SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
Monarch Communities, LLC v. Township of Montville (A-70-24) (090407)
Argued November 18, 2025 -- Decided July 13, 2026
JUSTICE PATTERSON, writing for a unanimous Court.
In the context of this dispute about a use variance application, the Court considers whether the Legislature’s 1997 Amendment to N.J.S.A. 40:55D-70, a provision of the Municipal Land Use Law (MLUL), requires a change to the fourstep procedure the Court adopted “as a general guide to municipal boards when balancing the positive and negative criteria” in variance applications for “inherently beneficial uses” under the MLUL in Sica v. Board of Adjustment of Wall, 127 N.J. 152, 165-66 (1992).
The Township of Montville Zoning Board of Adjustment (Board) denied the application of a developer, Monarch Communities, LLC (Monarch), for a use variance to construct a senior living facility. It is undisputed that the senior housing use for which Monarch sought the use variance is an inherently beneficial use as the MLUL defines that term in N.J.S.A. 40:55D-4.
Monarch and another developer, JMC Investments, LLC (JMC), challenged the Zoning Board’s decision. The trial court reversed, remanding for the Board to consider conditions for the approval of the application. The Appellate Division affirmed. The Court granted certification. 260 N.J. 614 (2025).
HELD: Because the standard the Court prescribed in Sica for use variances regarding inherently beneficial uses does not entirely align with N.J.S.A. 40:55D70’s language following the 1997 Amendment, the Court revises the fourth step of that standard to incorporate the statutory language regarding the second negative criterion. So that the revised standard may be applied to the variance application in this case, the Court reverses the Appellate Division’s judgment and remands this matter to the appellate court for application of that standard to the record.
1. When it enacted the MLUL, the Legislature sought to encourage municipalities to make zoning decisions by ordinance rather than by variance. Variances remain necessary, however, because the law cannot anticipate all of the circumstances that might arise in the land use context. N.J.S.A. 40:55D-70(d) addresses use variances,
1
which permit a use of land that is otherwise prohibited by the zoning ordinance. The MLUL recognizes a special category of variances for a proposed development that would serve an “inherently beneficial use.” N.J.S.A. 40:55D-4. N.J.S.A. 40:55D70(d) authorizes a board of adjustment, “in particular cases for special reasons,” to grant certain variances. The “special reasons” requirement of the statute is referred to as the “positive criteria” for a use variance. The concluding section of N.J.S.A. 40:55D-70 sets forth two “negative criteria,” which require an applicant for a use variance to show that the variance (1) “can be granted without substantial detriment to the public good” and (2) “will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.” (pp. 14-17)
2. Case law has addressed the procedural requirements governing variance applications under N.J.S.A. 40:55D-70. In Medici v. BPR Co., Inc., the Court required enhanced proofs and findings about the second negative criterion “if the use for which a variance is sought is not one that inherently serves the public good.” 107 N.J. 1, 4 (1987). In Sica, the Court prescribed a procedure for variance applications for inherently beneficial uses. 127 N.J. at 159-68. The Court held that Medici “does not apply to inherently beneficial uses” and thus considered “to what extent a use variance involving an inherently beneficial use must satisfy the negative criteria.” Id. at 160-62. The Court suggested a four-part procedure. Id. at 165-66. First, the Court stated that a board “should identify the public interest at stake,” noting that “[s]ome uses are more compelling than others” and providing examples of uses “sufficiently beneficial to satisfy the positive criteria.” Id. at 165. Second, a board “should identify the detrimental effect that will ensue from the grant of the variance.” Id. at 166. Third, “in some situations, the local board may reduce the detrimental effect by imposing reasonable conditions on the use,” and “the weight accorded the adverse effect should be reduced” accordingly. Ibid. Fourth, a 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.” Ibid. The Sica test thus includes statutory language regarding the application of N.J.S.A. 40:55D-70’s first negative criterion, but not its second negative criterion. (pp. 18-23)
