On certification to the Superior Court, Appellate Division.
The opinion of the Court was delivered by Garibaldi, J. Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, and Stein join in this opinion.
The opinion of the Court was delivered by
In this appeal, we establish the standards for granting a variance for a "deviation from a specification or standard * * * pertaining solely to a conditional use" under N.J.S.A. 40:55D-70d(3), of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -133. In so doing, we discuss the criteria an applicant must demonstrate to receive an N.J.S.A. 40:55D-70d(3) variance. Those standards reflect the fact that a conditional use is neither prohibited throughout the zone nor permitted at every location in the zone: rather, it is permitted at those locations in the zone where the use meets the conditions set forth in the zoning ordinance. N.J.S.A. 40:55D-67. Because a conditional use is not a prohibited use, we hold that it need not meet the stringent special reasons standards for a commercial-use variance that we summarized in Medici v. BPR Co., 107 N.J. 1, 9-18, 526 A.2d 109 (1987).
We therefore distinguish between two types of variances: one is a use variance; the other is a variance for a deviation from a condition the ordinance places on a use in a given zone. They are both "special reasons" variances under N.J.S.A. 40:55D-70d, but their focus is different. A use variance allows the applicant to engage in a prohibited use: It is the use that violates the ordinance. A variance for a deviation from a condition allows the applicant to engage in a conditional use despite the applicant's failure to meet one or more of the conditions: It is not the use but the non-compliance with the conditions that violates the ordinance.
The applicant, Westwood Development Associates (Associates), planned to build an apartment complex in a zone in which apartments were a conditional use. (Associates defaulted and did not appear in the proceedings.) Because Associates' plan deviated from conditions imposing a minimum rear-yard setback and a minimum aggregate-side-yard setback, Associates applied to defendant Westwood Zoning Board of Adjustment (the Board) for a variance from those conditions.
Associates owns an 8.7-acre tract on Old Hook Road, Westwood, Bergen County. The lot is basically rectangular, with a depth of approximately 800 feet and a width of about 500 feet. The southerly lot line fronts on Old Hook Road, a four-lane, two-way county road. A cemetery is opposite the lot. Directly east of the cemetery on Old Hook Road is the apartment complex of plaintiff, Coventry Square.
The rear, northerly lot line of Associate's property abuts Pascack Road, across from which are single-family residences. East of the lot is a Red and Tan Bus Garage (a pre-existing, nonconforming use); east of the garage is Pascack Valley Hospital. The property's westerly lot line abuts the rear yards of single-family residences fronting on Sand Road, a street that extends north from Old Hook Road to Pascack Road. There are currently pre-existing, non-conforming uses on Associates' lot: a laundromat, a dry cleaner, and a tank from which the public may purchase propane gas.
At the time Associates made its application to build an eighteen-building, 216-unit apartment complex, its property was located in the O3 zone, in which the permitted uses are office buildings, medical laboratories, and research facilities. Conditional uses in the O3 zone include certain schools, hospitals, sports facilities, and apartments that comply with the specifications of the AP zone. The AP zone, primarily a residential zone, allows single family dwellings, essential municipal uses, churches, home occupations, professional offices occupying up to fifty percent of the first floor
of residences, and apartments for three or more families. The bulk specifications of the AP zone are: minimum lot area of 15,000 square feet; minimum lot frontage of 150 feet; minimum lot depth of 100 feet; minimum side yards of twenty feet each, with an aggregate side yard of thirty percent of lot width; front-yard setback of twenty feet; rear yard of forty percent of lot depth; maximum building height of three stories and of thirty-five feet; and maximum building coverage of thirty percent of the lot. The AP zone also requires a minimum green area of thirty-five percent of the lot area, and ten-foot buffers on the side and rear of the lot where it abuts a residential zone. The ordinance does not specify a maximum unit-per-acre density for the AP zone; however, the minimum setbacks and maximum building-coverage specifications presumably serve to prevent excessive density.
The apartment complex that Associates proposed to build would meet all but two of the bulk specifications of the AP zone. Specifically, the plan deviates from the rear-yard and the aggregate side-yard setback requirements. The aggregate side-yard setback requirement is thirty percent of frontage, which would be almost 150 feet. Associates' plan has side yards of thirty-three feet each, for an aggregate of sixty-six feet. The rear-yard setback minimum is forty percent of lot depth, which would require a rear-yard setback of over 300 feet. The plan has a rear-yard setback of seventy-five feet.
Associates' development also does not comply with two design standards of Article IX of the zoning ordinance regarding parking. That section of the ordinance requires thirty-foot roadbeds where there is two-way traffic with parking perpendicular to the roadway, § 65C-86E, and prohibits parking off a "main drive," § 65C-86B. Associates proposed twenty-five-foot roadbeds accommodating two-way traffic with perpendicular parking, as well as parking off its main drive.
Because of those deviations, Associates requested design waivers for the deviations from parking standards, and a variance from the rear-yard and aggregate-side-yard setback requirements. At
the four public hearings held on the application, Associates' witnesses included its architect, planner, engineer, traffic consultant, real estate appraiser, and landscaping and lighting architect. An attorney for an owner of a house on Sand Road appeared at the hearings to oppose the project. Plaintiff did not appear at any of the hearings.
Associates' witnesses explained the reasons for the plan's deviation from the rear- and aggregate-side-yard setback requirements. First, they explained that the lot is so deep that a forty-percent-of-depth rear-yard minimum would require a rear-yard setback the length of a football field. Second, they noted that the plan places all parking in the interior of the project. If parking were on the perimeter, the side-yard and rear-yard setbacks would be measured from the lot lines to the beginning of the dwellings, and the setbacks would include the parking mews. The experts explained that, by placing the parking within the complex and the dwelling units closer to the perimeter, Associates reduced the yard measurements but also provided a landscaped, more aesthetic buffer for the neighboring residents than would exterior parking. Moreover, they explained that because the rear and side yards are entirely landscaped, the plan would readily comply with the ten-foot buffer requirements on the north and west sides of the lot, which abut residential zones. Third, the experts noted that the plan's side-yard design is much less intrusive to the Sand Road neighbors than the ordinance mandates. The ordinance requires side yards of at least twenty feet each, and aggregate side yards of at least thirty percent of the frontage. The witnesses observed that if a side yard abuts residences, the ten-foot-buffer requirement prohibits parking within the ten feet of the side yard closest to the residences.
Hence, they noted that a plan that meets all the ordinances' conditions could have aggregate side yards of 150 feet, with a 130-foot easterly side yard abutting the bus garage, and merely a twenty-foot westerly side yard abutting the residences on Sand Road. Within that twenty-foot side yard, a complying plan could
have parking ten feet from the lot line, so that the neighboring single-family residences would have cars from the complex as close as ten feet from their property lines. Associates' plan provides a thirty-three-foot landscaped buffer on each side, with no parking in the buffer.
Associates' witnesses also emphasized that the density of Associates' proposed complex is relatively low. Associates' proposal would have a density of 24.8 units per acre; the range of density for nearby complexes is 24.6 to 30.93 units per acre. The Coventry Square complex has a density of 30.93 units per acre. Moreover, because the complex would have landscaped area on forty-six percent of the lot, it more than meets the AP minimum of thirty-five percent landscaped area.
Additionally, the witnesses testified that the site was well suited for apartments, which would serve as an appropriate transitional use between the single-family residences to the north and west of the lot and the more industrial uses to its south and east. They also observed that the complex would be less intrusive to the residences than a fully complying office building would be.
The Board adopted a resolution granting the variances and the design waivers, and made fact-findings in support of the ...