On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7101-09.
The opinion of the court was delivered by: Graves, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Messano and Waugh.
The opinion of the court was delivered by GRAVES, J.A.D.
In this municipal land use case, we consider whether a commercial landowner may obtain a variance to use an adjoining residential lot to satisfy setback requirements. Plaintiff Kinderkamack Road Associates, LLC, appeals from a Law Division order affirming a resolution by defendant Mayor and Council of the Borough of Oradell (the Governing Body) rejecting plaintiff's application for a use variance. The Governing Body's resolution reversed a prior resolution by the Oradell Zoning Board of Adjustment (the Board), which granted plaintiff's application. For the reasons that follow, we affirm the Law Division's order.
Because of the legislative preference for municipal land use planning by ordinance rather than variance, use variances may be granted only in exceptional circumstances. E.g., Nuckel v. Borough of Little Ferry Planning Bd., ___ N.J. ___ (2011) (slip op. at 9) (acknowledging this preference); Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 207 (App. Div. 1999) (stating that "only exceptional cases warrant use variances"). Therefore, a municipal board of adjustment may permit "a use or principal structure in a district restricted against such use or principal structure" only where the applicant can demonstrate "special reasons" for the variance. N.J.S.A. 40:55D-70(d)(1). This requirement is known as the "positive criteria." New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 160 N.J. 1, 6 (1999). In addition, a variance application must meet the "negative criteria," ibid., by "showing that [the] variance can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70(d).
Regarding the positive criteria, the Court has stated that "'special reasons' takes its definition and meaning from the general purposes of the zoning laws" enumerated at N.J.S.A. 40:55D-2. Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 386 (1990) (citing Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 279 (1967)). In Saddle Brook Realty, LLC v. Township of Saddle Brook Zoning Board of Adjustment, 388 N.J. Super. 67, 76 (App. Div. 2006), we observed three situations in which "special reasons" may be found:
(1) where the proposed use inherently serves the public good, such as a school, hospital or public housing facility; (2) where the property owner would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone; and (3) where the use would serve the general welfare because the proposed site is particularly suitable for the proposed use. [(Internal citations and quotation marks omitted).]
Because most commercial uses are not inherently beneficial, Medici v. BPR Co., 107 N.J. 1, 18 (1987), they must generally rely on the particular suitability of the site or an undue hardship to the owner. Stop & Shop Supermarket Co. v. Bd. of Adj. of Springfield, 162 N.J. 418, 431 (2000).
All use variance applicants must satisfy the first prong of the negative criteria, which requires proof that "the variance can be granted 'without substantial detriment to the public good.'" Medici v. BPR Co., supra, 107 N.J. at 22 n.12. In addition, any proponent of a use that is not inherently beneficial must satisfy "an enhanced quality of proof" that requires "clear and specific findings by the board of adjustment that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Id. at 21. These findings "must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district." Ibid.
In 1978 and 1988, respectively, Oradell adopted and reaffirmed the Oradell Master Plan (the Master Plan), which set forth the following goals:
1. To encourage the proper relationship between land uses by promoting spatial distribution of uses and establishing areas which have their own integrity and uniformity of purpose;
2. To encourage and provide buffer zones to separate incompatible land uses;
3. To preserve and enhance the primarily residential character of the existing community by restricting incompatible land uses from established residential areas and maintaining compatible residential densities in established neighborhoods;
6. To preserve and enhance the Borough's commercial areas by defining their functional role in the Borough and enhancing the quality of life within the commercial center through an appropriate mixture of activities, in order to create a community focal point . . . .
The Master Plan also sought to encourage "[t]he elimination of incompatible land uses to ensure a consistent land use arrangement." A 2005 reexamination report confirmed these goals.
Plaintiff is the owner of four lots in the Borough of Oradell (Oradell): 623 Ridgewood Avenue (Lot 9); 619 Ridgewood Avenue (Lot 10); 281 Kinderkamack Road (Lot 11); and 265 Kinderkamack Road (Lot 13). Lot 9 is located entirely within an R-4 ...