3. Five years after Sica, in 1997, the Legislature amended N.J.S.A. 40:55D-70 by adding the underscored language to read that “[n]o variance . . . may be granted under the terms of this section, including a variance . . . involving an inherently beneficial use, without a showing that [it] 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.” The Court reviews the legislative history of the 1997 Amendment, as well as subsequent court decisions. (pp. 23-26)
4. The Court concludes that the standard prescribed by Sica should be revised to incorporate N.J.S.A. 40:55D-70’s statutory language regarding the second negative
2
criterion. The Court amends the fourth step of the Sica standard to require that, prior to undertaking the balancing that step requires, the zoning board “should determine whether the applicant has made a showing that the variance . . . sought will not substantially impair the intent and the purpose of the zoning plan and zoning ordinance,” and should deny the variance “[i]f the applicant has not made such a showing.” The Court also provides detailed guidance about the application of the new standard, explaining (1) that the showing under the second criterion is not equivalent to the Medici enhanced quality of proof requirement; (2) that the applicant cannot rely solely on the designation of the proposed use as an inherently beneficial use, but must instead present a showing analyzing the impact of the variance sought on the zoning plan and zoning ordinance; (3) that the board’s denial of a prior application for a variance for the same property is not itself dispositive, but may be an important consideration; and (4) that governing bodies and planning boards should document in detail their findings regarding zoning for inherently beneficial uses in the master plan and development regulations, and that they should revise those findings at least once a decade to account for changing conditions, see N.J.S.A. 40:55D-89, -89.1. (pp. 26-29)
5. In remanding the matter, the Court asks the Appellate Division to apply the Sica standard as amended in its opinion to the record in this case and provides further guidance. The Court expresses no view with regard to the outcome of the Appellate Division’s application on remand of the revised Sica standard. (pp. 29-30)
REVERSED and REMANDED to the Appellate Division.
CHIEF JUSTICE RABNER and JUSTICES PIERRE-LOUIS, WAINER
APTER, FASCIALE, NORIEGA, and HOFFMAN join in JUSTICE
PATTERSON’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-70 September Term 2024
090407
Monarch Communities,
LLC, a Limited Liability Company
of the State of Delaware,
Plaintiff,
v.
Township of Montville,
Mayor and Council of
the Township of
Montville,
Defendants,
and
Township of Montville
Zoning Board of
Adjustment,
Defendant-Appellant.
JMC Investments, LLC,
a New Jersey Limited Liability
Company,
Plaintiff-Respondent,
v.
Township of Montville,
Mayor and Council of the
1
Township of Montville,
Defendants,
and
Township of Montville
Zoning Board of
Adjustment,
Defendant-Appellant.
On certification to the Superior Court,
Appellate Division.
Argued Decided
November 18, 2025 July 13, 2026
Kelly M. Carey argued the cause for appellant (Pashman
Stein Walder Hayden, attorneys; Kelly M. Carey and
Bruce J. Ackerman, on the briefs).
Antimo A. Del Vecchio argued the cause for respondent
(Beattie Padovano, attorneys; Antimo A. Del Vecchio, of
counsel, and Daniel L. Steinhagen, on the brief).
JUSTICE PATTERSON delivered the opinion of the Court.
In this appeal, we construe N.J.S.A. 40:55D-70, a provision of the
Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -171.
The Legislature mandated in N.J.S.A. 40:55D-70 that an applicant for a
use variance satisfy both “positive criteria” and “negative criteria” in order for
its application to be granted. The provision prescribing the “negative criteria”
2
requires an applicant for a use variance to show that the variance (1) “can be
granted without substantial detriment to the public good” and (2) “will not
substantially impair the intent and the purpose of the zone plan and zoning
ordinance.” N.J.S.A. 40:55D-70.
In Sica v. Board of Adjustment of Wall, this Court prescribed a four-step
procedure “as a general guide to municipal boards when balancing the positive
and negative criteria” in variance applications for “inherently beneficial uses”
under the MLUL. 127 N.J. 152, 165-66 (1992). The Sica test includes
statutory language regarding the application of N.J.S.A. 40:55D-70’s first
negative criterion -- but not its second negative criterion -- in that setting.
