On appeal from Superior Court of New Jersey, Law Division, Somerset County.
Allcorn, Horn and Furman. Furman, J.s.c. (temporarily assigned), dissenting.
A review of the record in this case makes plain that plaintiffs-developers completely failed to establish any special reasons within the contemplation of subsection (d) of N.J.S.A. 40:55-39, which would warrant or justify the recommendation or grant of the requested use variance sought by them. Likewise, the proofs were deficient in establishing fulfillment of the negative criteria. Such were also the conclusions of the municipal governing body in rejecting the recommendation of the board of adjustment. We are in full accord with the said conclusions and determination of the governing body. Mayer v. Montclair Bd. of Adj. , 32 N.J. 130, 140 (1960).
The failure of plaintiffs-developers to establish special reasons becomes even more apparent when it is observed that the resolution of the board of adjustment recommending the variance did not make or set forth any fact findings as constituting the special reason or special reasons on which it predicated its recommendation. Thus, after a prefatory recital consisting almost entirely of a summary of portions of the testimony of various of the witnesses, the board simply concluded: "That the granting of said variance will promote the general health, safety and welfare" -- without in any way setting forth in what specific respect or respects the general health, safety and welfare of the community would be advanced.
Quite aside from the failure of proof, this latter procedural deficiency in itself is fatal. The recommendation
of a variance must be grounded upon "a statement of the specific findings of fact on which the Board reached the conclusion"; the recommendation of a variance "on a summary finding couched in the conclusionary language of the statute is not adequate." Harrington Glen, Inc. v. Leonia Bd. of Adj. , 52 N.J. 22, 28 (1968).
Despite the absence of any specific findings, the dissent nevertheless assumes that the board of adjustment recommended the variance based on the "evidence set forth in the resolution" that the garden apartment complex proposed by the applicants, private commercial developers, would provide "multi-family housing which was needed for the 'mid-income group'" -- whatever that may be. Commencing with the hypothesis that the need for housing for low and moderate-income families constitutes a special reason justifying a variance, the dissent concludes that there is a need for "median income" housing as well, and that the asserted need of this undefined group likewise constitutes a sufficient special reason for the granting of a variance.
The dissent posits his assumption that there is a need for housing for this undefined class upon a single conclusionary statement of one expert witness (John Lynch) produced by plaintiffs-developers, to the effect that "there is also a strong need [for housing] in this next level above that [low and moderate income]." This bare conclusion was completely unsupported by any underlying factual evidence. No data whatever was supplied to demonstrate the number of families in this "median income" class, or to establish any need for additional housing for such "class," either state-wide or area-wide. An expert opinion which is completely lacking in factual foundation is utterly worthless. Expert opinion must be based on facts and data established by evidence at the hearing. Skupienski v. Maly , 27 N.J. 240, 246 (1958); Evid. R. 56.
Be this as it may, not surprisingly there is not a single case cited by the dissent which holds that proposed private
commercial housing for even low or moderate-income families (let alone median-income families) constitutes a special reason warranting the grant of a use variance under subsection (d) -- with the exception of the case of Brunetti v. Madison Tp. Mayor and Council , 130 N.J. Super. 164 (Law Div. 1974). A decision authored by our dissenting colleague, Brunetti has never been subjected to the testing of appellate review. Indeed, although decided in 1974, Brunetti has yet to be cited with approval in the opinion of any appellate court in this State. On the single occasion on which it was mentioned -- in a footnote to the opinion of the Supreme Court in Fobe Associates v. Demarest Mayor and Council , 74 N.J. 519 (1977) -- the court observed:*fn1
The decision in Brunetti v. Mayor, Coun. Tp. of Madison , 130 N.J. Super. 164 (Law Div. 1974), upholding a variance for construction of garden apartments on the grounds that such housing constitutes a special reason within the scope of N.J.S.A. 40:55-39 d. has been criticized as "subverting rational land use planning" so as to "inevitably result in even greater misplanning in New Jersey suburbs." Mallach, "Do Lawsuits Build Housing?: The Implications of Exclusionary Zoning Litigation," 6 Rutgers-Camden L.J. 653, 658, 676 (1975). Granting such variances "largely on the basis of the absence of negative findings, would result in arbitrary changes in the use of land, precluding serious planning for services, facilities, traffic circulation and other community needs." Id. at 659. To the same effect, Mytelka, "The Mount Laurel case: Where to Now?", 98 N.J.L.J. 513, 522 (1975). See also Mytelka and Mytelka, "Exclusionary Zoning: A Consideration of Remedies", 7 Seton Hall L. Rev. 1, 11 (1975), rejecting the special use exception for low and moderate income housing as a remedy for exclusionary zoning because of its potential for abuse. [at 536, n. 5]
No one can quarrel with the proposition that adequate housing for families of low and moderate income
in areas deficient in and requiring such housing is a matter of public concern. Even upon the dubious assumption that there is a need for "median income" housing, as well, the existence generally of such need (whether low, moderate or median), however, is not the one-all upon which a use variance for such purpose may or should be grounded. Pascack Ass'n, Ltd. v. Washington Tp. Mayor & Council , 74 N.J. 470 (1977). Other concerns of equal or greater magnitude also must be given consideration and weight in reaching a determination as to whether a special reason or special reasons does or do exist that would justify the grant of the variance. See, for example, the discussion in Fobe Associates, supra 74 N.J. at 532-537, inclusive; Kohl v. Fair Lawn Mayor and Council , 50 N.J. 268 (1967) and DeSimone v. Greater Englewood Housing Corp. No. 1 , 56 N.J. 428, 439-442 (1970). Thus, in addition to a demonstrated need for such housing, there must be considered such other significant factors as the character of the community and the surrounding area, the extent and nature of development of the community and the surrounding area, whether the community already has provided or has made provision for its fair share of the needed housing in the area, whether there are other districts in the community where the proposed housing may be constructed as a lawful permitted use under the current zoning regulations, whether the site for which the use variance is sought is peculiarly suited for such use, and many other factors of significance, including those relating to the negative criteria of the statute.
And so here, there are no findings as to the projected number of multi-family dwelling units that are or will be required in the foreseeable future in the area generally or in Franklin Township specifically. There is no finding as to the extent and nature of the development of the community presently -- no indication of the number of currently existing and occupied or available multi-family homes for families of low income, moderate income or "median income," no indication of the number estimated to constitute
Franklin Township's fair share of the projected needs. Hence, it is literally impossible to determine whether Franklin Township has already provided its fair share of such housing or more or less than its fair share of such housing. There is no evidence or finding that this specific location is the only site available or suitable for the housing proposed. As a matter of fact, the local zoning ordinance and map would indicate the existence of at least 10 or 11 zoning districts in which the proposed multi-family dwelling complex could be constructed as a lawful permitted use -- and in which no use variance is required.
It is still the rule in New Jersey that a private commercial housing development does not inherently serve the public good and welfare. Kohl v. Fair Lawn Mayor and Council, supra. And where, as here, "the use is not of the type [which] of itself provides special reasons, such as a school or hospital, there must be a finding that the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought." Kohl, supra , 50 N.J. at 279.
Significantly, plaintiffs-developers here make no explanation why they could not construct this development on the 4 1/2 acres which lie entirely within the B-2 zone (where such a use is permitted), seeking a variance only from the five-acre minimum land requirement. Whether plaintiffs-developers rejected this approach for fear the municipal authorities might require a reduction in the number of dwelling units, thus resulting in a proportionate reduction in the profitability of the enterprise, or for some other reason, does not appear in the record. Suffice it to say that, rather than taking this approach, they ...