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NOT FOR PUBLICATION WITHOUT THE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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