Advance at Branchburg II, LLC v. Township Of branchburg Board of Adjustment

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1840-12T2
ADVANCE AT BRANCHBURG II, LLC,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
v. November 1, 2013
TOWNSHIP OF BRANCHBURG BOARD OF APPELLATE DIVISION
ADJUSTMENT, a municipal public
entity of the State of New Jersey,
Defendant-Respondent.
___________________________________
Argued October 9, 2013 – Decided November 1, 2013
Before Judges Grall, Waugh, and Nugent.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County,
Docket No. L-1689-11.
Katharine A. Muscalino argued the cause for
appellant (Porzio, Bromberg & Newman, P.C.,
attorneys; Peter J. Wolfson, of counsel; Ms.
Muscalino, on the briefs).
Peter E. Henry argued the cause for
respondent (Dillon, Bitar & Luther, L.L.C.,
attorneys; Mr. Henry, of counsel and on the
brief).
Mark S. Anderson argued the cause for amicus
curiae Township of Branchburg (Woolson
Sutphen Anderson, P.C., attorneys; Mr.
Anderson and Angela C. Vidal, on the brief).
The opinion of the court was delivered by
WAUGH, J.A.D.
Plaintiff Advance at Branchburg II, LLC (Advance), appeals
the Law Division's November 13, 2012 order dismissing its action
in lieu of prerogative writs against the Township of Branchburg
Board of Adjustment (Board). We affirm.
I.
We discern the following facts and procedural history from
the record on appeal.
Advance owns a 31.79-acre property in the Township's I-2
industrial zone. The property consists primarily of cleared
land, with woods around the edges, and a wetland and riparian
zone along Route 22. In addition to an office building on an
adjacent lot, nearby uses include additional office and
industrial buildings to the west and across Route 22, single-
family homes, including those in the North Branch Hamlet and a
mobile-home park, to the north and east, and public park land to
the south.
Principal uses permitted in the I-2 zone include "[o]ffice
buildings for executive, engineering and administrative
purposes," "[s]cientific and research laboratories,"
"[w]arehousing," "[a]ssembly and fabrication using previously
manufactured components," and "[a]gricultural uses."
Branchburg, N.J. Ordinance No. 2008-1114 § 3-19. Conditional
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uses include "[g]overnmental uses and public utility
facilities," as well as principal uses that involve
"extraordinarily hazardous substance facilities." Ibid.
Housing is not a principal or conditional use in the zone.
In August 2009, Advance filed an application with the Board
seeking a use variance, N.J.S.A. 40:55D-70(d)(1), for
construction of a multi-family residential development
consisting of 292 units, of which fifty-nine would be affordable
housing units. The development as proposed consists of twenty-
eight buildings, including a mix of apartments, condominiums,
and townhouses. Affordable housing units would be integrated
with the market-rate units.
The Board took testimony and considered the application
during eleven public hearings between July 2010 and July 2011.
Advance argued before the Board that inclusion of the fifty-nine
affordable units, approximately twenty percent of the total,
rendered the entire development an inherently beneficial use for
the purposes of the (d)(1) variance. The Board ultimately
disagreed and framed its analysis of the application as a
"classic, standard" (d)(1) variance, as opposed to one in which
the positive criteria were satisfied by the inherently
beneficial use. The Board voted to deny Advance's application
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at its meeting in July 2011, and memorialized its decision in a
resolution adopted in September.
In October, Advance filed a complaint seeking to overturn
the Board's denial of the (d)(1) variance. It also asserted
claims of discriminatory zoning against the Board and Branchburg
Township (Township). In those counts, Advance sought a
builder's remedy under the Fair Housing Act, N.J.S.A. 52:27D-301
to -329.19.1 See Toll Bros., Inc. v. Twp. of W. Windsor, 173
N.J. 502, 512 (2001). In April 2012, the Board and the Township
moved for dismissal of the claims seeking the builder's remedy.
The motion was granted in April.2
Following argument by counsel in October 2012, the trial
judge placed an oral decision on the record explaining his
reasons for upholding the Board's denial of the (d)(1) variance
and dismissing Advance's amended complaint. The judge concluded
that granting the (d)(1) variance requested by Advance would
amount to awarding a builder's remedy through the variance
1
The parties have argued, and we agree, that the merits of this
case do not turn on the status of the Township's compliance with
the Fair Housing Act. Nothing in our decision would prevent the
Township from deciding to change the zoning in the future to
comply with its Fair Housing Act obligations or prevent Advance
from seeking to build on its land in the event it is ultimately
found to be entitled to a builder's remedy.
