Zoning Board Counsel’s Charge to Board Members

Editor’s note: The following information was given to members of the Board of Adjustment by Board Attorney Steven Goodell.  It contains the legal criteria that must be followed in rendering a decision in the Fisher application for a variance to permit commercial water sales on Locktown-Sergeantsville Road.

FISHER WATER FARM APPLICATION

LEGAL INSTRUCTIONS TO ZONING BOARD OF ADJUSTMENT

The Planning and Zoning Process

The Municipal Land Use Law, a law that was adopted by the New Jersey Legislature in 1975, gives towns the power to zone.  Section 2 of the Land Use Law sets forth the purposes of zoning.  It lists 15 separate purposes, the first and most basic of which is “to encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare.”  N.J.S.A. 40:55D-2(a).  Under the procedures set forth in the Land Use Law, a municipality’s Planning Board develops the Master Plan; the governing body adopts the zoning ordinances that give effect to the Master Plan; and the Zoning Board of Adjustment has the power to grant variances, or exceptions, from the strict application of those ordinances.  Variances from a use restriction are called “use variances,” or “d variances,” or “special reasons variances.”  “Because there is a strong legislative policy favoring land use planning by ordinance rather than by variance, the grant of a [use] variance will always be the exception rather than the rule.”  Cox, New Jersey Zoning and Land Use Administration (Gann, 2009), Section 7-4.1.

Nature of the Application

In the application before you, the applicant, Charles Fisher, would like to develop a water harvesting facility at the Spring Meadow Farm, located at 41 Locktown-Sergeantsville Road, Block 21, Lot 2 on the Delaware Township Tax Map.  The property is located in the A-2 Agricultural/Residential Zoning District.  The Delaware Township Land Use Ordinance permits agricultural and residential uses in the A-2 zone, but does not permit commercial uses such as a water harvesting facility.  As a result, Mr. Fisher cannot develop the water harvesting facility at that site without a use variance.

Standards for a Use Variance

The Municipal Land Use Law sets forth the standards by which a use variance can be granted.  The Land Use Law states that “the board of adjustment shall have the power to … in particular cases for special reasons, grant a variance to allow departure from regulations pursuant to section 8 of this act to permit: (1) a use or principal structure in a district restricted against such use or principal structure.” N.J.S.A. 40:55D-70(d).  The Land Use Law goes on to say that “No variance or other relief may be granted under the terms of this section, … without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.”  Ibid.

These standards for granting a variance can be broken down into two separate elements: the “positive criteria” and the “negative criteria.”  I will discuss each of these in turn.

Positive Criteria

In order to prove the positive criteria, the applicant in a use variance application must prove that “special reasons” exist for granting the variance.  “’Special reasons’ is a term difficult to define with exactitude.  Very broadly, there are sufficient ‘special reasons’ for the grant of a d variance where a proposed project carries out a purpose of zoning or the refusal to allow the project would impose on the applicant an undue hardship.”  Cox, supra, 7-4.1.  As I noted earlier, the purposes of zoning are listed in Municipal Land Use Law.

In the context of a use variance application, court decisions emphasize that the “promotion of the general welfare” is “the zoning purpose which most clearly amplifies the meaning of special reasons.”  Medici v. BPR Co., 107 NJ 1, 18 (1987).  In addition, the New Jersey Supreme Court has written that, “If the use for which a variance is sought is not one that inherently serves the public good, the applicant must prove and the board must specifically find that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use.”  Id. at 4.  “Particular suitability may be deemed a special reason where three criteria are met: ‘where…the use is one that would fill a need in the general community, where there is no other viable location, and where the property itself is particularly well-fitted for the use in terms of its location, topography or shape.’”  WaWa, Inc. v. ZBA of Tp. of Old Bridge, 2008 WL 238582 (N.J.Super A.D.), quoting Funeral Home Mgmt., Inc. v. Basralian, 319 N.J.Super 200, 210 (App. Div 1999).

To summarize:  The applicant has the burden of proving that special reasons exist.  Special reasons are defined as reasons that satisfy the purposes of zoning listed in the Municipal Land Use Law.  In a use variance context, the “promotion of the general welfare” is the zoning purpose which most clearly amplifies the meaning of special reasons.  The applicant must prove and the board must specifically find that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use.

Negative Criteria

In addition to the positive criteria, the applicant must also prove the negative criteria.  The Land Use Law sets forth two negative criteria.  The first element of the negative criteria is that no variance may be granted without a showing that it can be granted without substantial detriment to the public good.  N.J.S.A. 40:55D-70(d).  According to the New Jersey Supreme Court, “In this respect, the statutory focus is on the variance’s effect 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.’  ‘The key word here is ‘substantially.’  It comes from the statute itself.  Obviously, any permission for a nonresidential use in a residential zone may have some tendency to impair residential character, utility or value. … If on adequate proofs the board without arbitrariness concludes that the harms, if any, are not substantial, and impliedly determines that the benefits preponderate, the variance stands.’”  Medici v. BPR Co., 107 NJ 1, 22-23 n.12 (1987), quoting Yahnel v. Bd. of Adj. of Jamesburg, 79 NJ Super. 509, 519, certif. den., 41 NJ 116).

