Where an applicant would like to introduce a use that is not permitted within a particular zone, that applicant is required to obtain a use variance – a very difficult variance to secure. The Municipal Land Use Law authorizes local zoning boards to grant a use variance where: (1) “special reasons” exist for the variance (the positive criteria); and (2) the variance can be granted without substantial detriment to the public good and will not substantially impair the intent and purposes of the zone plan and zoning ordinance (the negative criteria). N.J.S.A. 40:55d 70(d). Where a proposed use is determined to be “inherently beneficial” to society, the positive criteria and negative criteria requirements are less stringent. Specifically, the positive criteria is presumptively satisfied and the negative criteria is resolved by balancing the benefits of the project against any detriments, considering whether any detrimental effect can be reduced by imposing reasonable conditions, and then determining after weighing of the positive and negative factors (as ameliorated by the conditions) whether the grant of the variance would cause a substantial detriment to the public good. The NJ Supreme Court outlines and discusses the balancing standard for an inherently beneficial use variance in the well known case of Sica v. Wall Board of Adjustment., 127 N.J. 152 (1992).
Over time, at least some Zoning Boards began to downplay the importance of the zone plan focusing their attention on only the issue of whether a particular use qualified as inherently beneficial. In response, the New Jersey legislature in 1997 amended the Municipal Land Use Law to make clear that even inherently beneficial uses must meet the negative criteria and evaluate whether the proposed use does have a negative impact on the overall zone plan of the community. The relevant provision now reads:
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, 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.” N.J.S.A. 40:55D-70(d).
The proponent of an inherently beneficial use variance must address the statutory negative criteria and prove that on balance the public benefit outweighs any impairment to the zone plan and zoning ordinance or any detriment to the neighborhood. Where the proofs demonstrate that because of the specific property’s location and characteristics the detrimental effects of an inherently beneficial use outweigh the public benefit, a Zoning Board is authorized to deny the requested variance. Stop & Shop Supermarket Co. v. Board of Adj. summarizes the legal standard applicable to a use variance for an inherently beneficial use. For a copy of the case, click here.