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United Water New Jersey v. Zoning Board of Adjustment of the Borough of Montvale


August 17, 2011


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2213-09.

Per curiam.


Argued March 21, 2011

Before Judges Grall, C.L. Miniman and LeWinn.

Montvale Cares, Inc. (Montvale Cares) is a non-profit corporation that objected to an application for development filed with the Zoning Board of Adjustment of the Borough of Montvale (Board). The applicant, United Water New Jersey (United Water), owns a 1.8 acre parcel in a residential zone that it currently uses as the site for a 1.5 million gallon water storage tank. United Water sought a variance pursuant to N.J.S.A. 40:55D-70d(2) to expand that non-conforming use by adding a pumping station and a storage tank and automated system for injecting sodium hypochlorite into the water supply. The Board denied the variance as to both projects by a vote of five to two. See N.J.S.A. 40:55D-70d (requiring five affirmative votes for approval of a use variance).

United Water filed an action in lieu of prerogative writs to challenge the Board's determination, and Montvale Cares intervened. The trial court concluded that the proposed expanded uses are inherently beneficial and that their benefits "far outweigh[] any negative impacts to the community or the zoning plan." Accordingly, the court granted the use variance and remanded for a hearing on site plan approval.

Montvale Cares appeals; the Board does not appeal but has filed a brief relying upon and supplementing the arguments presented by Montvale Cares. Because the record supports the Board's determination that United Water did not establish special reasons authorizing the variance for the pumping station, we reverse and reinstate the Board's denial of the variance as to that portion of the project. The Board's resolution does not, however, permit us to discern how it balanced the positive and negative criteria relevant to the storage and injection of sodium hypochlorite. Accordingly, we vacate the trial court's grant of that variance and remand to permit the Board to reconsider and explain its reasons for denying approval of that project.

United Water is a public utility and the Board of Public Utilities (BPU) has "general supervision and regulation of and jurisdiction and control over [United Water's] property, property rights, equipment, facilities and franchises" to the extent necessary to carry out that agency's statutory responsibilities. N.J.S.A. 48:2-13a. United Water's application for development concerns a property consisting of about 1.8 acres, which is situated in a single-family residential zone in Montvale. Since 1960, with the approval of the BPU, the property has been used as the site of a 1.5 million gallon water storage tank. When this application was filed, the use was not authorized by the zoning ordinance, and while this application was pending, the zoning ordinance was amended to provide that this existing use is conditionally permitted in all non-residential zones but "not permitted in any residential zones." Code of The Borough of Montvale c. 128, § 9.10.2.

With the existing tank, United Water serves all of Montvale other than an area known as pressure district fifty (PD-50), which is at an elevation too high to receive water from the tank without pumping. United Water presently serves its customers in PD-50, between 200 and 300 hundred residences, without pumps by delivering water from United Water New York, which has a supply at a higher elevation in Rockland County, New York. In addition to the residences in PD-50 that receive water from New York, there are other homes in PD-50 that use water from private wells.

United Water sought a variance to expand its use of the property by adding a pumping station and a storage tank for sodium hypochlorite to treat the water leaving the tank. The two expansions address distinct issues.

First, the pumping station would permit water delivery from the existing storage tank to United Water's customers in PD-50 and water delivery at a higher pressure to customers in other areas and the fire department. To that end, United Water proposed erecting a building to house three pumps that would operate on a regular basis as well as redundant features - a fourth pump to operate in the event of malfunction, and a generator to be used in the event of power outage.

United Water considers the pumping station important to its provision of a continuous supply of quality water to current customers in PD-50. United Water's arrangement with United Water New York is approved by the New York Department of Environmental Conservation and conditions United Water New York's obligation on "prior fulfillment of its existing obligations for the bulk supply of water to current municipal corporations and contract entities."*fn1 United Water admits that it has not received any formal notice that United Water New York will be unable to meet the needs of PD-50, but based on informal communications, United Water believes that United Water New York's performance is at risk because of significant developments in Rockland County that are depleting its water surplus.

United Water also contended that New Jersey's standard for permissible arsenic levels is more demanding than the New York standard, which may create a problem in the future. It acknowledges, however, that water obtained from United Water New York has so far been in compliance with New Jersey standards.

United Water also acknowledged that the pumping station needed to serve PD-50 could be placed on another site if United Water incurred the expense to purchase other property through a private sale or condemnation approved by the BPU, which United Water would not get unless it could not use property it already owned. United Water indicated that a regulation calls for placement of pumps above ground where feasible, but it admitted that it has obtained approval to place pumps underground in other instances. Nothing in the record indicates that United Water sought approval to place this pump system underground.

