoted the general welfare, see Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268, 234 A.2d 385 (1967), the Board appeared to reject plaintiff's contention that his lot was particularly suited to the proposed use. In paragraph 59, the Board stated:

The Board specifically finds that applicant did not demonstrate that this type of development had to be in a residential area. Applicant indicated the pastoral setting, the proximity to the airport, proximity to Jersey Shore Medical Center, and to a county road were all important aspects of this location. The Board finds that all those elements can be met in other zones of the Township which are non-residential in character. The Township is only 50% developed and there are many areas where all those criteria are available which will not impact on established residential neighborhoods.

Whether the proposed use is inherently beneficial, thereby satisfying the affirmative criteria without a showing of the site's particular suitability, see Kohl, supra at 279, 234 A.2d 385; DeSimone v. Greater Englewood Housing Corp. No. 1, 56 N.J. 428, 440, 267 A.2d 31 (1970); Kunzler v. Hoffman, 48 N.J. 277, 286, 225 A.2d 321 (1966), was characterized by the Board as a "close question," which the Board did not answer.

We assume for purposes of this opinion, that the proposed use is inherently beneficial and, therefore, that the applicant satisfied the affirmative criteria. Cf. Jayber, Inc. v. Municipal Council, 238 N.J.Super. 165, 174-175, 569 A.2d 304 (App.Div.1990) (congregate care facility for senior citizens is an inherently beneficial use satisfying the affirmative criteria). Our focus, as was the Board's, is on the second element of the negative criteria.

The Legislature has vested discretionary authority in boards of adjustment to grant or deny variance applications. Kramer v. Bd. of Adjust., Sea Girt, 45 N.J. 268, 296, 212 A.2d 153 (1965). A board's denial of a variance is presumed to be valid, and may be reversed only if a board's action was arbitrary, capricious or unreasonable. Id. at 296, 212 A.2d 153; Charlie Brown of Chatham v. Bd. of Adjust., 202 N.J.Super. 312, 321, 495 A.2d 119 (App.Div.1985). In Kramer, the Court expanded on the rationale underlying these principles:

Such public bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion. Courts cannot substitute an independent judgment for that of the boards in areas of factual disputes; neither will they exercise anew the original jurisdiction of such boards or trespass on their administrative work. So long as the power exists to do the act complained of and there is substantial evidence to support it, the judicial branch of the government cannot interfere. A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved. (Citations omitted.)

Kramer, supra, 45 N.J. at 296-297, 212 A.2d 153.

In the present case, the Board applied the principles announced in Medici where the Court recognized "a strong legislative policy favoring zoning by ordinance rather than by variance." Medici, supra, 107 N.J. at 23, 526 A.2d 109; see also Feiler v. Fort Lee Bd. of Adj., 240 N.J.Super. 250, 255-256, 573 A.2d 175 (App.Div.1990); Chesterbrooke Limited Partnership v. Planning Bd. of Tp. of Chester, 237 N.J.Super. 118, 567 A.2d 221 (App.Div.1989). In Medici, the Court addressed the second element of the negative criteria. In doing so, it reviewed the changes in New Jersey land use statutes effected by the Municipal Land Use Law (MLUL). L.1975, c. 291; N.J.S.A. 40:55D-1 et seq. Those changes included the grant of full authority to boards of adjustment to grant use variances, N.J.S.A. 40:55-70(d); the requirement that zoning ordinances be consistent with the master plan, N.J.S.A. 40:55D-62(a); the requirement that planning boards review and report on the master plan and zoning ordinance every six years, N.J.S.A. 40:55D-89; and the requirement of annual reports by boards of adjustment on those zoning ordinance provisions involved in variance applications, N.J.S.A. 40:55D-70.1. Medici, supra, 107 N.J. at 18-20, 526 A.2d 109.

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