Relaxed Standard of Coventry Square, Not Stricter Standard of Medici, Applies to Proof of Negative Criteria for Conditonal Use Variances

TSI East Brunswick, LLC v. East Brunswick Bd. of Adj., 215 N.J. 26 (2013).  The Municipal Land Use Law (“MLUL”), N.J.S.A. 40:55D-70(d)(3), authorizes applications for conditional use variances.  A conditional use is one that is permitted by ordinance provided that the applicant meets all the conditions for that use that the ordinance prescribes.  An applicant who cannot meet all the conditions for such a use can seek a conditional use variance.  This is in contrast to a use variance, which seeks permission for a use that is otherwise forbidden in the zone.  Both use variances and conditional use variances require proof of both the “positive criteria” (that is, “special reasons” for the grant of a variance) and the “negative criteria” (that is, no “substantial detriment to the public good … [or] substantial[  ] impair[ment of] the intent and purpose of the zone plan and zoning ordinance”) of N.J.S.A. 40:55D-70(d).

In Medici v. BPR Co., 107 N.J. 1 (1987), the Supreme Court held that proof of the positive and negative criteria in connection with a use variance would be governed by an enhanced standard.  That was because use variances are disfavored, and the policy is to “prevent the improper use of the variance power” in order to avoid piecemeal use variances, whose cumulative effect would be to undercut the zoning ordinance’s specification of permitted uses.  In Coventry Square, Inc. v. Westwood Bd. of Adj., 138 N.J. 285 (1994), which involved conditional use variances, the Court decided that, as to the positive criteria, the Medici enhanced standard of proof would not apply.  The Court reasoned that conditional use variances are very unlike use variances, since the latter seeks approval of a prohibited use, while the former seeks a deviation only from conditions on an otherwise allowable use. 

The issue in today’s case was whether the stricter Medici standard of proof or the more relaxed Coventry Square regime is applicable to the negative criteria on a conditional use variance application.  In an opinion by Justice Hoens, the Court concluded that the Coventry Square standard would govern the negative as well as the positive criteria.  Justice Hoens gave three reasons for that result. 

First, the same policy that led the Court in Coventry Square to reject the strict Medici standard applied here.  A use variance “proceeds in the context of a use that the governing body has prohibited,” while a conditional use variance “proceeds in the context of a use that, if it complies with certain conditions, is permitted,” which is “an entirely different premise.”

Second, though plaintiff, an objector to the conditional use variance application, had asserted that Appellate Division cases on this issue were split and/or differed with Coventry Square, neither of those contentions was correct.  Justice Hoens analyzed each of the cases and showed that there was no inconsistency.

Finally, plaintiff had relied heavily on Cox & Koenig, New Jersey Zoning and Land Use Administration.  The authors, whom the Court characterized as “the leading commentators on the MLUL,” had stated that nothing in Coventry Square suggested that the enhanced quality of proof of the negative criteria that Medici announced would not also apply to conditional use variances, and that “the rationale for such enhanced quality of proof applies with equal force” to conditional use variances.  Justice Hoens disagreed.  The authors’ view would “effectively erase the distinction that a conditional use creates.”

This was the correct decision.  Conditional uses are different, as the MLUL recognizes, and the Coventry Square rationale applies equally to both the positive and negative criteria.  The use variance context in which the Medici test arose is a unique one, and even there, as Justice Hoens observed, the Court later made Medici inapplicable to use variances involving “inherently beneficial” uses, in Sica v. Wall Tp. Bd. of Adj., 127 N.J. 152 (1992) [Disclosure:  I argued in the Supreme Court on behalf of the successful plaintiff in Sica].  To the extent that today’s decision further limits Medici to its own context, the Court has moved the law in the proper direction.