On appeal from the Superior Court, Law Division, Morris County.
Furman, Dreier and Stern. The opinion of the court was delivered by Furman, P.J.A.D. Dreier, J.A.D. (concurring in part and dissenting in part).
Defendant Board of Adjustment granted defendant Randolph Equities a use variance, N.J.S.A. 40:55D-70(d), for a two-story 17,718 square foot office building on two lots in a residential zone at the intersection of State Highway Route 10 and the Dover-Chester Road.
On appeal by nearby resident objectors, the Township Mayor and Council affirmed on the record before the Board of Adjustment. The objectors instituted this prerogative writ action before the appeal to the governing body was decided and subsequently amended their complaint to include a challenge to that decision on the grounds that it was arbitrary and capricious, barred by res judicata and tainted by conflict of interest of the Mayor and other members. The issue of conflict of interest was also raised on the original complaint to review the Board of Adjustment grant of approval, based upon the financial involvement in the project of the Board of Adjustment attorney, who disqualified himself. From judgment upholding the grant of the variance on the record before the Board of Adjustment, the objectors appeal. We are informed that construction has not proceeded pending appeal. We reverse.
The subject property is zoned for single-family residential use. A combined professional office or studio and single-family dwelling use is permitted if no more than one person not residing on the premises is employed there. Other permitted uses include farms, roadside stands selling farm and garden products, greenhouses, nurseries, golf courses and parks.
The two lots are part of a 23-lot residential subdivision approved some years ago. Single-family dwellings have been built on the other 21 lots, generally to the north and east of the subject property and fronting on Dover-Chester Road or connecting streets. Only one other lot in the subdivision, to the east of the subject property, has frontage on Route 10.
Except for the subject property, Route 10 is zoned at its intersection with Dover-Chester Road for regional business use.
That zone extends in a strip along Route 10 across from the subject property. The environs are otherwise zoned for residential use, along Route 10 to the west, along Dover-Chester Road and in residential enclaves to the north. Route 10 itself in the vicinity has experienced diversified commercial, office and educational development. A bank, a gasoline service station, a real estate office and the county college are nearby. Traffic is heavy on Route 10.
In granting the use variance to Randolph Equities, the Board of Adjustment concluded that a special reason existed for a use variance under N.J.S.A. 40:55D-70(d) and that the use variance could be granted without substantial detriment to the public good or substantial impairment of the intent and purpose of the zoning scheme. In our view, the conclusion that the so-called negative criteria were met was reasonably based in the record. We disagree that a special reason was established, as that prerequisite for a subsection (d) variance has been defined in the case law.
According to the Board of Adjustment, the present zoning has, for all reasonable purposes rendered the parcel "economically useless;" the proposed use would serve as an "excellent transition or buffer between the highway commercial applicants and the nearby residences;" it would "promote the statutory purposes of zoning, including promoting a desirable visual environment and providing sufficient space for appropriate commercial uses;" and the site is particularly well suited for the office use applied for. On appeal, the Mayor and Council reached no separate findings and conclusions.
The trial judge, in upholding the grant of the variance, sustained the Board of Adjustment's conclusions as reasonable on the record, in particular that the subject property was not "realistically developable" for residential use and that an office use would fit in and relate well to the "economic realities of development along Route 10 and to the need for some kind of
buffering and protection" for the residential properties to the north.
Randolph Equities' proposed office use is not a use like a school or a hospital inherently promoting the general welfare and, hence, per se a special reason for a N.J.S.A. 40:55D-70(d) variance, see Black v. Montclair, 34 N.J. 105 (1961) and Andrews v. Ocean Twp. Board of Adjustment, 30 N.J. 245 (1959). According to Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268, 279 (1967), a use other than one inherently promoting the general welfare may provide a special reason for a subsection (d) variance if the use serves the general welfare because it is particularly fitted to the location for which the variance is sought. We view the requisite showing as dual: a use promoting the public health, safety or welfare and particular suitability of the proposed site.
An applicant to qualify for a subsection (d) variance need not prove a zoning burden, that is, inutility of the premises for any use permitted under the zoning ordinance, Black and Andrews, supra. If required to prove such a zoning burden, Randolph Equities failed in its proof: no testimony or evidence in the record precluded reasonable suitability of the subject parcel for other permitted uses, such as professional office combined with dwelling, greenhouse, nursery or roadside farm and garden stand.
Several prior decisions have upheld or ordered use variances under N.J.S.A. 40:55D-70(d) or its predecessor statute other than for uses such as schools or hospitals inherently promoting the general welfare: Kramer v. Bd. of Adjust., Sea Girt, 45 N.J. 268 (1965) (fireproof hotel to replace dangerous structure); Ward v. Scott, 16 N.J. 16 (1954) (supermarket in developing area); Kessler v. Bowker, 174 N.J. Super. 478 (App.Div.1979) certif. den. 85 N.J. 99 (1980) (expansion of nonconforming retail appliance shop making the property safer for children by removing an attractive nuisance); Scheff v. Township of Maple Shade, 149 N.J. Super. 448 (App.Div.1977), certif. den. 75 N.J. 13
(1977) (liquid propane gas storage facility serving an area); Yahnel v. Bd. of Adjust. of Jamesburg, 79 N.J. Super. 509 (App.Div.1963) certif. den. 41 N.J. 116 (1963) (building to house telephone service equipment); Hudanich v. Avalon, 183 N.J. Super. 244 (Law Div.1981) (seven stores on a pier to replace a structure declared unsafe); Rolfe v. Borough of Emerson, 141 N.J. Super. 341 (Law Div.1976) (school bus garage facility); Brunetti v. Mayor, Coun., Tp. of Madison, 130 N.J. Super. 164 (Law Div.1974) (moderate income multi-family housing in a municipality with a need for such housing); and Wickatunk Village, Inc. v. Tp. of Marlboro, 118 N.J. Super. 445 (Ch.Div.1972) (private sewage treatment plant for mobile home park).
Although it has been said that a special reason is one which advances the purposes of zoning, Kohl, supra 50 N.J. at 276, Kessler, supra 174 N.J. Super. at 485, no reported decision has upheld or ordered a use variance for any purpose of zoning as set forth in N.J.S.A. 40:55D-2 or its predecessor statute, except promotion of public health, safety or general welfare or securing safety from fire or other danger. We do not preclude the possibility that in an appropriate case a special reason for a use variance may be ...