2
Advance filed an amended complaint shortly thereafter, but did
not add any additional claims.
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process rather than through the mechanism established by the
Fair Housing Act. He entered an implementing order on November
13. This appeal followed. We subsequently granted the
Township's application to appear as amicus curiae.
II.
On appeal, Advance argues that (1) its proposed housing
development is an inherently beneficial use in the context of a
(d)(1) variance application, (2) the requested (d)(1) variance
would not constitute zoning by variance or interfere with the
Township's ability to plan for affordable housing, and (3) the
trial judge erred in failing to find that the positive criteria
outweighed the negative criteria even if the proposed
development is not inherently beneficial. Before addressing the
merits of the case, we outline the law that governs our
consideration of this appeal.
A.
Our standard of review for the grant or denial of a
variance is the same as that applied by the Law Division.
Bressman v. Gash, 131 N.J. 517, 529 (1993). We defer to a
municipal board's factual findings as long as they have an
adequate basis in the record. Lang v. Zoning Bd. of Adjustment
of N. Caldwell, 160 N.J. 41, 58 (1999); Fallone Props., LLC v.
Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div.
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2004). We are ordinarily not bound by an agency's determination
on a question of law, In re Distrib. of Liquid Assets, 168 N.J.
1, 11 (2001), and a municipal board's construction of its own
ordinances is reviewed de novo. Nevertheless, we "recognize the
board's knowledge of local circumstances and accord deference to
its interpretation." Fallone, supra, 369 N.J. Super. at 562;
accord DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super.
161, 174 (App. Div.), certif. denied, 181 N.J. 544 (2004). Like
the trial judge, we may not "substitute [our] own judgment for
that of the municipal board invested with the power . . . to
pass upon the application." Kenwood Assocs. v. Bd. of
Adjustment of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976).
Where an applicant's proposal for a variance is denied, the
applicant bears "the heavy burden of proving that the evidence
presented to the board was so overwhelmingly in favor of the
applicant that the board's action can be said to be arbitrary,
capricious or unreasonable." Med. Realty Assocs. v. Bd. of
Adjustment of Summit, 228 N.J. Super. 226, 233 (App. Div. 1988).
This is because "more is to be feared in the way of breakdown of
zoning plans from grants than denials of variances." Galdieri
v. Bd. of Adjustment of Morris, 165 N.J. Super. 505, 515 (App.
Div. 1979).
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In Kinderkamack Road Associates, LLC v. Mayor & Council of
Borough of Oradell, 421 N.J. Super. 8, 12-13 (App. Div. 2011),
we reiterated that
[b]ecause of the legislative preference for
municipal land use planning by ordinance
rather than variance, use variances [under
N.J.S.A. 40:55D-70(d)(1)] may be granted
only in exceptional circumstances. E.g.,
Nuckel v. Borough of Little Ferry Planning
Bd., 208 N.J. 95 [(2011)] (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
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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).]
. . . .
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., 107 N.J. 1, 22 n.12 (1987)]. 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.
See also Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd.
of Adjustment (Medical Center), 343 N.J. Super. 177, 200 (App.
Div. 2001) (quoting Smart SMR of N.Y., Inc. v. Borough of Fair
Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998)) ("[I]f the
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proposed use is inherently beneficial, the applicant's burden of
proof is significantly lessened because 'an inherently
beneficial use presumptively satisfies the positive
criteria.'").
The Legislature has defined an "inherently beneficial use"
as one "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."
N.J.S.A. 40:55D-4. An inherently beneficial use is evaluated
under the standard set forth in Sica v. Board of Adjustment of
Township of Wall, 127 N.J. 152, 164-66 (1992), which calls for a
balancing of the positive and negative criteria against one
another, taking into account the public interest involved, the
detriment to the community, and possible conditions the board
can apply to mitigate any detriment. The applicant under this
more relaxed standard need not satisfy the "enhanced quality of
proof" set forth by the Court in Medici, supra, 107 N.J. at 21.
Under Medici, the first inquiry under the negative criteria
focuses on the potential effects of the variance on the
surrounding properties. "The board of adjustment must evaluate
the impact of the proposed use variance upon the adjacent
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properties and determine whether or not it will cause such
damage to the character of the neighborhood as to constitute
substantial detriment to the public good." Id. at 22 n.12
(internal quotation marks and citation omitted).
Satisfaction of the second prong of the negative criteria
analysis normally requires the applicant also "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.'" Smart SMR, supra, 152 N.J.
at 323 (quoting Medici, supra, 107 N.J. at 21). The enhanced
standard articulated in Medici guards against "'arbitrary action
and untrammeled administrative discretion.'" Medici, supra, 107
N.J. at 22 (quoting Ward v. Scott, 11 N.J. 117, 126 (1952)).
