The New Jersey Supreme Court Clarifies the Elusive Concept of “Particular Suitability”

July 2013Articles In the Zone

The New Jersey Supreme Court finally shed some much needed light on the elusive concept of “particular suitability.” In Larry Price v. Himeji, LLC and the Union City Zoning Board of Adjustment, (A-46-11) (068971) decided June 25, 2013, the New Jersey Supreme Court clarified the meaning and intent of “particular suitability” as it relates to commercial use variances considered pursuant to N.J.S.A. 40:55D-70(d)(1). In addition, the Supreme Court reaffirmed the principle that bulk or “c” variance relief pursuant to N.J.S.A. 40:55D-70(c)(2) is subsumed into the underlying use variance, so as to not require an applicant to provide separate, independent proofs for bulk variance relief when requesting a use variance. The Supreme Court’s guidance in this decision is much needed by land use practitioners, but still leaves each applicant to evaluate the specific issues of a particular property’s “suitability” for a proposed use.

The Himeji company applied to the Union City Zoning Board of Adjustment for a d(1) variance and multiple c(2) variances to permit the construction of a multi-unit high rise (six to eight stories due to variation in property slope) residential building in a R residential zone consisting of one to four family dwellings. The subject property borders a zone that permits multi-family high-rise buildings and is located at the end of the Palisades escarpment. A Steep Slope Overlay District further limited development by restricting the number of units as a function of the property slope.

The proposed project was opposed by Plaintiff Price, a long-time advocate for the strict enforcement of all zoning regulations in Union City. During the hearing process, Defendant Himeji revised its plan, including reducting the overall building height. The Zoning Board granted all of the requested variance relief, including a D(5) density variance, a D(6) height variance and numerous bulk variances. In its resolution, the Board adopted the applicant’s planning expert’s rationale with regard to the property’s particular suitability for the development of the proposed project, as well as the special reasons supporting grant of the requested use variance. The Board concluded that the bulk variance relief was subsumed within the grant of the use variance and found sufficient support in the record for the requested bulk variances.

Plaintiff Price filed a lawsuit challenging the Zoning Board’s action and resolution. The Trial Court reversed the grant of the variances, and determined that “particular suitability” required a subject property be uniquely suited for the proposed use. In other words, the subject property and it alone would be the only property that could accommodate the requested use. On this basis, the Trial Court found the applicant had failed to demonstrate its property was singularly and uniquely suited for the proposed use. The Trial Court vacated the use variance approval, and therefore, did not rule on the bulk variances.

On appeal in an unpublished opinion, the Appellate Division reversed and reinstated the Zoning Board’s resolution of approval. The Appellate Division found that the Trial Court’s interpretation of “particular suitability” was too narrow, and that a broader understanding of “particular suitability” was required under the MLUL. In reviewing the record before the Zoning Board, the Appellate Division found the property was in fact particularly suitable for the proposed use, and the Board’s decision was entitled to deference. The Appellate Division exercised its original jurisdiction to resolve the issues relative to the density, height and bulk variances based on the record in an effort to avoid a remand and further litigation.

On grant of Price’s Petition for Certification to the Supreme Court, the Supreme Court affirmed the Appellate Division’s decision. In an opinion delivered by Justice Hoens, the Supreme Court established the concept of particular suitability is fact and site sensitive, requiring a finding that the general welfare would be served because a particular use is particularly fitted to the particular location. While the availability of an alternative location may be relevant to the “particular suitability” analysis, it does not prohibit the grant of the variance if another location is also suitable and available. As applied to the Himeji application, while there may be other locations in Union City that would be appropriate for the proposed high rise residential use, the Supreme Court upheld the Appellate Division’s finding that the subject property was well suited for the proposed development given its location, size, proximity to the high-rise zone, less sloped topography and access to two street frontages. These property attributes constitute a sufficient factual basis for the Zoning Board to find that the proposed high-rise use was particularly suitable for the subject property. Finally, the Supreme Court held it was appropriate for the Appellate Division to defer to the Zoning Board of Adjustment in the exercise of its fact finding and review of the testimony presented.

The Court rejected Price’s argument that particular suitability required the subject location be the only possible location for the use. The Court upheld a more general understanding of particular suitability, which would require the applicant to demonstrate the particular property as developed for the proposed use serves the general welfare, because the particular property location was peculiarly fitted for the use. While this may sound like tortured double talk, land use practitioners can now be guided by a rather clear understanding of how the particular suitability test is to be applied. The Supreme Court requires detailed factual findings must be established by the applicant and found to be true by the Board. These findings must distinguish the subject property from surrounding sites. In summarizing its opinion, the Court held that a particular suitability analysis requires:

Demonstrating that a property is particularly suitable for 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 particular location. Rather it is an inquiry as to whether the property is particularly suited for the proposed use, in the sense that it is especially well suited for the use, in spite of the fact that the use is not permitted in a zone. Most often, whether a proposal meets that 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 of use variance is based. (Opinion page 38).

The Supreme Court’s particular suitability test draws a distinction from standards established over the years relative to use variances.

In Himeji, the Supreme Court found that the high rise building was particularly appropriate, even though it violated numerous bulk standards in the low rise residential zone. The dual frontage, large size of the parcel, and its location mitigated any adverse impact of the structure on the property. The applicant demonstrated that the proposed use and structure could be accommodated by the parcel without adversely impacting the overall neighborhood development scheme.

Finally, the Supreme Court affirmed the Appellate Division exercise of original jurisdiction to resolve the issues relative to the bulk variances. The trial court had not reached the bulk variances, as its reversal of the use variance was dispositive. The Appellate Division and Supreme Court affirmed both the use variance approval as well as the grant of bulk variance relief. In doing so, the court recognized there were no facts in dispute and the issue was to be resolved based on settled law. Opinion, 23-24. This affirmation of judicial efficiency in resolving land use disputes is most welcome.

The Supreme Court’s decision in Himeji provides much needed guidance in a very confusing area of law. However, the underlying consequence of Himeji is to continue to require enhanced proofs relative to development of commercial uses in zones that do not permit those uses. The Court’s deference to the legislature’s preference for zoning over variance does not solve the underlying problem of land use in New Jersey: how to adjust zoning ordinances to address particular property locations, and avoid the issue of spot zoning. Without legislative reform, this underlying tension between use variance and zoning will continue and will remain an impediment to development of commercial ratables in this state.

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