On Certification the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Stein, J.
[107 NJ Page 3] This case invites our reconsideration, for the first time since Kohl v. Mayor of Fair Lawn, 50 N.J. 268 (1967), of the factors that should guide a municipal board of adjustment considering
a use-variance application for a commercial use that does not " inherently serve[ ] the public good." Id. at 279. In this case the proposed use is a four-story motel, the fourth variance application to build a motel considered by the Board of Adjustment of South Plainfield (Board) in recent years. This application, as well as the three prior applications, was granted by the Board. The Borough's zoning ordinance does not permit motels or hotels in any zoning district.
We now reaffirm the holding in Kohl that if the use for which a variance is sought is not one that inherently serves the public good, the applicant must prove and the board must specifically find that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use.*fn1 In addition, in view of the 1985 amendments to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -112, set forth in N.J.S.A. 40:55D-89, -89.1 (requiring periodic review by the governing body of master plans and zoning ordinances and establishing a presumption of unreasonableness for ordinances not so reviewed) and N.J.S.A. 40:55D-70.1 (requiring annual reports by boards of adjustment of variance requests and recommendations for ordinance revisions), we deem it appropriate to require an enhanced quality of proof, as well as clear and specific findings by the board of adjustment, that the grant of a use variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance. Such proofs and findings must satisfactorily reconcile the grant of a use variance with the ordinance's continued omission of the proposed use from those permitted in the zone, and thereby provide a more substantive basis for the typically conclusory determination that the variance "will not substantially impair the intent and purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70(d). This added requirement will apply in all
use-variance cases. We anticipate that its application will not significantly limit the use-variance mechanism, but will narrow to some extent the discretion of boards of adjustment in reviewing use-variance appeals for uses that are deliberately excluded by the governing body from those permitted by the zoning ordinance. It will also effectuate the legislature's apparent objective of encouraging municipalities to make zoning decisions by ordinance rather than by variance.
BPR Company ("BPR" or "Applicant"), a limited partnership, is the contract-purchaser of a U-shaped parcel of property consisting of almost nine acres, and located at the intersection of Hamilton Boulevard and South Clinton Avenue in the Borough of South Plainfield ("Borough" or "South Plainfield"). The property is in close proximity to Route 287, an interstate highway that traverses the southerly portion of the Borough. The site is located in the Borough's M-3 industrial zone, the least restrictive of three industrial zones established by the Zoning Ordinance. In addition to the uses permitted in the two more restrictive zones, which include office buildings, scientific or research laboratories, various light-manufacturing uses, and storage yards, the M-3 zone permits a far wider variety of manufacturing uses than are allowed in the other industrial zoning districts. No zoning district within the Borough permits motels or hotels. The Zoning Ordinance was comprehensively revised in 1978, and has been amended several times since 1978, but none of the amendments is pertinent to this litigation.
In February 1984, BPR applied to the Board of Adjustment for a use variance to permit the construction of a four-story, 116-room motel, with a restaurant, on a portion of the property. It contemplated construction of an office building -- a permitted use -- on the balance of the property although the office building proposal was not submitted to the Board for consideration.
At the public hearing in March 1984, BPR presented four witnesses: an architect, a traffic consultant, an engineer, and a planner. No one testified in opposition to the application. The architect described the proposed design and exterior appearance of the motel, the site location, and the sufficiency of the on-site parking. He offered no testimony on the issue of "special reasons." His testimony concerning the "negative criteria" was limited to the following exchange:
Q. It would have no detrimental effect on either the purpose or intent of the ordinance?
The traffic consultant, Robert Nilsen, testified generally as to traffic conditions affecting the site. Responding to a direct question concerning the negative criteria, he stated that the application, from a traffic standpoint, would not adversely affect the zone plan or zoning ordinance. The only testimony minimally relevant to the issue of special reasons was his statement that
[t]his happens to be a very, very good type of use, based on the configuration of the lot, simply because if there are any activities in the office building that may have some relationship to the hotel or the restaurant, those movements between the two can occur without ever having to touch the street system. That is, in my opinion, a positive feature of this site, the office building being on the south leg of the U and the hotel and restaurant on the north leg of the U.
An engineer testified about the topography of the site, as well as the proposed drainage, sewerage, parking, and landscaping. Like the preceding witnesses, he was asked a direct question about the negative criteria. He stated that from an engineering perspective, the application would not adversely affect the zone plan or zoning ordinance.
The last witness to testify on behalf of the applicant was the planner, Thomas E. Sheehan. He described the adjacent uses. The planner counted six commercial uses, twenty-three light industrial parcels, and six vacant sites within 1,000 feet of the site. The witness indicated that within a half mile of the property is a 192-room Holiday Inn and a 144-room Howard Johnson Motor Lodge. An approved 140-room Econo Lodge is
to be constructed within 400 feet of the site. Each of these motels was authorized by a use variance granted by the Board of Adjustment.*fn2
The planning expert testified that the site was located within a
transitional land use area that is taking advantage of the marketability and the identification of uses that come with the highway intersection, the highway access points that are either four-tenths of a mile to the west or one and three tenths of a mile to the east, the interchanges to 287, specifically.
Describing the prevailing uses as a "commercial-service-type complex of uses," he testified that the proposed use "serves the[ ] complementary needs [of the surrounding industrial district and the transregional market] by adding hotel space * * * [and] restaurant facilities," and "provides a conveniently located place for neighboring business people to conduct business meetings, provide dining, amenities to lodge out-of-town clients * * * and management type of people." Although he had no detailed knowledge of vacancy rates at the existing motels and had not undertaken a market study, he stated that "[a] clear need, in my mind, exists for this type of use for this location to serve the very large development of office floor space that has developed in this area." Although he did not testify that the specific site was particularly suitable for the proposed use, he characterized the U-shaped lot as "unique" and "unsuitable, in my opinion, for industrial uses which would require the large unbroken tracts of land."
Regarding the negative criteria, he testified that the proposed motel and office are "not incompatible with the neighboring land uses," and do not "alter or adjust the integrity of that zone."
At the conclusion of the hearing, the Board unanimously approved the variance. Its resolution recited that "[t]he applicant
has demonstrated that there is a present and existing need for good motel uses in the Borough," and concluded that such "need for good motel accommodations" constituted special reasons to support the relief requested. The resolution also contained a conclusory statement that the grant of the variance would not cause "substantial detriment to the intent and purpose of the Zoning Ordinance."
Plaintiff Medici, a property owner in the area, appealed the Board's decision to the governing body. See N.J.S.A. 40:55D-17(a). The Mayor and Council upheld the grant of the variance and adopted a conclusory resolution affirming the existence of special reasons and satisfaction of the negative criteria.
Medici then instituted this action in the Law Division challenging the validity of the variance granted by the Board of Adjustment and affirmed by the governing body. Prior to trial, Medici resolved his differences with BPR, but respondent Madison Property Company No. 4 (Madison) was granted permission to intervene as plaintiff before a stipulation of dismissal was filed.*fn3 The trial court determined that although the negative criteria were satisfied, the record before the Board did not contain adequate proof of special reasons to support the grant of the variance. Specifically, the trial court focused on the absence of proof in the record or findings by the Board that the proposed site was "particularly suitable" for a motel, and, accordingly, set aside the grant of the variance. The Appellate Division reversed, concluding that it was neither arbitrary, capricious, or unreasonable ...