Use Variance Applicant Need Not Show That Subject Property is the Only Available Site for the Use

Price v. Himeji, LLC, 214 N.J. 263 (2013).  Himeji, LLC applied to the Union City Board of Adjustment for a use variance, density, height, and other variances, and a waiver necessary for the construction of a multi-story residential building in a zone where that use was not permitted.  Only plaintiff opposed the application.  The Board granted all the variances and the waiver and approved the site plan.  In approving the use variance, the Board was required to and did conclude that the use variance promotes the general welfare because the subject property was particularly suitable for the proposed use.

Plaintiff appealed to the Law Division.  That court reversed the use variance, holding that Himeji was required to have shown that the subject property was not merely particularly suitable, but was the only site on which the use could be located.  The Law Division did not reach the issue of whether the other approvals were proper.  Himeji appealed to the Appellate Division, which reversed.  The panel rejected the Law Division’s conclusion that the particular suitability standard required a showing that only the subject property was a possible location for the use.  The Appellate Division then exercised its original jurisdiction and upheld the other approvals that the Board had granted.  The Supreme Court granted plaintiff’s petition for certification and affirmed in an opinion by Justice Hoens.

The arbitrary, capricious, and unreasonable standard of review applied to the Board’s decision, Justice Hoens stated.  But she emphasized that the Board could not “in the guise of a variance proceeding, usurp the legislative power reserved to the governing body of the municipality to amend or revise the [zoning] plan.”  The Court found that that had not occurred here.

Justice Hoens proceeded to offer an exhaustive analysis of use variances in general and the “particular suitability” standard in particular.  She recognized that three prior appellate decisions, Mocco v. Job, 56 N.J. Super. 468 (App. Div. 1959), Kohl v. Mayor of Fair Lawn, 50 N.J. 268 (1967), and Fobe Assocs. v. Mayor of Demarest, 74 N.J. 519 (1977), contained language that might be read to support the Law Division’s restrictive view.  But “[w]hen considered in context,” those decisions “did not equate particularly suitable with uniquely suited nor did they demand that there be no other alternative site.  Instead, each turned on an evaluation of the sufficiency of the factual record and the adequacy of the explanation of reasons given by the Board in its resolution as the support for its decision.” 

Rather than the narrow, bright-line test adopted by the Law Division, the correct “particular suitability” standard “is an inherently site-specific and fact-sensitive one.  Although the availability of alternative locations is relevant to the analysis, demonstrating that a property is particularly suitable for a use does not require proof that there is no other potential location for the use nor does it demand evidence that the project ‘must’ be built in a particular location.”  The Appellate Division correctly viewed the record and the Board’s extensive resolution in support of the use variance as justifying the grant of that variance.

Justice Hoens then turned to the remaining approvals, which the Appellate Divison had upheld using its original jurisdiction.  After discussing cases that address when original jurisdiction is appropriately exercised, the Court found that the Appellate Division was within its rights to exercise that jurisdiction here.  On the merits, the Board had correctly considered the other variances “as ancillary to the principal relief being sought.”  While the Board had not ignored the other variances (indeed, the Board required Himeji to reduce both the building’s height and its number of units), it had properly viewed those variances as part of “the overall project design” in the Board’s consideration of the use variance.  The same was true of the other variances and the waiver.

This decision is true to the Court’s ongoing policy of viewing municipal land use applications practically, while also adhering to the requirements of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., from which the “particular suitability” requirement springs.  This was not the first time that the Court found it necessary to clarify language from prior cases (here, Kohl and Fobe) in dealing with use variances.  In Sica v. Wall Tp. Bd. of Adj., 127 N.J. 152 (1992), the Court needed to refine a statement that it made in Medici v. BPR Co., 107 N.J. 1 (1987), in order to make clear that “inherently beneficial” uses would be treated differently for use variance purposes than other uses would be.  [Disclosure:  I argued the Sica case in the Supreme Court for the successful plaintiff]. 

Many land use practitioners had long believed, based on cases such as DeSimone v. Greater Englewood Housing Corp., 56 N.J. 428 (1970), and Kessler v. Bowker, 174 N.J. Super. 478 (App. Div. 1979), that applications for a use variance that also seek other variances are to be viewed holistically, and that the proofs supporting the use variance can effectively subsume the other variances.  The Court’s decision in this case vindicates that view.