Inherently Beneficial Use? Yes. Negative Criteria Satisifed? No.

The Salt & Light Company, Inc. v. Willingboro Tp. Bd. of Adj., ___ N.J. Super. ___ (App. Div. 2011). Normally, in considering whether to grant a use variance, boards of adjustment are supposed to weigh the “special reasons” for the requested variance (also known as the “positive criteria”) against any substantial detriment to the public good and/or the intent and purpose of the zone plan and zoning ordinance (also known as the “negative criteria”). Both the positive and negative criteria derive from language in the Municipal Land Use Law, N.J.S.A. 40:55D-70(d). In Sica v. Wall Tp. Bd. of Adj., 127 N.J. 152 (1992), a case that I argued for the winning party in the Supreme Court, the Court held that an “inherently beneficial use” satisfies the positive criteria without more, and that in cases of inherently beneficial uses, the negative criteria will be satisfied if a balance of the positive and negative criteria tips in favor of the variance sought. The idea was to make it easier to obtain variances for inherently beneficial uses such as schools, health care facilities, low- and moderate-income housing, and the like.

In this case, a developer sought to construct a duplex for transitional housing for the homeless. The defendant Board concluded that the proposed use was not inherently beneficial. The Board also ruled that plaintiff did not satisfy the negative criteria because the duplex would be “located in a single-family residential zone … in the middle of a block containing only single-family homes” and would therefore be “a substantial detriment to the neighborhood.” Finally, the Board observed that “Willingboro was built many years ago as a grouping of single-family houses” and that “there are no duplex homes in the Township.”

Plaintiff appealed to the Law Division. That court reversed the Board. Transitional housing for the homeless, the Law Division found, is an inherently beneficial use, which satisifes the positive criteria under Sica. As to the negative criteria, the Law Division found no substantial impairment of the zone plan or zoning ordinance. Naturally, a duplex in a single-family residential zone would have some tendency to impair the single-family character of the neighborhood. But there was no substantial detriment aside from the fact that the structure would house two families.

The Board appealed to the Appellate Division. In an opinion by Judge Skillman, the panel affirmed the Law Division’s ruling that the proposed use was inherently beneficial and therefore satisfied the positive criteria. But Judge Skillman held that the Law Division had erred in reversing the Board’s conclusion on the negative criteria. As Judge Skillman recited, under Sica, a board’s decision on the balancing involved with the decision on the negative criteria is reversible only if arbitrary, capricious or unreasonable. The panel found no such grounds for reversal of the Board here. Instead, the Appellate Division accepted the rationale stated by the Board for finding the negative criteria unsatisfied: the duplex would cause a substantial detriment to the neighborhood because it was surrounded by single-family homes, and that detriment was substantial enough to outweigh the positive criteria arising out of this public-interest use.

The Appellate Division’s ruling seems conclusory and circular. A use variance, by definition, differs from the permitted uses in the zone. Absent something more, such as “increased density, visual impairment or diminishment in property values, or any other detriment aside from the fact that the unit accommodates two families” (all things that the Law Division mentioned as potential substantial detriments but found lacking), the mere fact that the proposed use is unlike those nearby it in the zone offers no basis for a finding that the negative criteria are not satisfied.

The panel cited authority to the effect that some boards do not give adequate weight to the negative criteria where inherently beneficial uses are concerned. Whether or not that is so, it appears that in this case there was no real evidence of any substantial detriment to the public good, the zone plan, or the zoning ordinance. The Law Division appears to have gotten it right. Whether the developer will attempt to take this case to the Supreme Court remains to be seen.