Opinion
DOCKET NO. A-1840-12T2
11-01-2013
ADVANCE AT BRANCHBURG II, LLC, Plaintiff-Appellant, v. TOWNSHIP OF BRANCHBURG BOARD OF ADJUSTMENT, a municipal public entity of the State of New Jersey, Defendant-Respondent.
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).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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 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 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. 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.
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.
Advance filed an amended complaint shortly thereafter, but did not add any additional claims.
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 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. 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).
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).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 proposed use is inherently beneficial, the applicant's burden of proof is significantly lessened because 'an inherently beneficial use presumptively satisfies the positive criteria.'").
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).]
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.
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 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 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 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.In our opinion, we set out a framework for analysis of that issue and remanded to the board.
[Id. at 185.]
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 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 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.
C.
We now turn to Advance's argument that the Board erred in finding that its project did not satisfy the positive and negative criteria for a (d)(1) variance under the Medici standards.
Advance contends the development would promote the general welfare by virtue of its affordable housing component and its advancement of several purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, which are listed at N.J.S.A. 40:55D-2. Advance points to the following: (1) purpose (a), to encourage the appropriate use of land, because the property is better suited for residential than industrial development; (2) purpose (m), fostering "efficient use of land," by "capitaliz[ing] on [the property's] inclusion in the sewer service area and Suburban Planning Area, as well as its access to state and county roads," thereby "maximiz[ing] the potential of the existing infrastructure . . . by applying it toward inclusionary development," rather than "wasting these resources on either second-rate industrial buildings, that lack any market demand, or low-density, single family homes"; (3) purpose (g), to provide for a variety of uses, by "creating a very under-represented form of housing" in the Township — specifically, multi-family housing, including affordable multi-family homes; and (4) purpose (h), "promot[ing] the free flow of traffic," by "produc[ing] significantly less traffic than . . . the previously approved . . . [o]ffice [c]omplex" and adding a traffic signal to the area.
The determination of whether a project satisfies the positive criteria based on its "peculiar" or "particular" suitability for a proposed use is "inherently fact-specific and site-sensitive." Price v. Himeji, 214 N.J. 263, 292 (2013). An applicant need not establish that a property is the only possible location for the proposed use, but must demonstrate that "the property is particularly suited for the proposed purpose, in the sense that it is especially well-suited for the use, in spite of the fact that the use is not permitted in the zone." Id. at 292-93. "Most often, whether a proposal meets that test will depend on the adequacy of the record compiled before the zoning board and the sufficiency of the board's explanation of the reasons on which its decision to grant or deny the application for a use variance is based." Id. at 293.
The record reflects that the Board considered extensive testimony from Advance's experts in support of the contention that the property "is particularly suited for development as an inclusionary multi-family housing development." Peter Steck, Advance's planner, opined that, because the property "is not a prime site for industrial or office use, because of . . . the suitability of development, [and] because of the utilities there, because of its location on the perimeter of the North Branch hamlet . . . [,] it is peculiarly suited to a higher density residential use." He also highlighted what he described as the "long history of viewing the property as being eligible for uses other than the current designation and that includes residential uses and multi-family residential uses," and asserted that in contrast, many acres of land zoned for industrial use in the Township were empty, and many existing industrial and office facilities had vacancies.
Steck further opined the property had "fairly unique characteristics," based on being "in a transition area" between commercial and residential uses, and being located on Route 22 without direct access or visibility from that highway. He asserted that the property was not "a class A [industrial] site" due to lack of visibility and access from Route 22. He pointed to the fact that the property "is in a sewer service and a public water service area, so it can accommodate more intense development than if it was outside of a sewer service area." He also noted that the State had classified the area as P-2, meaning a suburban area intended to accommodate future growth.
Advance's counsel argued before the Board that the proposed project satisfied the "special reasons" criteria because it "carries out important purposes of planning" and advances the general welfare by offering affordable housing; "promotes the most appropriate use of land because it is compatible with the North Branch Hamlet and the Friendly Mobile Home Park, produces less traffic than permitted uses and uses a portion of the zone that is less appropriate for office and manufacturing uses"; offers "a more efficient use of the land" than the already-approved uses; "furthers the purposes of the MLUL in that it offers a type of residential product that is seriously under-represented and needed in Branchburg"; maximizes the site's use of its sewer capacity and connection; and "is a better land use with respect to its consistency with the adjacent municipality of Bridgewater."
