On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication May 10, 1996.
Before Judges Baime, Villanueva, and Kimmelman. The opinion of the Court was delivered by Kimmelman, J.A.D. (temporarily assigned).
The opinion of the court was delivered by: Kimmelman
The opinion of the Court was delivered byKIMMELMAN, J.A.D. (temporarily assigned).
Defendant Verona Board of Adjustment (hereinafter "Board") appeals from a judgment of the Law Division reversing the Board's denial of plaintiff The Children's Institute's application for a use variance to convert a 44,000-square-foot non-conforming office building into a day school for approximately 130 handicapped children.
Presently, plaintiff operates a day school for handicapped children in Livingston on property leased from the Livingston Board of Education. Hoffmann-LaRoche has donated to plaintiff property in Verona consisting of a 44,000-square-foot office building together with five accessory parking lots, in all, a seven-acre site designated as 1 Sunset Avenue. A small portion of the property, two parking lots, is located in Montclair. The office building is a non-conforming use and has been vacant for the past four years. The office building is presently located in a R-2 single-family residential zone, wherein schools are not a permitted use. When built, the office building complied with the zone's former designation as C-2 commercial. Plaintiff seeks to relocate its school from Livingston to the office building.
In denying plaintiff's variance application, the Board acknowledged that plaintiff's proposed use is an inherently beneficial use, but found that the impact of the proposed use on traffic would create a substantial detriment to the neighborhood and to the public good. The Board found in its resolution that "the total impact of the increased movement of vehicular traffic in the neighborhood would have a substantial negative impact."
The trial court reversed the Board and granted the variance subject to a remand to the Board limited solely to the imposition of reasonable conditions regarding traffic dispersal as it enters and exits the facility. The Board appeals, contending that the trial court impermissibly substituted its own judgment for that of the Board and further, that the Board's denial was supported by the evidence and was not arbitrary, capricious, or unreasonable. We disagree and affirm the trial court.
An applicant for a variance must prove both positive criteria and negative criteria, as required by N.J.S.A. 40:55D-70d. Sica v. Board of Adjustment of Wall, 127 N.J. 152, 603 A.2d 30 (1992), succinctly sets forth the applicant's obligation as follows:
Under the positive criteria, the applicant must establish "special reasons" for the grant of the variance. The negative criteria require proof that the variance "can be granted without substantial detriment to the public good" and that it "will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."
[ Id. at 156 (quoting N.J.S.A. 40:55D-70d).]
Should the proposed use be deemed to be inherently beneficial, the applicant, in turn, is regarded as having satisfied the positive criteria, meaning "special reasons" required by N.J.S.A. 40:55D-70d. Id. at 159-60. Here, plaintiff operates a non-profit school serving the special educational and therapeutic needs of emotionally disturbed, autistic, and handicapped preschool children. The school draws its student body from approximately forty communities throughout Essex County and northern New Jersey. It has an average daily enrollment of 130 handicapped students. We must conclude, as did the Board, that the proposed use as a school for handicapped children is inherently beneficial.
A board of adjustment, having concluded that a proposed use is inherently beneficial, must then determine whether the use variance satisfies the negative criteria. As noted above, this calls for a board to ascertain whether the grant of the variance may be made "without substantial detriment to the public good" and without "substantially impairing the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70d; Sica, supra, 127 N.J. at 156. Of course, a non-residential use in a residential zone will produce some adverse effect, but a minimal adverse impact may not outweigh the positive criteria resulting from an inherently beneficial use. Sica, supra, 127 N.J. at 165. The Supreme Court in Sica established a four-step test to be used by local boards of adjustment when balancing the positive and negative criteria. Id. at 165-66.
First, the local board should identify the public interest at stake. Id. at 165. Obviously, some inherently beneficial uses are more compelling than others. Ibid. In our view, a non-profit school to serve the special educational and therapeutic ...