This reflects the policy concern that "'because of their
peculiar knowledge of local conditions[, boards of adjustment]
must be allowed wide latitude in the exercise of [variance]
discretion[,]'" and zoning change is most appropriately
accomplished legislatively, rather than through excessive and
arbitrary use of variance discretion. Id. at 23 (quoting Kramer
v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965)).
B.
We turn first to the issue of whether the housing
development with an affordable housing element proposed by
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Advance is, as a matter of law, an inherently beneficial use for
the purposes of a (d)(1) variance application. That
determination will govern whether we apply the Sica or Medici
standard to our review of the Board's actions.
Advance relies on our decision in Homes of Hope, Inc. v.
Eastampton Township Land Use Planning Board, 409 N.J. Super.
330, 336 (App. Div. 2009) (citing Sica, supra, 127 N.J. at 165),
in which we stated that "[a]ffordable housing is an inherently
beneficial use." The Board and the Township, however, point to
the fact that Homes of Hope involved a proposal to build eight
units of affordable, multi-family housing in a residential zone
that permitted only single-family homes. They argue that,
although a project including only affordable housing units may
be inherently beneficial, the addition of affordable units to a
proposed development in which most of the proposed units are
market-rate housing does not make the entire project inherently
beneficial. We agree.
In support of its position, Advance relies on several
unreported opinions of this court. They concern cases in which
(1) the development at issue was totally composed of affordable
units, (2) only the affordable units of a larger residential
development required a variance, and (3) the issue was not
actually determined by the court. It is well established that
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unreported opinions have no general precedential effect and that
they may not be cited for that purpose. R. 1:36-3. Although a
panel of this court may find the prior unreported opinions of
other panels to be persuasive, our review of the specific
opinions relied upon by Advance persuades us that they are
unhelpful because the factual situations in those cases are not
substantially similar to the case before us.
Relying on Medical Center, supra, 343 N.J. Super. at 193,
Advance asserts that "the market units are inherently beneficial
by virtue of their support of the affordable units." The
inherently beneficial use in Medical Center was the operation of
an acute care hospital, the issue was
whether the "back-office" functions of an
admittedly inherently beneficial use under
the [Municipal Land Use Law], N.J.S.A.
40:55D-70d, (section d), fall within the
umbrella of the core use so as [to] preclude
the necessity of applying the enhanced
burden of proof required for section d
relief.
[Id. at 185.]
In our opinion, we set out a framework for analysis of that
issue and remanded to the board.
The gist of Advance's argument is that, because the
financial viability of the affordable units proposed for its
development depends on its ability to build four times as many
market-rate units, those market-rate units are an integral part
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of the inherently beneficial use of affordable housing, just as
the back-office units were integral to the inherently beneficial
operation of the hospital. We do not find that reasoning
persuasive.
In Medical Center, we remanded and focused the decision-
making process on the function of the relatively small number of
back-office units in relation to the core healthcare purposes of
the larger hospital. Id. at 205-211. We opined that, although
some of the units might appropriately be built in the
residentially zoned area adjacent to the hospital because of the
integration of their function with the operation of the hospital
and the need for close proximity to it, others might not. Id.
at 206-09. However, it was the larger beneficial use that
potentially permitted the smaller non-inherently beneficial uses
in the residential zone. There is nothing in our opinion to
suggest that the analysis we established would be applicable
where the predominant use is not the inherently beneficial one.
In addition, we do not find the financial benefit upon
which Advance relies, even if combined with the social benefit
of mixed-income housing, to be comparable to the relationship
between the hospital and back-office operations on which we
relied in Medical Center. There, the concern was whether the
back-office facilities needed to be near the hospital on an
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ongoing basis so that it could function as a healthcare
institution. Here, the issue is whether Advance needs to build
a large, predominantly market-based development in the
industrial zone to finance its ability to build a smaller number
of affordable units in the same location.
A developer's ability to build market-rate units
undoubtedly facilitates its building of affordable housing
financially, and the mixture of affordable and market-rate
housing may well provide benefits to the residents of both.
However, we see no basis under our current statutory or
decisional law to hold that the inclusion of affordable housing
as a relatively small component of a much larger residential
development transforms the entire project into an inherently
beneficial use for purposes of obtaining a (d)(1) variance under
circumstances such as those existing here.
Consequently, the trial judge did not err in declining to
find that Advance's project was an inherently beneficial use.
[At the direction of the court, the
discussion of the remaining issues in the
appeal has been omitted from the published
version of the opinion.]
Affirmed.
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