The second issue United Water sought to address was maintenance of consistent chlorine levels in the general water supply. To achieve that goal, United Water proposed a 150 gallon storage tank for sodium hypochlorite, which would also be located in the pumping structure.

United Water currently adds the chemical manually into the existing storage tank. In contrast, with the proposed storage tank and instruments, the chlorination process will be monitored and the chemical will be added to the water automatically as it leaves the tank. United Water admits there are no water-quality problems or accidental spills injuring workers, property or bystanders as a result of the current system. United Water asserts, however, that the proposed system will improve the water supply by assuring consistent levels of the chemical that disinfects the water and minimizing the risk of accidental harm.

United Water apparently anticipates using a larger quantity of the chemical with the new system but did not explain why. According to its engineer, the chemical is currently delivered several times a year but with the new system there would be deliveries by a chemical tank truck every four days during peak season and once a week at other times. The engineer acknowledged that this estimate could overstate the quantity of chemicals needed; he noted that with greater use of the water in the storage tank, the need for chlorination would diminish. There is no dispute that sodium hypochlorite is deemed hazardous.

I This court and the trial court apply the same standards when reviewing a local board's action on a zoning application. N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). The grant or denial of a use variance is committed to the sound discretion of the board, because the members have superior knowledge of local conditions and are "best equipped to assess the merits of variance applications." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App. Div. 2001). "Courts give greater deference to variance denials than to grants of variances, since variances tend to impair sound zoning." Id. at 199.

Our review is "limited to determining whether the board's decision was arbitrary, unreasonable, or capricious." Id. at 198. That review also requires us to "determine whether the board followed the statutory guidelines and properly exercised its discretion." Id. at 199.

An applicant must "prove both positive and negative criteria to obtain a use variance." Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998); N.J.S.A. 40:55D-70d. The proofs required on those issues vary greatly depending on whether the use is "inherently beneficial." Ibid.

When the use is not inherently beneficial, the positive criteria require proof that "'the use promotes the general welfare because the proposed site is particularly suitable for the proposed use.'" Ibid. (quoting Medici v. BPR Co., 107 N.J. 1, 4 (1987)). And, the negative criteria require proof "that the variance can be granted 'without substantial detriment to the public good,'" and a demonstration through "an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Ibid. (quoting Medici, supra, 107 N.J. at 21, 22 n.12).

In contrast, "when the proposed use is inherently beneficial, an applicant's burden of proof is significantly lessened." Ibid. "An inherently beneficial use presumptively satisfies the positive criteria." Ibid. Moreover, the enhanced standard of proof applicable to other uses is not required.

Ibid.; Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 160-61 (1992). The positive and negative criteria are simply balanced. Sica, supra, 127 N.J. at 166; see Med. Ctr. at Princeton, supra, 343 N.J. Super. at 211-13.


Given the difference between the standards of proof, whether a use is "inherently beneficial" is a critical preliminary question. We therefore first consider whether United Water established that either of the expanded uses it proposed is inherently beneficial. We conclude that it did not.

The term is defined in N.J.S.A. 40:55D-4 as: a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such a use includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure.

Because the Legislature's list of uses it deems inherently beneficial is not exhaustive, the Legislature's exclusion of public utilities from that list is not determinative. Thus, local boards and courts must consider whether a non-designated use "fundamentally serves the public good and promotes the general welfare." Ibid.

This statutory standard is consistent with the standard enunciated by our Supreme Court, which has held that to qualify as an inherently beneficial use, it must "inherently serve[] the public good." Medici, supra, 107 N.J. at 4; see Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 279 (1967). In Kohl, the Court considered a dairy's application to expand a milk processing and bottling facility. 50 N.J. at 270. Although the Court recognized the importance of milk to the general welfare, the Court concluded that the activity the dairy wanted to expand, unlike the activity that takes place in a school, "does not in itself provide the basis for a finding of special reasons any more than does the manufacture and distribution of any other necessary commodity." Id. at 279.

There is further reason to conclude that the statutory and judicial standards are consistent with the Court's decision in Kohl. None of the uses the Legislature has identified as inherently beneficial involves the distribution of critical commodities, including public utilities like water or power. All of the statutorily designated uses involve uses where it is the activity itself, not the end product, that is inherently beneficial - hospitals, caring for the sick; schools, teaching; child care and group homes, the care and supervision of persons in need of it; and solar and photovoltaic energy facilities, production of energy from renewable sources. N.J.S.A. 40:55D-4.

When the inherently beneficial character of activities related to the manufacture and delivery of commodities and services that promote the general welfare is at issue, the existing need and supply are relevant factors. In Kohl, for instance, the Court deemed it important the dairy had not presented evidence that the municipality or others in the area had "any need of the additional milk supply that would be created by [the proposed] expansion." 50 N.J. at 281.

