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Commercial Realty and Resources Corp. v. First Atlantic Properties Co.

Decided: August 31, 1989.


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

King, Brody and Ashbey. The opinion of the court was delivered by Ashbey, J.A.D.


[235 NJSuper Page 580] In this land use case the primary question is planning board jurisdiction over height variances. We hold that, where the municipality does not provide in its municipal zoning ordinance for a "floor area ratio" regulation as defined in the statute, but does provide a height limitation, variances from the height limitation (not involving residential density) may be considered N.J.S.A. 40:55D-70c variances (c variances) and within the jurisdiction of the planning board as incidental to its site plan review authority unless the municipal legislative scheme unequivocally provides otherwise. Where the use in question is permitted at the height requested in other districts, and the municipality has provided that other structures in the district are permitted at the height requested, it cannot be said that the municipality intended that the variance sought represented an application to be brought exclusively before the zoning board of

adjustment (zoning board) under N.J.S.A. 40:55D-70d(1) (d variances) as a variance from a permitted "principal structure."*fn1

These are the facts in this case. Defendant First Atlantic Properties (Atlantic), was the contract purchaser of a 2.8 acre tract in Neptune Township. It sought to build a five-story 44 feet high "motor inn" with 133 rooms and no ancillary services in a light industrial (LI) zone where the use was permitted. The Township of Neptune Planning Board (Board) granted site plan approval and two variances, one for height and one for parking.*fn2 Following Board approval plaintiff objector filed a complaint in lieu of prerogative writs in which it did not claim that the Board exceeded its statutory authority in considering the variances, but challenged the approvals on the merits. The Law Division judge sua sponte concluded that the Board lacked jurisdiction to grant the height variance which he held was the exclusive province of the Neptune Zoning Board under the Municipal Land Use Law (MLUL) and vacated the Board's action. The court did not rule on plaintiff's other arguments.

Neptune's zoning ordinance was less than clear. Originally permitted LI uses were manufacturing, storage, animal hospitals, printing, laboratories, building supplies, public utilities and computer centers. A 1984 amendment added office buildings up to six stories and motels as permitted uses in the district, as well as all of the uses permitted in the commercial highway service (CHS) district. The general LI height limitation of two stories and 30 feet was not amended. Where motels were permitted, in the commercial service (CS) zone and the executive service (ES) zone, the height limitation was up to six stories

or 90 feet. The LI parking regulation, "one parking space for each 2 employees," appeared to apply only to office space.


The Law Division judge found inapplicable the planning board power under N.J.S.A. 40:55D-60 and N.J.S.A. 40:55D-70c whereby, incidental to its site plan approval, the Board was empowered to grant either a "hardship" (N.J.S.A. 40:55D-70c(1)) variance or a N.J.S.A. 40:55D-70c(2)*fn3 variance if the Board "was satisfied that the purposes of the [Municipal Land Use Law] would be advanced" and the "benefits of the deviation would substantially outweigh any detriment" created. He concluded that the variance could be granted only under N.J.S.A. 40:55D-70d, which specifically reserves to the zoning board exclusive jurisdiction over any variance:

(1) [permitting] a use or principal structure, in a district restricted against such use or principal structure;*fn4

The judge concluded that, although Atlantic's proposed use was permitted, the structure was not because of its height. On appeal Atlantic urges that N.J.S.A. 40:55D-70d must be interpreted to require exclusive zoning board jurisdiction over "use" variances only and that height restrictions concern "bulk," not being functionally different from area, frontage and side-yard deviations. The Board agrees, urging that the intent of the MLUL was to limit zoning board exclusive jurisdiction respecting structure size in non-residential development to those buildings

the construction of which would violate specific floor area ratio standards.*fn5 N.J.S.A. 40:55D-70d(4). The Board would have us rule that where the zoning ordinance fails to specify a maximum floor area ratio, there is no limit to planning board height variance jurisdiction incidental to site plan review unless the variance would be so extreme that an amendment to the ordinance is required. Since plaintiff agrees with the Law Division judge's ruling that all height variances belong before the zoning board rather than before the planning board, the parties argue diametrically opposed "bright lines" establishing planning board jurisdiction over height variances.

At issue is the intent of the Legislature in its delineation of permissible municipal action and the intent of the municipality in following that mandate. We first review legislative intent. "Sources of legislative intent are the language of a statute, the policy behind a statute, concepts of reasonableness and legislative history." Coletti v. Un. Co. C. Freeholders, 217 N.J. Super. 31, 35 (App.Div.1987). See also Levin v. Township of Parsippany Troy Hills, 82 N.J. 174, 182 (1980). There is, of course, extensive prior history of the MLUL. That history was before the Legislature and must be considered in interpreting the applicable MLUL. Guzman v. City of Perth Amboy, 214 N.J. Super. 167, 174 (App.Div.1986); Yacenda Food v. N.J. Authority, 203 N.J. Super. 264, 273 (App.Div.1985).

Implicit in the argument of the parties and the reasoning of the trial judge is the traditional difference between a "bulk" (c) variance and a "use" (d) variance. In 1976, the legislature

aligned height and bulk in the same section of the statute, differentiating between regulating the intensity of land use and regulating the nature of the use itself. See N.J.S.A. 40:55D-65a and b which provide that a zoning ordinance may:

a. Limit and restrict buildings and structures to specified districts and regulate buildings and structures according to their type and nature and extent of their use, and regulate the nature and extent of the use of land for trade, industry, residence, open space or other purposes.

b. Regulate the bulk, height, number of stories, orientation, [added by L.1980, c. 146] and size of buildings and the other structures, the percentage of lot or development area that may be occupied by structures, lot sizes and dimensions, and for these purposes may specify floor area ratios and other ratios and regulatory techniques governing the intensity of land use and the provision of adequate light and air. . . . [emphasis added].

Prior to 1976 only the zoning board had power over either use or bulk variances. Under N.J.S.A. 40:55D-39c the zoning board could grant bulk variances upon a showing that some physical condition of the property created a hardship to the property owner. A use variance could only be granted under N.J.S.A. 40:55-39d where the applicant had to prove "special reasons" and approval had to come from the governing body.

This was the law in effect at the time our Supreme Court decided Irving Isko et als. v. Planning Bd. of Tp. of Livingston et als., 51 N.J. 162 (1968), where the Court ruled that a height variance was unnecessary respecting a pre-existing non-conforming structure. In Cranmer v. Township of Evesham, 162 N.J. Super. 204, 212 (Ch.Div.1978), the court construed Isko, saying:

In Isko v. Livingston Tp. Planning Bd., 51 N.J. 162 (1968), the Supreme Court held that questions of height should be considered under the use variance portion of the statute (an earlier, but in this connection, identical statute to the one before me), because it found no "exceptional narrowness, shallowness or shape * * * or exceptional topographic condition" of the specific piece of property which would cause the height restriction to result in undue hardship. "Hardship personal to the owner which is unrelated to the physical characteristics of the land is not contemplated by subsection (c) and does not constitute sufficient grounds for the granting of a variance under that subsection." Id. at 174. From this it may be inferred that proof of a relationship between land and height (here, between land and floor space), causing undue hardship, could support a bulk variance. However, the court did not discuss the prohibitory

language of the statute, which I find to be a conclusive denial of that suggested power. [162 N.J. Super. at 212]

Cranmer has been cited (and was cited here by the Law Division judge) for the proposition that all height variances belong before the zoning board. Cranmer, however, concerned planning board jurisdiction over a planned unit development variance for a lower than required minimum internal residential space under the law which limited planning board jurisdiction to external structural dimension variances.*fn6 The court held that the planning board did not ...

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