I’ve written a fair deal about what’s been happening in the Bergen County Eruv Litigation this past year.  I have advocated for municipalities such as Mahwah, USR & Motvale to create appropriate zoning rules that are generally applicable and enforced across the board.  In response, one of the common arguments I hear is that RLUIPA makes it impossible for a town to limit zoning and therefore they move to other measures to limit groups deemed undesirable in a particular area because they prefer different living conditions (e.g. higher density development).

Whether it’s a Church, Synagogue or Mosque — there’s an argument I often see invoked that tax exempt status harms communities when the rest of the town must make up or the loss of tax revenue for the new 501(c)(3) on the block.

Sadly, most people don’t understand how the NJ code handles such types of zoning applications or the pre-RLUIPA landscape that existed in New Jersey for “beneficial uses”.

Back in 1987, the NJ Supreme Court decided Medici v. BPR Co., which laid out the “the factors that should guide a municipal board of adjustment considering a use-variance application for a commercial use that does not “inherently serve[] the public good.””

But what about instances where an application for a use-variance that does inherently serve the public good?  And what is included in that category?

In Sica v. Board of Adjustment of Tp. of Wall (1992), the NJ Supreme Court handled that exact question.  Specifically, the court tackled the question of whether or not an inherently beneficial use needed to meet the “enhanced standard” it laid out in Medici.

The application in Sica was for a rehabilitation center, but the Court used the application to describe the types of uses that are inherently beneficial.  They said that “[i]n effect, by its nature, the proposed facility creates special reasons for its grant.”

What is an inherently beneficial use?

Courts have generally found the category of inherently beneficial uses to exclude many commercial uses.  However, while “inherently beneficial uses are generally non-commercial, various profit-making ventures have also been deemed to be inherently beneficial ^1.”  

Some types of inherently beneficial uses are²:

• Family day-care centers, as “home occupations” that may not be subject to more stringent restrictions than other such occupations in the residential zone in which the home is located. (N.J.S.A. 40:55D-66.4).
• Low- and moderate-income housing (DeSimone, supra, 56 N.J. at 442, 267 A.2d 31)
• Housing for the poor and homeless (Homes of Hope, supra, 236 N.J. Super. at 588, 566 A.2d 575)
• Senior citizen congregate housing (Jayber, supra, 238 N.J. Super. at 177, 569 A.2d 304)
• Health-care facility for the elderly (Baptist Home, supra, 201 N.J. Super. at 240, 492 A.2d 1100)
• Commercial radio transmission towers (Alpine Tower Co. v. Mayor of Alpine, 231 N.J. Super. 239, 555 A.2d 657 (App.Div. 1989))
• Dial telephone service centers (Yahnel, supra, 79 N.J. Super. at 518, 192 A.2d 177)

Because the nature is presumed to be a good fit for a locality, even the rules related to where it can go are somewhat relaxed:

“For inherently beneficial uses, we have never required either that the site be particularly suitable, Kohl, supra, 50 N.J. at 279, 234 A.2d 385, or that it may not be used for a permitted use, DeSimone, supra, 56 N.J. at 440, 267 A.2d 31; Kunzler, supra, 48 N.J. at 286, 225 A.2d 321.”

Can this beneficial use just override local zoning?

Not exactly. When it comes to zoning, and specifically requests for a Use Variance, the zoning boards deal with positive and negative criteria ^2.  The positive criteria relate to why a use variance should be granted for the particular application. These positive criteria need to be proven for most applications, but NOT for inherently beneficial uses, where the positives are assumed to exist.  However, the negative criteria must be taken into account in every “beneficial use” application.

As Justice Hall wrote, “[j]ust because an institution is thought to be a good thing for the community is no reason to exempt it completely from restrictions designed to alleviate any baneful physical impact it may nonetheless exert in the interest of another aspect of the public good equally worthy of protection.” Roman Catholic Diocese of Newark v. Borough of Ho-Ho-Kus, 47 N.J. 211, 221, 220 A.2d 97 (1966)

There’s a tension here.  You don’t want to deny something that would be of  a benefit to the community at large.  At the same time, there are issues that can come up which would be negative factors to consider for any application.

“Regional or, for that matter, local institutions generally recognized as serving the public welfare are too important to be prevented from locating on available, appropriate sites, subject to reasonable qualifications and safeguards, by the imposition of exclusionary or unnecessarily onerous municipal legislation enacted for the sake of preserving the established or proposed character of a community or some portion of it * * * or to further some other equally indefensible parochial interest. And, of course, if one municipality can so act, all can, with the result that needed and desirable institutions end up with no suitable place to locate.”

