On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Michels, Brody and D'annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.
The Board of Adjustment of the Township of Wall (Board) denied plaintiff's application for a use variance to construct and operate, in a residential zone, a 40-bed residential facility for the rehabilitation of head trauma victims. In an action in lieu of prerogative writs, the Law Division reversed the Board and granted the variance. The Board appeals from that judgment, and we now reverse.*fn1
Plaintiff subdivided the 5.45 acre lot upon which he proposes to build the facility from a 32 acre tract which he owns. The lot is in the township's R-60 zone in which the permitted uses are farming, single family dwellings, public parks, playgrounds, municipal buildings and facilities and services essential to the operation of the township. Certain conditional uses were permitted when plaintiff filed the variance application. They included home professional offices, places of worship, public, parochial and private schools, golf courses and country clubs.
Prior to May 11, 1988, hospitals and nursing homes had been permitted conditional uses in the R-60 zone. On March 1, 1988,
plaintiff applied for a conditional use permit. On May 11, 1988, the governing body amended the zoning ordinance to eliminate hospitals and nursing homes as permitted conditional uses. Consequently, plaintiff's conditional use application was dismissed and plaintiff was required to seek a use variance.
N.J.S.A. 40:55D-70d. empowers a board of adjustment to grant use variances for "special reasons," the affirmative criteria. In addition, the applicant must establish that the variance "can be granted without substantial detriment to the public good," the first element of the negative criteria, and only if it "will not substantially impair the intent and the purpose of the zone plan and zoning ordinance," the second element of the negative criteria.
In denying the application, the Board focused on the second element of the negative criteria. The Board specifically and expressly relied on Medici v. BPR Co., 107 N.J. 1, 526 A.2d 109 (1987), and concluded that the applicant had not established that the variance would not "substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70d. Paragraphs 55, 56 and 57 of the Board's resolution state:
55. 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 nonpermitted 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.
56. 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 of the fact that the proposed amendment to the zoning ordinance had to be sent to the Planning Board for their recommendation and the Planning Board recommended the adoption of this ordinance, and the fact that the Mayor and one other member of the committee sit on the Planning Board, the Board comes to the inescapable conclusion that the governing body intended to ...