More recent decisions of the Court also indicate the importance of need for a service or commodity to a finding that a proposed use is inherently beneficial. In Smart, the Court declined to hold that a cell phone tower is an inherently beneficial use, in part, because "inherently beneficial uses are generally limited in number within a single municipality" and there was an absence of evidence relevant to need given a prior approval of a facility that provides the same service. 152 N.J. at 329-30.

A provision of the Municipal Land Use Law, N.J.S.A. 40:55D-19, suggests that the Legislature has a similar view of the relevance of need to approval of variances for non-conforming uses proposed by regulated public utilities. That statute permits the BPU to reverse a local board's denial of approval for a proposed use upon the BPU's finding that the facility is necessary for the "service, convenience or welfare of the public." Ibid.

For the foregoing reasons, we conclude that in order to qualify its proposed expansions of the non-conforming use on this property, United Water had to establish that the pumping station and the improvements related to sodium hypochlorite were necessary to the existing inherently beneficial activity - provision of water to Montvale. United Water did not assert that its proposed improvements would advance the general welfare in any other municipality.

In this case, an additional showing of need is required. When an applicant seeks approval of more than one non-conforming use on the ground that it is an accessory to an existing inherently beneficial use, the applicant must show that "each proposed use is inherently beneficial when considered with its relationship to the" existing inherently beneficial use. Med. Ctr. at Princeton, supra, 343 N.J. Super. at 210. To meet this burden, "the applicant [must] present the necessary proofs to specifically establish that a) the nature of the particular function, and b) how such function is integrated into the core function of the wholly beneficial use and c) why the location of each particular function is critical to fulfilling the mission and primary objective of the inherently beneficial use." Id. at 207.

United Water's proofs on the question of its need to add a pumping station at this site were non-existent. For one reason, there was no competent evidence of an immediate or probable threat to PD-50's supply of water and no evidence of problems created by low pressure elsewhere in the system. More important, United Water admitted that the pumping station could be placed elsewhere. Thus, it could not establish that its proposed pumping activity at this site is critical to fulfilling the objective of the inherently beneficial water storage tank on site. See ibid.

Similarly, there is no evidence in the record that the storage of chemicals and an automated system to monitor and deliver them to the water supply is critical to fulfilling United Water's mission of delivering a safe water supply to Montvale. There is nothing that indicates any problem with the present system or a probable risk to anyone.


Having concluded that the Board did not err in finding that the proposed uses are not inherently beneficial, we must consider whether the Board abused its discretion by denying the variance under the criteria applicable to a non-inherently beneficial use. As noted above, to establish the positive criteria, United Water had to prove that these uses "'promote[] the general welfare because the proposed site is particularly suitable for the proposed use.'" Smart, supra, 152 N.J. at 323 (quoting Medici, supra, 107 N.J. at 4). To establish the negative criteria, United Water had to prove "that the variance can be granted without substantial detriment to the public good," and demonstrate through "an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Ibid. (internal quotations omitted).

United Water did not establish the positive criteria with respect to its proposed pumping station. It admitted that it could establish the pumping station at other locations, and thus the Board could not find that this site was particularly suitable for the pumping station. A failure to establish the positive criteria ends the inquiry. Accordingly, we reverse the trial court's grant of a variance for the pumping station and affirm the Board's denial.

In contrast, the evidence relevant to chemical treatment of the water supply on this site does not permit us to dispose of this matter based on United Water's failure to prove the positive criteria. There is evidence that would permit the Board to find that the proposed improvements related to sodium hypochlorite located on this particular site would advance the general welfare. United Water's engineer testified that an on-site system would reduce the risk of harm to United Water employees who presently deposit the chemical into the water storage tank manually. There is also evidence that would permit the Board to find the automated system would better maintain uniform levels of the chemical in the system and thereby improve water quality and enhance the general welfare of Montvale.

The Board's resolution does not address the foregoing evidence tending to establish the positive criteria for this aspect of United Water's proposal, nor it does include any findings of fact or conclusions on the negative criteria relevant to the storage and automated system for sodium hypochlorite. Without a statement of the Board's findings and conclusions on these matters, we cannot review its determination or perform our obligation to ensure that it is based on the statutory guidelines. Accordingly, we vacate the trial court's grant of this portion of the variance and remand to the Board for further consideration.

On remand, the Board must make specific findings of relevant fact and apply the positive and negative criteria applicable to this proposed use, which is not inherently beneficial.

The trial court's order is vacated; the Board's denial of a variance for the pumping station is affirmed; the Board's denial of a variance for the chemical storage tank and the automated system for delivery of sodium hypochlorite is reversed and remanded for further proceedings in conformity with this decision.

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