Some types of negative criteria (setbacks, traffic, safety) are going to be taken into account.  But changing the “character of a community” is not going to delay this type of use.  The board can also require reasonable conditions to be imposed to reduce detrimental effects.  When the negative impact of the use is significant and outweighs the positive good of the use, an application may be denied, but it is clearly not an easy hurdle to clear.

This decision came down in 1992, about eight years before RLUIPA.

Part 2 (coming soon) will deal with Houses of Worship and their particular zoning rules under the NJ code.
Part 3 (coming soon) will deal with how RLUIPA changed the way zoning has been challenged.

1. Examples of inherently beneficial commercial uses include private, for-profit senior citizen congregate-care facilities, Kunzler v. Hoffman, 48 N.J. 277, 288, 225 A.2d 321 (1966); Jayber, Inc. v. Township of W. Orange, 238 N.J. Super. 165, 174-75, 569 A.2d 304 (App.Div. 1990); a 120-bed nursing home, Urban Farms, Inc. v. Borough of Franklin Lakes, 179 N.J. Super. 203, 212, 431 A.2d 163(App.Div.), certif. denied, 87 N.J. 428, 434 A.2d 1099 (1981); a private day-care nursery, Three L Corp. v. Newark Board of Adjustment, 118 N.J. Super. 453, 457, 288 A.2d 312 (Law Div. 1972); and a tertiary sewage treatment plant to serve a commercial trailer park, Wickatunk Village, Inc. v. Township of Marlboro, 118 N.J. Super. 445, 452, 288 A.2d 308 (Ch.Div. 1972).  Sica v. Board of Adjustment of Tp. of Wall (1992)
2. This isn’t a complete list
3. We suggest the following procedure as a general guide to municipal boards when balancing the positive and negative criteria. First, the board should identify the public interest at stake. Some uses are more compelling than others. For example, community residences for the developmentally disabled, N.J.S.A. 40:55D-66.1; community shelters for victims of domestic violence, ibid; and child care centers, N.J.S.A. 40:55D-66.6, are so beneficial that the Legislature has permitted them in every residential zone in the state. The Legislature has deemed others, such as family day-care centers, as “home occupations” that may not be subject to more stringent restrictions than other such occupations in the residential zone in which the home is located. N.J.S.A. 40:55D-66.4. Thus, the Legislature has removed some uses from the power of local land use boards to preclude them from residential zones. Courts have recognized other uses as sufficiently beneficial to satisfy the positive criteria: low- and moderate-income housing, DeSimone, supra, 56 N.J. at 442, 267 A.2d 31; housing for the poor and homeless, Homes of Hope, supra, 236 N.J. Super. at 588, 566 A.2d 575; senior citizen congregate housing, Jayber, supra, 238 N.J. Super. at 177, 569 A.2d 304; a health-care facility for the elderly, Baptist Home, supra, 201 N.J. Super. at 240, 492 A.2d 1100; a commercial radio transmission tower, Alpine Tower Co. v. Mayor of Alpine, 231 N.J. Super. 239, 555 A.2d 657 (App.Div. 1989); and a dial telephone service center, Yahnel, supra, 79 N.J. Super. at 518, 192 A.2d 177. Although *166 that list may be incomplete, it suffices to identify the kind of use that may outweigh the negative criteria.Second, the Board should identify the detrimental effect that will ensue from the grant of the variance. Certain effects, such as an increase in traffic, Baptist Home, supra, 201 N.J. Super. at 246, 492 A.2d 1100, or “some tendency to impair residential character, utility or value,” Yahnel, supra, 79 N.J. Super. at 519, 192 A.2d 177, will usually attend any non-residential use in a residential zone. When minimal, such an effect need not outweigh an inherently beneficial use that satisfies the positive criteria.Third, in some situations, the local board may reduce the detrimental effect by imposing reasonable conditions on the use. Ho-Ho-Kus II, supra, 47 N.J. at 224, 220 A.2d 97 (Hall, J., concurring); Baptist Home, supra, 201 N.J. Super. at 246-47, 492 A.2d 1100. If so, the weight accorded the adverse effect should be reduced by the anticipated effect of those restrictions. Baptist Home, supra, 201 N.J. Super. at 246-47, 492 A.2d 1100.Fourth, the Board should then weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good. This balancing, “[w]hile properly making it more difficult for municipalities to exclude inherently beneficial uses * * * permits such exclusion when the negative impact of the use is significant. It also preserves the right of the municipality to impose appropriate conditions upon such uses.” Id. at 247, 492 A.2d 1100.  Sica v. Board of Adjustment of Tp. of Wall (1992)