Are you a non-profit or other community oriented organization looking to expand or relocate your facilities? The law may give you a distinct advantage in obtaining the necessary zoning approvals. The dynamics of growth, evolving missions and changing communities can lead to a need for expansion to meet current demand for services; in some cases the organization may need to relocate facilities where there is insufficient room to expand, or when changes in communities make relocation appropriate to continue the mission of the organization.
Non-profit agencies and other community based organizations often have facilities which have existed for long periods of time, predating current zoning requirements. Existing locations often no longer permit the organization’s use, rendering the organization a “prior non-conforming use” under the law. Even if the organization seeks to relocate its facilities, there are often few locations in any town where such uses are permitted, making the availability of such locations limited and expensive.
Whenever a non-conforming use seeks to expand, or where an owner seeks to construct a use not permitted in a zone, a use variance is required under N.J.S.A. 40:55D-70(d). Such variances require a five vote super-majority of the Board of Adjustment to be approved. The applicant must affirmatively prove “special reasons” justifying grant of the variance, the so-called “positive criteria” under the statute. In addition, the applicant must also prove the “negative criteria” under the statute by showing that the variance can be granted without substantial detriment to the zone plan, zoning ordinance or public good.
These statutory requirements place a heavy burden on applicants seeking a use variance. Under the leading case of Medici v. BPR Co., 107 N.J. 1(1987), in order to establish “special reasons”, the applicant must show both that the proposed use promotes one or more of the purposes of the Municipal Land Use Law, and that the general welfare is being served because the use is peculiarly suited to the location. The effect of this burden is that, in most instances, use variances are extremely difficult to obtain and rarely granted.
New Jersey courts, recognizing the need to balance the desire of municipalities to control local zoning with the community-wide need to provide for certain uses, have developed the doctrine of “inherently beneficial use”. The courts have determined that certain uses are so universally considered to be of community value that municipalities should be favorably disposed towards their inclusion. Inherently beneficial uses are typically non-profit institutional uses, but commercial uses may, under certain circumstances, be deemed inherently beneficial. Once a particular use is determined to be inherently beneficial, the “positive criteria” under the statute providing for use variances is deemed satisfied; the applicant need not prove the existence of “special reasons” under the statute.
In 2000, the Municipal Land Use Law was amended to provide in N.J.S.A. 40:55D-4 a definition of “inherently beneficial use” as follows:
“a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such uses include, but are not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure.”
The definition in the statute is not exclusive. Through the years the courts have identified a number of inherently beneficial uses in addition to those defined in the Municipal Land Use Law. These include churches and other places of worship, community shelters, public housing, public interest housing such as senior, low income and housing for the homeless, public utility installations, health care facilities for the elderly and schools for the developmentally disabled.
While the finding that a use is inheritably beneficial satisfies the positive criteria under the variance statute, the applicant still must demonstrate compliance with the negative criteria. However, even in that regard the courts have given inherently beneficial uses a decided advantage. Under the leading case of Sica v. The Board of Adjustment of the Township of Wall, 127 N.J. 152 (1992) the New Jersey Supreme Court created a four part balancing test that the Zoning Board must engage in with respect to evaluating compliance with negative criteria for inherently beneficial uses. This test requires that the Board:
- Evaluate the public interest served by the inherently beneficial use;
- Identify any adverse consequences of granting the variance;
- Consider conditions which might be imposed to mitigate any adverse consequences; and
- Then, balance the public interest in granting the variance versus the adverse impact, as lessened by any conditions imposed by the Board, and determine whether, on balance there would be a substantial detriment to the public good if the variance were granted. Only if the detriment is substantial can the Board deny the variance.
Applicants should keep in mind that the first factor in the four part Sica balancing test described above requires a determination of just “how beneficial” the beneficial use is. The Courts have determined that there is a hierarchy among beneficial uses that the Zoning Board must take into account in applying the balancing test. The more important the use is to the community, the more difficult it will be for the Board to find that any detriments which may accompany the use are substantial enough to justify denial of the application. As a result, an applicant must be careful to include detailed proofs in its presentation before the Board as to the services provided by the applicant and their benefit to the community. The applicant cannot assume that the Board has a full understanding of the breadth or depth of the services offered or of the availability of the applicant’s services for people with financial need at no or reduced cost.
The inherently beneficial use doctrine is a powerful tool in enabling non-profits and other community service organizations to expand and relocate their facilities irrespective of the prohibitions of local zoning ordinances. That does not mean, however, that such applications are simple or will not be opposed by the neighborhoods in which the facilities are located. Careful planning throughout the process is required in order to minimize community objections and craft a presentation to the Board which will result in an approval.