Sica v. Board of Adjustment of Tp. of Wall

• Decision Date: 19 March 1992
• Parties: Dr. Robert B. SICA, Plaintiff-Appellant, v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF WALL, Defendant-Respondent, 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 Supreme Court

Page 152

127 N.J. 152

603 A.2d 30

Dr. Robert B. SICA, Plaintiff-Appellant, v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF WALL, Defendant-Respondent, 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.

Supreme Court of New Jersey.

Argued Nov. 18, 1991.

Decided March 19, 1992.

Bruce D. Greenberg, Woodbridge for plaintiff-appellant (Greenbaum, Rowe, Smith, Ravin & Davis, attorneys, Douglas K. Wolfson and Wilentz, Goldman & Spitzer, Stephen E. Barcan and Richard J. Byrnes, attorneys, of counsel, Douglas K. Wolfson, Bruce D. Greenberg, and Jessica R. Mayer, on the briefs).

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

Kenneth E. Meiser, Metuchen submitted a brief on behalf of amicus curiae, Volunteers of America (Frizell, Pozycki & Meiser, attorneys).

The opinion of the Court was delivered by

POLLOCK, J.

In Medici v. BPR Co., 107 N.J. 1, 21, 526 A.2d 109 (1987), we held that an applicant seeking a use variance for a commercial purpose must establish by enhanced proof that the variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance. This appeal raises the question whether the enhanced standard also applies to inherently beneficial uses. The Board of Adjustment of the Township of Wall (the Board) denied the applicant, Dr. Robert B. Sica, a use variance for a trauma rehabilitation center. The Law Division reversed the Board's decision and remanded the matter to the Board to consider the imposition of reasonable restrictions on the center. In reversing the judgment of the Law Division, the Appellate Division held that the enhanced standard applies to inherently beneficial uses. 246 N.J.Super. 338, 340, 587 A.2d 661 (1991). We granted Dr. Sica's petition for certification. 126 N.J. 334, 598 A.2d 892 (1991). Contrary to the Appellate Division, we conclude that the enhanced standard does not apply to inherently beneficial uses. Consequently, we reverse that court's judgment and reinstate the judgment of the Law Division directing the grant of the requested variance.

I

The basic law governing land use variances is codified in N.J.S.A. 40:55D-70d, amended by L.1991, c. 256, which states that a board of adjustment may

[i]n particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: (1) a use or principal structure in a district restricted against such use or principal structure, (2) an expansion of a nonconforming use, (3) deviation from a specification or standard pursuant to section 54 of P.L.1975, c. 291 (C. 40:55D-67) pertaining solely to a conditional use, (4) an increase in the permitted floor area ratio as defined in section 3.1 of P.L.1975, c. 291 (C. 40:55D-4), (5) an increase in the permitted density as defined in section 3.1 of P.L.1975, c. 291 (C. 40:55D-4), except as applied to the required lot area for a lot or lots for detached one or two dwelling unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision or (6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure. A variance under this subsection shall be granted only by affirmative vote of at least five members, in the case of a municipal board, or 2/3 of the full authorized membership, in the case of a regional board, pursuant to article 10 of this act.

If an application for development requests one or more variances but not a variance for a purpose enumerated in subsection d. of this section, the decision on the requested variance or variances shall be rendered under subsection c. of this section.

No variance or other relief may be granted under the terms of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance. In respect to any airport hazard areas delineated under the "Air Safety and Hazardous Zoning Act of 1983," P.L.1983, c. 260 (C. 6:1-80 et seq.), no variance or other relief may be granted under the terms of this section, permitting the creation or establishment of a nonconforming use which would be prohibited under the standards promulgated pursuant to that act, except upon issuance of a permit by the Commissioner of Transportation. An application under this section may be referred to any appropriate person or agency for its report; provided that such reference shall not extend the period of time within which the zoning board of adjustment shall act. [Footnotes omitted.]

The statute requires proof of both positive and negative criteria. Under the positive criteria, the applicant must establish "special reasons" for the grant of the variance. The negative criteria require proof that the variance "can be granted without substantial detriment to the public good" and that it "will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."

Dr. Sica's proposed use is a forty-bed "head-trauma" residential-rehabilitation center for which he has received a certificate of need from the New Jersey Department of Health. The certificate, the first granted in this state, requires that ten percent of the beds be reserved for indigent or low-income patients. At present, head-trauma patients must go to New York or Pennsylvania for treatment in a residential program.

Dr. Sica, a neurophysiologist, applied in 1987 to the Wall Township Planning Board for subdivision and site plan approval and for a conditional use permit for the center. He sought to subdivide the 5.45-acre tract on which he proposed to build the center from a thirty-two-acre tract that he had purchased in 1986. The lot, which fronts on Belmar Boulevard, is in an R-60 zone. This zone permits farming, single-family dwellings, public parks, and playgrounds, as well as municipal buildings, facilities, and services essential to the township. When Dr. Sica applied for subdivision approval, the R-60 zone permitted a number of conditional uses, including nursing homes and hospitals. In 1987, the Wall Township land use officer wrote Dr. Sica informing him that the proposed center was permitted as a conditional use. On March 7, 1988, the Planning Board approved the subdivision of the lot. The Township Committee then amended the zoning ordinance to exclude from the entire Township hospitals and nursing homes as conditional uses. Following the enactment of that ordinance, the Planning Board dismissed without prejudice the application for approval of the site plan and the conditional use.

Dr. Sica then applied to the Board for both a use variance and site plan approval. At the hearing, he testified, as did some of his former patients--one a former resident of the Township--and several expert witnesses. His land use expert testified that the variance would be consistent with the zoning ordinance and master plan, pointing out that the proposed lot and building met all the bulk requirements for the R-60 zone. He distinguished the center from hospitals and nursing homes by noting that, among other things, the center would not receive ambulance calls and that nursing care would be limited to twelve minutes per patient per week. Noting that a horse barn on a neighboring property was larger than the proposed center, an architect testified that the building setback and design, as well as the topography, would render the center unobtrusive. The increase in traffic, according to a traffic expert, would be minimal. A real estate expert testified that the center would not cause a diminution in real estate values. All of the expert testimony remained uncontradicted, notwithstanding the presence of the township planner throughout the hearings.

At the conclusion of the hearings, the Board voted 7-0 to reject the application. It acknowledged that the facility met all of the bulk and buffer requirements of the R-60 zone. The Board concluded, however, that the evidence did not satisfy Medici's enhanced standard of proof that the variance could not "be granted without substantial detriment to the public good," and that it would not "substantially impair the intent and the purpose of the zone plan and zoning ordinance." See N.J.S.A. 40:55D-70d. Specifically, the Board found in relevant part:

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 non-permitted 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.

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...