Understanding Inherently Beneficial Uses

June 17th, 2009 | Posted by: Christopher DeGrezia10| comments:

Flower - Inherently beneficial useWhere 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.

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10 Responses to “Understanding Inherently Beneficial Uses”

  • pat serafin says:

    I have a question regarding a problem I’m having with a construction project in my town .

    Can you help

  • Christopher DeGrezia says:

    I would be happy to provide you will some guidance.

  • JRSwift says:

    Can an inherently beneficial use be used in a CAFRA zone. Specifically, can solar farms be placed in CAFRA zones with this new legislation?

  • First, the Coastal Area Facility Review Act (CAFRA) is an environmental regulation that regulates development within costal areas. It is different than a zoning regulation that is adopted and enforced by the local municipality. Therefore, the concept of an “inherently beneficial use” is not going to be helpful when trying to secure a CAFRA permit, in the same way that it would not be helpful when trying to secure a Wetlands permit. However, with regards to solar and wind energy, there is some good news. The NJDEP website reports the following:
    On September 8, 2009, the DEP published in the NJ Register a proposal to amend the Coastal Permit Program rules, to add a new permit-by-rule and two new coastal general permits for the construction of wind turbines on land; add a new permit-by-rule for the construction of solar panels; and describe the situations in which construction of a wind turbine or solar panel does not require a coastal permit. The Department is also proposing amendments to the Coastal Zone Management rules, N.J.A.C. 7:7E, to facilitate the construction of wind turbines in the coastal zone in appropriate locations, identify particular areas where construction of large scale wind turbines would not be appropriate, and set forth monitoring, habitat evaluation and impact assessment requirements for birds, bats and marine organisms. The Department is also proposing amendments to allow the construction of a demonstration wind energy facility in the ocean waters of the State to assist in assessing the impacts of such a facility. In addition, the Department is proposing amendments to the Flood Hazard Area Control Act Rules, N.J.A.C. 7:13, to add a new permit-by-rule for the construction of wind turbines on land.
    The comment period on this proposal ends November 7, 2009.

  • Veronica Stevenson says:

    A use variance was granted this past February to a commercial landscaping business which had been in operation in a residential zone since 2002 WITHOUT A VARIANCE. The recent variance was granted by the Zoning Board for the following reasons: no complaints were made by the neighbors for the years it was in operation (most neighbors were unaware that a commercial business was located on the property); the equipment could not be seen from the road because of the shape of the flag lot; the view of the back of the property is hidden by evergreen green trees that had been planted along the property line along the driveway entrance.
    For the admitted operation of a business for 8 years without a variance, the landscaper was rewarded by the Zoning Board with the use variance requested. The board is now considering the landscapers’ request to build a 40 x 80 foot structure, with an additional request for a height variance (26 feet). The board is also considering the request to allow parking of 3 trailers outside the shed. It is of concern that he may have had a few pieces of equipment parked at the site in the past, helping to account for his low-key existance at the property, but that now a large expansion is planned. A safety issue: the driveway entrance is located between two hidden driveway signs. The township road is narrow, with very little shoulder. It is a popular biking and walking area. Does the granting of the variance comply with Municipal Land Use Law? Who enforces State Municipal Land Use Laws? What are the procedures and chances of having the decision overturned?

  • When a Zoning Board makes a decision on an application it memorializes that decision with a Resolution. Thereafter, notice of the Board’s action is published in the official newspaper of the municipality. The Board’s decision may be challenged within 45 days of the date of publication. If you miss this window you are out of luck.

    Appealing a Board’s decision is difficult. On appeal, you must establish that the Board was arbitrary, capricious and unreasonable. Essentially, that no reasonable person would have come to the conclusion that they did, after hearing the evidence presented.

    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). Unless the use is inherently beneficial (a use that promotes the general welfare by its very nature), the Board is required to find an “enhanced quality of proof” that the site is particularly suited for the proposed use. There are hundreds of cases that discuss the use variance standards and how they are applied.

    When the Board in your particular case discussed the “no complaints,” “equipment not seen from the road” and “the evergreen buffer” they were evaluating the first part of the negative criteria (considering the variance’s effect on the surrounding properties). The second part of the negative criteria is to evaluate the effect on the intent and purpose of the zoning plan and zoning ordinance. The Board would also have to consider the positive criteria and how the property is particularly suited for the proposed use.

    In order to determine whether or not a particular decision complies with the Municipal Land Use Law standards, you would have to review the record below (testimony & exhibits) to see if the proofs established satisfy the standards. There may also be opportunities to challenge decisions on procedural grounds. The intensification of the site with additional buildings, height variance, etc. will require another hearing before the Board and another opportunity to challenge the expansion.

    I have provided you will some general guidelines. If you are serious about challenging a decision or challenging the next application, it would be a good idea to hire a land use attorney or professional planner to assist you. Good luck,

  • Veronica says:

    Thank you for your comments and insight. A new development has occurred. The applicant stated clearly, under oath, that all of his equipment was/is stored at the site where he was seeking the variance… and that none of his equipment was stored elsewhere. This is not true. The site where he is actually parking his equipment has been located in another township. This is why there were no complaints. The equipment wasn’t there. The board had no reason to believe he was not being truthful and granted the use variance.

    Will be challenging the next application.

    “All that is necessary for evil to triumph is for good men to do nothing.” Edmund Burke

    Your site is fantastic!

  • R L Flurry says:

    I understand that PL 2009, c. 146 was intended, in part, to codify existing case law with respect to inherently beneficial use. Affordable housing is not in the definition. Does this mean that the legislature disagrees with Homes of Hope, Inc. v. Easthampton? Does the newly codified definition weaken or call into question the value of this case as a precedent?

  • No. I do not believe that the new definition is intended to excludes uses that the courts have found to be inherently beneficial. The definition indicates that the list of inherently beneficial uses given are examples and are not the entire list of inherently beneficial uses. Based on the language chosen, I would not read it as excluding a use that has traditionally been treated as inherently beneficial. The Legislative Statement explaining the bill does not provide any evidence that “affordable housing” or any other specific use was being purposely excluded from the category:

    This bill would add a definition of “inherently beneficial use” to the “Municipal Land Use Law,” P.L.1975, c.291 (C.40:55D-1 et seq.). Although section 57 of that law (C.40:55D-70) makes reference to this term, it is not defined in existing statutory law. If a use is held to be inherently beneficial, it presumptively satisfies the positive criteria for the grant of a use variance under subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70), which is required when the proposed use is inconsistent with the zoning plan. Specifically, the bill defines an “inherently beneficial use” as “a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such a use includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility.” Of those enumerated uses, the courts have specifically declared hospitals, schools, child care centers, and group homes to be inherently beneficial uses. This bill would codify those decisions and also include a wind, solar or photovoltaic energy facility as an inherently beneficial use. The bill defines “wind, solar, or photovoltaic energy facility” to mean, “a facility for the purpose of supplying electrical energy produced from wind, solar, or photovoltaic technologies.” This bill is intended to ensure that facilities that supply electrical energy produced from wind, solar or photovoltaic technologies will be considered an inherently beneficial use.

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