With respect to the negative criteria, Advance contends that the record does not support a finding that the proposed development "threatens any substantial detriment to the public good." Advance also argues the Board erred in finding that its proposal would substantially impair the intent and purpose of the zoning plan and zoning ordinance. The crux of its argument appears to be that the Board placed undue emphasis on the size and scale of the proposed development in weighing the negative criteria. It asserts that because the size and density of the proposed development "comport with the I-2 zone," the Board's concerns about scale could not be "about damage to the I-2 zone." It further avers that (1) the Township's periodic consideration of the property's potential for residential use, and in particular the North Branch Vision Plan, indicate that "Branchburg's view of the Property and its relationship to the I-2 zone and the North Branch Hamlet are in flux," justifying the grant of the variance under Medici, supra, 107 N.J. at 21 n.11; (2) the Township has a "glut of industrially zoned land" and "severe lack of multi-family and affordable housing"; and (3) the Board was unduly "fixated on the impact of the proposed use variance, not on the remainder of the I-2 zone, but on the North Branch Hamlet."
Advance also argues, correctly, that the Board did not employ a Sica process to reduce the detrimental effects of a variance by imposing conditions. Sica, supra, 127 N.J. at 166. Sica, however, called for such balancing in the context of an inherently beneficial use case, which we have already held is not the situation here.
--------
Advance's arguments tend to obscure the clear distinctions between the proposed large-scale, high-density residential use, on the one hand, and the industrial uses for which the property was zoned. The Board evaluated the extent to which that use would affect the property and environs and would depart from the purpose of the zoning plan. This is not a case in which a developer seeks to construct high-density housing in a single-family zone.
During the hearings, Board members and public commenters expressed concern about the proposed shift from industrial to residential use, including the juxtaposition of a new residential development with the historic North Branch Hamlet; the need for night-time lighting of residences; traffic, parking, and safety issues relating to residential use; lack of recreational options for the development's teenage residents; effects on the Township's school-age population, revenue, and taxes; and the hope that an office complex would create jobs.
Elizabeth McKenzie, a consultant to the Board and also the Township's affordable housing planner, testified that the Township's current affordable housing plan, adopted in July 2010, already provided for an inclusionary development and that the Township had "a lot of other land that could be considered" for affordable housing sites. She opined that the proposed density of use was reasonable for the type of development proposed, but that "the [T]ownship should have an opportunity to . . . decide whether or not [Advance's property] is the site." She further testified that, in developing its 2010 plan, the Township had considered Advance's property as an affordable housing site, but ultimately chose not to include Advance's proposed inclusionary development in the plan "because 'public reaction to the notion of multi-family development on this site has not been encouraging and the [T]ownship has determined to leave the existing zoning in place.'"
Michael Sullivan, the professional planner advising the Board, refuted Advance's argument that the site was particularly suited for residential use in part because the Township had excess I-2 sites, stating that the amount of property zoned for industrial uses "and the market for such zoning are not too far out of balance, if they are at all." Sullivan further testified that the proposed development was "not analogous to either" of the adjacent single-family zones, but rather "an entirely new approach, with a gross density of 9.18 multi-family dwellings per acre." He opined that, although "the residential use may be a compatible element, the relative density suggests that the intensity of uses are out of whack." He concluded that "[t]he development of 292 dwellings on this site . . . will have a dramatic effect on the character of North Branch."
Sullivan acknowledged that the proposed development would result in less traffic than the approved office complex, but highlighted the development's likely detrimental impacts on the area's levels of lighting, noise, parking, and other "types of activities at a higher level." Sullivan also expressed his view that approval of the variance would necessitate rezoning the property "because it's that big of a deal." The Township's historic preservation commissioner, Bill Schleicher, testified that the proposed development was inconsistent with a 2010 North Branch Vision Plan for the area, as well as with historic design standards adopted by the Township.
In the implementing resolution, the Board explained its decision as follows:
15. Although Applicant's architect testified that the smaller scale "hamlet-type" homes in the proposed development were located along County Route 614, he conceded that these were not structures like those located in the adjacent North Branch Hamlet. He opined that the proposed density of development was required to support the economics of the Affordable Housing units being constructed. The Board, however, did not think this an appropriate rationale, but rather tha[t] it sounded like the dynamics of a builder's remedy. Branchburg Township, fully compliant with all currently-established Affordable Housing requirements, would not be subject to such treatment.