The second element of the negative criteria is that the applicant must prove that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance.  Here, “the applicant’s proofs … must reconcile the proposed use variance with the zoning ordinance’s omission of the use from those permitted in the zoning district.”  Id. at 21.  In other words, is there a reason why the use might not have been permitted by the zoning ordinance?  And even though the use was not permitted, is it nevertheless compatible with the master plan?  In addition, this second element of the negative criteria must be proven by what the New Jersey Supreme Court has called “an enhanced quality of proof.”  Ibid.  Thus, the board must make clear and specific findings that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.  Ibid.

Quasi-Judicial Nature of the Board

A zoning board acts in a “quasi-judicial” capacity when it hears an application for a variance. What this means is that the board must apply the law to the facts and use its discretion to arrive at a decision, much like a court would do.  It must use its judicial discretion to decide the matter.  The board can ground its decisions only on evidence produced at the hearing and in the record.  Kramer v. Sea Girt BOA, 45 NJ 268, 280, 284 (1965).  Newspaper reports, internet postings and other opinions or facts that were not elicited on the record at the hearing must play no role in your decision making.

In this proceeding, the record consists of the testimony elicited under oath; the exhibits that have been marked into evidence; the reports and testimony of the board’s professionals; evidence provided by members of the public; and the application with its attachments.  In addition, it is generally understood that board members have peculiar knowledge of local conditions and are therefore allowed wide latitude in the exercise of their discretion; however, if you as a board member knows that a particular situation or condition exists, and that that situation or condition would sway your vote one way or another, you must put that knowledge on the record so that the parties have a chance to answer it.  Smith v. Fair Haven ZBA, 335 NJ Super. 111, 120 (App. Div. 2000).

Credibility

You will have to decide which witnesses to believe and which witnesses not to believe.  Regardless of whether the witness is a lay person or expert, you may believe everything a witness said or only part of it or none of it.

In deciding what testimony to believe, you may take into consideration:

1.            the witness’ interest, if any in the outcome of this application;

2.            the accuracy of the witness’ recollection;

3.            the witness’ ability to know what he/she is talking about;

4.            the reasonableness of the testimony;

5.            the witness’ demeanor when questioned;

6.            the witness’ candor or evasion;

7.            the witness’ willingness or reluctance to answer;

8.            the inherent believability of the testimony;

9.            the presence of any inconsistent or contradictory statements.

Expert testimony

You have heard testimony from witnesses who were called as experts.  Generally, witnesses can testify only about the facts and are not permitted to give opinions.  However, an exception to this rule exists in the case of an expert witness.  An expert witness may give an opinion on a matter in which the witness has some special knowledge, education, skill, experience or training.  An expert witness may be able to assist you in understanding the evidence in this application or in performing your duties as a fact finder.  But I want to emphasize to you that the determination of the facts in this case rests solely with you.

In examining each expert’s opinion(s), you may consider the person’s reasons for testifying, if any.  You may also consider the qualifications of the individuals and the believability of the expert, including all the considerations that generally apply when you are deciding whether or not to believe a witness’ testimony.  The weight of the expert’s opinion depends on the facts on which the expert bases his/her opinion.  You as board members must also decide whether the facts relied upon by the expert actually exist.

Finally, you are not bound by the testimony of an expert.  You may give it whatever weight you deem is appropriate.  You may accept or reject all or part of an expert’s opinion(s).

Burden of Proof

The applicant has the burden of proof.  “This simply means that the applicant has the responsibility to set before the board the evidence necessary for it to decide, in the light of the statutory requirements, the right to the relief sought, and if the applicant does not do so, the board has no alternative but to deny the application.”  Cox, supra., Section 27-7.1.  The burden of proof is on the applicant as to both the positive and negative criteria.  Ibid.

Vote

As with any use variance, there must be five affirmative votes to grant the variance.

The only board members who are eligible to vote are those who have attended the hearings or certified that they have read the transcripts or listened to tapes of any hearing at which they have not been present.

Site Plan Approval

In addition to requesting use variance relief, the applicant has also requested that the board consider its application for site plan approval.  I recommend that the board address this question if and only if it grants use variance approval.

Further Procedures

Now that you have been advised on the law that must govern your decision, the final step will be to hear summations from the attorneys for the parties.  Since the applicant has the burden of proof, Mr. Dilts will be allowed to sum up last.  The lawyers are here as advocates for their clients.  In their presentations and in their summations they will give you their views of the evidence and their arguments in favor of their client’s position.  While you may consider their comments, nothing that the attorneys say is evidence and their comments are not binding upon you.

After the attorneys have completed their summations, the chair will entertain a motion to either grant or deny the requested variance.  Once the motion is seconded, the board can then discuss the motion.  Once the discussion has ended, the board shall call the question, and the vote recorded.

In the alternative, since this is a use variance application, your rules allow you to continue the hearing to the next meeting, in order to give you time to review your notes and consider the evidence before you vote.

There is no requirement that a board member articulate his or her rationale for the vote.  A resolution of memorialization will be prepared within forty-five days of the vote, setting forth the board’s reasons for granting or denying the variance.  That resolution will serve as the board’s final decision.