The New Jersey Supreme Court recently clarified whether an application for a use variance based on the assertion that the site is “particularly suitable for the proposed use” requires proof that the project must be built on that site because it is the only one available. The issue arose because the Law Division and Appellate Division had reached divergent opinions regarding the flexibility of the particularly suitable standard.
The Facts of the Case
In Price v. Himeji, L.L.C., and Union City Zoning Bd. of Adjustment, Himeji, LLC applied to the Union City Zoning Board for several use variances required for construction of a multi-unit residential building in a mixed residential zone that borders a zone permitting multi-family high-rises. During hearings before the Zoning Board, four experts and members of the public testified in support of the project. Only plaintiff Larry Price opposed it. The planning expert asserted that the property was particularly suitable for the proposed project, and that it was consistent with the municipality’s Master Plan.
After Himeji made several requested alterations to its plans, the Board approved the application, granting all of the requested variances. It issued a detailed resolution, specifically adopting the planning expert’s rationale with respect to the property’s suitability for the project. It found that the project satisfied numerous purposes of the Municipal Land Use Law (MLUL) and would not be detrimental to the public good or substantially impair the intent and purpose of the zone plan and zoning ordinance.
Price subsequently filed a complaint to pursue an action in lieu of prerogative writs in the Law Division. The court found that the Board’s conclusion that the property was particularly suitable for the proposed use was arbitrary, capricious, and unreasonable. The court asserted that satisfaction of the particularly suitable standard required the Board to determine that the proposed site was the only available location for the use and that no other viable locations requiring less extensive variances were available. On appeal, the Appellate Division reversed, finding that he trial court’s interpretation of the particularly suitable standard was too narrow. It held that the court should have evaluated the specific facts and circumstances of Himeji’s application in light of the zoning ordinance and purposes of the MLUL.
The Court’s Decision
The state Supreme Court agreed with the Appellate Division’s more flexible approach. It held that evaluation of the particularly suitable standard is fact-specific and site-sensitive, requiring a finding that the general welfare would be served because the proposed use is peculiarly fitted to the particular location.
As further explained by the panel, “Detailed factual findings that distinguish the property from surrounding sites and demonstrate a need for the proposed use may help to establish that the property is ‘particularly suitable’ for the proposed use and a lack of such findings may be fatal when tested on review.”
The court further clarified that although the availability of alternative locations is relevant to this analysis, it does not bar a finding of particular suitability. “Rather, it is an inquiry into whether the property is particularly suited for the proposed purpose, in the sense that it is especially well-suited for the use, in spite of the fact that the use is not permitted in the zone. Most often, whether a proposal meets that test will depend on the adequacy of the record compiled before the zoning board and the sufficiency of the board’s explanation of the reasons on which its decision to grant or deny the application for a use variance is based,” the court explained.
For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.