In TSI East Brunswick, L.L.C. v. Zoning Bd. of Adjustment of Twp. of East Brunswick, the Supreme Court of New Jersey considered the standard of proof required for securing a variance for a conditional use. The court concluded that applicants are not required to prove the negative criteria by an enhanced quality of proofs.
The Facts of the Case
The case largely involved the application of two precedents established by the court for conditional and traditional use variances. In Medici v. BPR Co., 107 N.J. 1 (1987), the court held that zoning boards must address the positive and the negative criteria found in the New Jersey Municipal Land Use Law, and required that the negative criteria be demonstrated in accordance with an enhanced quality of proofs in the context of a use variance. In so ruling, the court recognized that granting a variance is inherently at odds with the uses authorized by the governing body.
In Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285 (1994), the court found that the burden of proof required to obtain a use variance is too burdensome for a conditional use variance. It established a less-stringent standard for conditional use variances. However, due to the facts of the case, the new standard was only applied to the positive criteria.
The Court’s Decision
In this case, the state Supreme Court concluded that the Zoning Board was correct in not requiring the applicant to prove the negative criteria by enhanced quality of proofs. It held that the standard of proof established in Coventry Square applies to both negative and positive criteria.
As explained in the unanimous opinion, “Were we to require that the Medici standards for consideration of the negative criteria be applied in the conditional use context, we would effectively erase the distinction that a conditional use creates. Rather than recognizing that the use is essentially permitted, albeit with conditions, we would be presuming that the use is prohibited unless the conditions are met or are proven in accordance with the standards ordinarily required to secure a use variance. By demanding that an applicant for a conditional use variance prove the negative criteria by the enhanced quality of proofs, we would erase the distinction that the governing body drew when it designated the use as conditional.”
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.