The Continuing Evolution of the Standard of Proof for a Use Variance

Following in the footsteps of the New Jersey Supreme Court and its 1994 decision in Coventry Square v. Westwood Zoning Board of Adjustment, the Appellate Division recently made another distinction between the burden of proof required by applicants seeking use variances pursuant to section 70(d) of the Municipal Land Use Law.In 1987 the Supreme Court decided a case, Medici v. BPR Co., wherein it held that use variances, in addition to proof of special reasons, required an enhanced burden of proof that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance. While the use variance sought in Medici was for a non-permitted use pursuant to 70(d)(a), the Court’s decision had been applied to all section 70(d) variances until its decision in Coventry Square. In Coventry Square, the Supreme Court made an exception to the enhanced proof requirement, holding that use variances pursuant to section 70(d)(3), for a deviation from one or more conditions of a conditional use, did not have to meet the Medici enhanced standard of proof. The Court reasoned that in the case of a (d)(3) variance the use in question is essentially a permitted use, but does not comply with one or more conditions imposed by the ordinance, and therefore should not be held to the same standard as non-permitted uses.

Most recently, in Randolph Town Center Associates v. Township of Randolph, the Appellate Court utilized the same basic reasoning of the Supreme Court in Coventry Square to find that a use variance pursuant to section 70(d)(4), for a deviation from the maximum floor area ratio requirement, should not have to meet the Medici enhanced standard of proof. Instead, the Court held that the applicant should be subject to the lesser Coventry Square standard, noting that similar to the conditional use variance, an FAR variance also deals with an essentially permitted use in the zone, which use does not comply with the ordinance.

The Appellate Division ruling in Randolph Town Center Associates has not been tested by the Supreme Court. Assuming it remains a valid legal decision, it could open the door for other use variances to be held to the Coventry Square standard. If you follow the rationale behind Randolph Town Center Associates, sections 70(d)(5), an increase in permitted density, and 70(d)(6), an increase by 10 feet or 10% of the maximum height of a building, are both permitted uses which do not comply with the ordinance in some way and could, arguably, be held to the Coventry Square standard and not Medici.

Linda M. Herlihy is an associate at WJ&L, LLP who practices in the Land Use and Real Estate areas.

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