By Nicholas Talvacchia and Sean Dougherty
The New Jersey Supreme Court recently issued an important decision that will affect developers seeking use variances for inherently beneficial uses, including senior housing, hospitals, schools, childcare centers, and similar projects.
What This Means for Developers
The Supreme Court’s decision clarifies that applicants for inherently beneficial use variances must satisfy both of the Municipal Land Use Law’s (“MLUL”) statutory negative criteria. While Sica v. Board of Adjustment of Wall focused on whether a variance could be granted without substantial detriment to the public good, Monarch Communities, LLC v. Township of Montville makes clear that applicants must also demonstrate that the proposed variance will not substantially impair the intent and the purpose of the municipality’s zoning plan and zoning ordinance. Before balancing the positive and negative criteria, zoning boards must first determine whether the applicant has satisfied this second statutory requirement. Applicants should therefore develop a thorough evidentiary record demonstrating why the proposed development does not substantially impair the municipality’s zoning plan and zoning ordinance.
The Court’s decision places greater emphasis on how a proposed development fits within a municipality’s planning objectives. Developers should expect zoning boards to closely examine whether a project is consistent with the municipality’s zoning plan and zoning ordinance, even when the proposed use is unquestionably beneficial to the public.
What Changed?
In Monarch Communities, LLC v. Township of Montville, the Court held that the four-step framework established in Sica v. Board of Adjustment of Wall must be revised to conform to the Legislature’s 1997 amendment to the MLUL, specifically N.J.S.A. 40:55D-70.
Under the revised framework, the Court explained that Sica no longer fully reflected the MLUL because it expressly incorporated only the first statutory negative criterion and did not expressly require applicants to satisfy the second—that the proposed variance “will not substantially impair the intent and the purpose of the municipality’s zoning plan and zoning ordinance.” To bring the judicial framework into conformity with the statute, the Court revised the fourth step of the Sica analysis to require zoning boards to first determine whether the applicant has satisfied the second statutory negative criterion before balancing the positive and negative criteria. If an applicant cannot make that showing, the variance may not be granted.
Preparing Future Applications
As zoning boards begin applying the Supreme Court’s revised standard, applicants should ensure that variance applications include a thorough evidentiary record addressing the MLUL’s second negative criterion. Working with experienced land use counsel can help anticipate issues early in the approval process and ensure that applications fully address the MLUL’s statutory requirements.
The Cooper Levenson Land Use Department is available if you have questions. Contact Nicholas Talvacchia, Esq. at (609) 572-7544, ntalvacchia@cooperlevenson.com or Benjamin Ojserkis, Esq. at (609) 572-7550, bojserkis@cooperlevenson.com
Sean Dougherty is a Summer Associate at Cooper Levenson. He is a J.D. Candidate at NSU Shepard Broad College of Law. Sean may be reached at sdougherty@cooperlevenson.com
The content of this post should not be construed as legal advice. You should consult a lawyer concerning your particular situation and any specific legal question you may have.