On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-9063-03.
Before Judges Axelrad, R.B. Coleman, and Holston, Jr.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2005
The novel question presented by this appeal is what standard applies under the Municipal Land Use Law to an application for a subdivision of property that had previously been granted a use variance. More particularly, does the application only require a simple majority vote of the members present under N.J.S.A. 40:55D-9a,*fn1 or is it an expansion of a nonconforming use, or a use variance which has the enhanced requirement of five affirmative votes under N.J.S.A. 40:55D- 70(d)?
The North Brunswick Township Zoning Board of Adjustment (Board) concluded that a"d" variance was required and denied plaintiff's application because the approval was by a bare majority of the members present, four votes of the seven-member board. Following plaintiff's filing of a complaint in lieu of prerogative writs, the Law Division judge concluded that the application was not for a"d" variance because it did not fall within those items enumerated in N.J.S.A. 40:55D-70(d). By order of June 2, 2004, the court reversed the Board and deemed plaintiff's application approved as having the requisite affirmative vote of a majority of the quorum of the Board.
On appeal, the Board contends: (1) when property that has been granted a use variance is sought to be subdivided, a variance is necessary under N.J.S.A. 40:55D-70(d); (2) reduction in lot size of a property previously granted use variance relief is equivalent to expansion of a nonconforming use and requires the same level of proof; (3) the trial court's reliance on N.J.S.A. 40:55D-76 is incorrect; and (4) uses granted by variance relief do not become permanent uses.
We affirm substantially for the reasons expressed by Judge Hurley in his comprehensive written opinion of June 2, 2004, which we recite in its entirety:*fn2
This matter arises out of an application for a minor subdivision of property, currently improved with a two-family dwelling. Plaintiff is the owner of property known commonly as 966 Newton Street and designated as Block 168, Lot 26.01, as shown on the official tax map of the Township of North Brunswick (hereinafter the"Property"). In June of 2002, the North Brunswick Zoning Board of Adjustment (hereinafter the"Board") granted plaintiff a variance pursuant to the provisions of N.J.S.A. 40:55D-70(d) that permitted Plaintiff to build a two family residence on the Property. The Property is located within the R-3, single-family residential zone. Single-family residential dwellings are a principal permitted use within the zone. The lots as proposed do not conform to the bulk requirements of the zone. Plaintiff's property is 15,246 square feet in area. Plaintiff seeks to create two lots: a 7,241.85 square feet lot with the two-family dwelling and an 8,004.15 square feet lot with a proposed single-family dwelling.
The zoning officer informed Plaintiff that the subdivision application would be an expansion of a nonconforming use and would therefore require a"d" variance. Plaintiff disagreed and contended that only a bulk variance was required. As a result, Plaintiff applied to the Board for both a"d" and"c" variance. The Board considered Plaintiff's application at hearings on August 19, 2003 and September 16, 2003. His application received a 4-3 vote in favor of granting the subdivision. However, the Board denied the application, emphasizing that five affirmative votes were necessary pursuant to the statute.*fn3 The three dissenting Board members asserted the subdivision would create a use that was too intense for the Property, and would therefore have a negative impact on the neighborhood. Plaintiff's position is that this standard was not appropriate because the application was not for an expansion of a nonconforming use, but rather it was for a permitted use pursuant to the grant of the use variance. Plaintiff now moves for summary judgment seeking a determination that his application is deemed approved because he received the required majority of votes for a"c" variance and because a"d" variance was not necessary.
Plaintiff contends that the zoning officer's determination that a"d" variance was required was in error because the two family house became a conforming and permitted use once the variance was granted. According to Plaintiff, the subdivision only required a"c" variance and four affirmative votes from the seven-member board. Plaintiff submits that he demonstrated his proposed subdivision was consistent with similar sized lots in the neighborhood and was consistent with the neighborhood's pattern of development, contrary to the dissenting board member's findings. In fact, he designed the proposed single family house to conform with the neighboring properties to alleviate any adverse impact to the zone plan.
While it is true that generally a subdivision of a lot with a nonconforming use is considered to be an expansion of a nonconforming use and a"d" variance is required, plaintiff submits that a use permitted by a variance is vastly different from a nonconforming use. Plaintiff contends that pursuant to Industrial Lessors, Inc. v. City of Garfield, 119 N.J. Super. 181, 183 (App. Div. 1972), a variance is a quasi-legislative determination that the use or structure allowed is not offensive; in essence, the use or structure allowed becomes a conforming use. Therefore, Plaintiff submits that the two family dwelling became a conforming, permitted use.
Defendant Board contends that Plaintiff's assertion that"once a use variance is granted the use becomes conforming" is contrary to the Municipal Land Use Law (MLUL). N.J.S.A. 40:55D- 7 states that a variance is permission to depart from the literal requirements of a zoning ordinance; it does not say that the use becomes conforming. According to Defendant, the granting of a use variance therefore creates a situation similar to a pre-existing nonconforming use. Regardless of how the nonconforming use came into existence, the Board's interest remains the same.
When Plaintiff came to the Board seeking a variance for the two-family dwelling, the Board considered the facts presented as they were at the time. Defendant contends that we cannot speculate on what action the Board may have taken if Plaintiff had originally proposed a smaller lot for the two-family dwelling, as he is doing now. The Board may not have approved the variance if the two-family dwelling was to be built on the smaller piece of property. The subdivision Plaintiff seeks will make the lot on which the two-family dwelling exists less than half the size of the lot on which it was approved. The Board has a continued interest in whether a site remains particularly suited once a use variance has been granted. Further, Defendant ...