16. Notwithstanding the traditional styles and materials proposed for construction in the project, the Board was concerned about scale and height of the various residence structures, especially relative to the small North Branch Hamlet structures immediately across County Route 614. In addition, though not yet fully detailed by Applicant, the Board was concerned about the apparent need for numerous retaining walls, expressing concern about their expanse, magnitude, number and height, again immediately across County Route 614 from the North Branch Hamlet residential area.
17. Applicant's planner opined that the proposed development could be analyzed on the basis of a bulk variance-free application to permit the use, and that the Subject Property could be easily developed
for this purpose, given the extent of the open area available. Nevertheless, Applicant's engineer indicated that even based on the conceptual layout, 40% of the tree canopy on the Subject Property would have to be cleared for the detention basins required by the extensive development which Applicant proposed. This exceeds by a significant measure the 30% maximum clearing permitted by ordinance.
18. Applicant's planner also opined concerning the nature of the "d" variance relief for the proposed project. Assuming the application of the "inherently beneficial use" concept due to the inclusion of Affordable Housing units, he suggested that the result of the SICA balancing test should be an approval. He also proceeded, however, to analyze the application as a classic, standard "d" variance, concluding that the proofs offered were satisfactory on both the positive and negative criteria.
. . . .
23. Viewed as a classic, standard "d" variance application, the Board concluded that the Subject Property did not, in fact, constitute a property particularly suited to the proposed use. Further, the Board concluded that Applicant had failed in the required reconciliation of the proposed use with the Master Plan of the Township. Although Applicant urged that the Board should find this matter satisfied by way of the existence of a number of Reexamination Reports which had suggested possible residential use in the area of the Subject Property, the Board concluded that the issue was controlled by the fact that none of the suggestions of the Reexamination Reports in this regard were ever adopted into the Township's Master Plan. Therefore, the actual Master Plan for the municipality maintained the industrial and related
commercial uses of the I-2 Zone as the preferred development scheme for the Subject Property. Though other uses exist, in fact, in the general area of the Subject Property, no use of the magnitude of that proposed by Applicant exists in conflict with the Master Plan.
24. The Board also finds it pertinent and relevant that, notwithstanding the periodic suggestions for modification of master planning for the area, neither the Planning Board nor the Governing Body, clearly aware of the subject for consideration, took action to amend the Master Plan or to amend the Zoning Ordinance to permit alternative or additional uses of the sort sought by Applicant.
25. The Board also concluded that the scale of the various structures proposed . . . was such as to result in significant undesirable impacts on the neighboring resi-dential areas, particularly the immediately proximate historic North Branch Hamlet.
. . . .
27. As a result of all of the foregoing, the Board concluded that Applicant had failed in the required proofs for the desired "d" variance relief; that Applicant failed to satisfy the enhanced quality of proof regarding consistency of its proposal with the Township's Master Plan and Zoning Ordinance; that Applicant has failed to show any substantial hardship (recognizing also that the Subject Property is presently approved for an office development), nor that the site is particularly suited for a high density residential development as proposed; that the public good would be negatively impacted and substantially impaired should the proposed development be permitted by variance; and that Applicant failed to
satisfy its burden to prove that the requested relief could be granted without substantially impairing the intent and purpose of the zoning plan and zoning ordinance.
As we noted above, our standard of review requires us (1) to "recognize the board's knowledge of local circumstances and accord deference to its interpretation," Fallone, supra, 369 N.J. Super. at 562 (citations omitted), and (2) to refrain from "substitut[ing] [our] own judgment for that of the municipal board invested with the power . . . to pass upon the application," Kenwood Assocs., supra, 141 N.J. Super. at 4 (citations omitted).
Having reviewed the Board's decision in light of the record and the applicable law, we are satisfied that Advance has not met "the heavy burden" of proving that the evidence it presented to the Board was "so overwhelmingly in favor" of its application for the (d)(1) variance that the Board's decision can be said to be "arbitrary, capricious or unreasonable." Med. Realty Assocs., supra, 228 N.J. Super. at 233. This is especially so in light of "the legislative preference for municipal land use planning by ordinance rather than variance." Kinderkamack, supra, 421 N.J. Super. at 12.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION