On appeal from the Superior Court of New Jersey, Union County, Law Division, Docket No. L-2427-05.
The opinion of the court was delivered by: Messano, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 18, 2006
Before Judges Stern, Collester and Messano.
This matter presents an issue of first impression in this State. Specifically, we must decide whether a municipal zoning board of adjustment should apply the same standards of review for density variances, N.J.S.A. 40:55D-70d(5), as it does for use variances, N.J.S.A. 40:55d-70d(1); Medici v. BPR Co., 107 N.J. 1 (1987). Because we conclude the same review standards should not be employed, we reverse and remand this matter to the Rahway Board of Adjustment (the Board) for further proceedings consistent with this opinion.
I. Plaintiffs, William and Deborah Grubbs, own property located at 1709 Lawrence Street, in Rahway (the property). The property measures 90.5 feet by 152.07 feet and consists of 14,117 square feet. Pursuant to the Rahway Zoning Ordinance (Ordinance), it is located in an R-2 zone that permits single-family dwellings. Minimum lot sizes of fifty by one hundred feet and minimum area sizes of 5000 square feet are required in the R-2 zone.
Plaintiffs submitted an application for development, see N.J.S.A. 40:55D-3, that sought permission to subdivide their single, existing conforming lot into three new non-conforming lots and to construct two new one-family homes on two of the new lots, maintaining the existing one-family home on the third.
The application also sought variances from the zone's front yard setback, side yard setback, and parking requirements.
Lenore Slothower,*fn1 Rahway's Administrative Officer, deemed the application complete and determined plaintiffs required a density variance pursuant to N.J.S.A. 40:55D-70d(5). She referred the matter to the Board. A public hearing on the application was held on April 12, 2005 and by a vote of three to three with one abstention, the Board denied the application.
In a memorializing resolution approved May 23, the Board found the following facts and reached the following conclusions:
1. The Zoning Board of Adjustment has jurisdiction to act upon the Application, with a majority vote required for approval of all matters with the exception of any "use" variance under the provisions of N.J.S.A. 40:55D-70d for which five affirmative votes are required.
CONCLUSIONS AND DETERMINATIONS
1. In order to obtain a use variance, an Applicant is required to prove the existence of "special reasons" for the variance, and those "special reasons" must be reasons which promote the general purposes of zoning as express in N.J.S.A. 40:55D-2. See Medici v. BPR Co., 107 N.J. 1 (1987). For applications that do not inherently serve the public good, such as this application, an Applicant must demonstrate by credible evidence that special reasons exist because the proposed site is particularly suited for the proposed use . . . . Alternatively, an applicant may establish the existence of "special reasons" by demonstrating proof of undue hardship, that is, that the property at issue cannot reasonably be developed with a conforming use. . . . In addition, an applicant for a use variance must satisfy the so-called negative criteria, that is an Applicant must establish that a grant of the variance would not impair the intent and purpose of the Zone Plan and Zoning Ordinances of the City. In a residential project such as the Applicant's proposed subdivision, the Applicant need not meet the enhanced quality of proof demanded of commercial uses by Medici v. BPR Co., 107 N.J. 1 (1987).
2. The Applicant requires a use variance because the proposed development exceeds the density permitted in the zone. In the past, the Board has been asked to extend the more relaxed standards of review imposed in floor area ratio cases (see, e.g., Coventry Square Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285 (1994) and Randolph Town Center v. Twp. Of Randolph, 324 N.J. Super. 412 (App. Div. 1999)) to "density" cases, and it has declined to do so. No reported case has extended the Randolph standard to a density case, and it is not the Board's prerogative to extend the law, only to apply it. Thus, the appropriate standard of review is the non-commercial Medici standard articulated above. (emphasis added.)
The balance of the Board's resolution adequately stated its conclusions with respect to the evidence presented at the hearing and its application of the above standards to that evidence.
Plaintiffs appealed to the Law Division. In a written opinion, the trial judge vacated the Board's denial of the application, concluded that the Board lacked jurisdiction over the matter, and remanded the application to the Rahway Planning Board. The judge reasoned that the Ordinance required minor subdivision approval when the application sought to create two lots; the creation of any greater number of lots required major subdivision approval under the Ordinance. He noted that pursuant to N.J.S.A. 40:55D-70d(5), the Board had jurisdiction over any density variance except for ...