The Legislature subsequently enacted an amendment to N.J.S.A.
40:55D-70. L. 1997, c. 145, § 1. That 1997 Amendment made clear that all
applicants for use variances under N.J.S.A. 40:55D-70 -- including applicants
seeking variances for inherently beneficial uses -- are required to make
showings with respect to both negative criteria. Ibid.
This appeal requires that we construe N.J.S.A. 40:55D-70, as amended
by the 1997 Amendment. Pursuant to that provision, the Township of
Montville Zoning Board of Adjustment (Zoning Board or Board) denied the
application of a developer, Monarch Communities, LLC (Monarch), for a use
3
variance to construct a senior living facility. The proposed facility would
serve an “inherently beneficial use” under the MLUL.
Monarch and another developer, JMC Investments, LLC (JMC),
challenged the Zoning Board’s decision in actions in lieu of prerogative writs.
The trial court reversed, remanding for the Zoning Board to consider
conditions for the approval of the application, and the Appellate Division
affirmed the trial court’s determination. We granted the Zoning Board’s
petition for certification.
Because the standard the Court prescribed in Sica for use variances
regarding inherently beneficial uses does not entirely align with N.J.S.A.
40:55D-70’s language following the 1997 Amendment, we revise the fourth
step of that standard to incorporate the statutory language regarding the second
negative criterion. So that the revised standard may be applied to the variance
application in this case, we reverse the Appellate Division’s judgment and
remand this matter to the appellate court for application of that standard to the
record.
I.
A.
The land use dispute before us concerns an eight-acre property in
Montville Township, designated as 205-207 Changebridge Road. The property
4
consists of a farm and a small single-family home, zoned for residential use
under the Township’s R-20A zone. It is located on a main road and is adjacent
to or near single-family homes, a townhouse development, a childcare facility,
a gas station, a bus depot, and the Township’s municipal complex.
In 2018, Allegro Development, LLC (Allegro) filed an application to
rezone the property to permit the construction of 150 senior independent
living, assisted living, and memory care units. The Township’s planner
recommended that the Township Committee refer the application to the
Planning Board, but the Township Committee declined to do so.
The following year, the Planning Board considered an amendment to the
land use element of the Township’s Master Plan. That amendment created a
“Senior Housing Overlay” designation to afford developers “the option of
redeveloping” designated sites “for various types of senior housing (including
active adult and age-restricted independent living developments in townhouse
or multifamily-type structures, as well as assisted living, memory care, and
continuing care retirement communities)” while “retaining the developers’
option to develop in accordance with the underlying zone district for the
properties.”
As the minutes and transcript of a December 12, 2019 Planning Board
meeting make clear, the Planning Board considered including the property at
5
issue in this appeal as part of the Senior Housing Overlay Zone. According to
the minutes, during the public portion of the meeting, several local residents
opposed the inclusion of the property in that zone, citing concerns about open
space, land preservation, and wetlands disturbance. Residents asserted that the
inclusion of the property conflicted with the Township’s Land Use Plan
Amendment’s goals of preserving remaining farmland, supporting
environmental sustainability, and encouraging senior housing and assisted
living. One resident presented a petition signed by more than six hundred
residents requesting that the property “be either preserved as farmland and/or
acquired as open space.” On the record, Planning Board members discussed
the possibility of purchasing the property for open space.
In its Land Use Plan Amendment, the Planning Board did not include the
disputed property in the Senior Housing Overlay Zone. The Planning Board
instead identified two other properties to be included in the Senior Housing
Overlay Zone and designated a third property as “Medium Density Residential
- Residential Health Care Facility Option,” which would permit the
construction of a residential health care facility with sixty-five or fewer
bedrooms.
The Planning Board identified, as a goal of its Land Use Plan
Amendment, “encouraging a variety of senior housing opportunities in order to
6
allow aging residents to remain in the community.” In its policy statement in
support of that goal, the Planning Board recommended that the Township
“consider identifying appropriate locations for active adult and age-restricted
independent living and memory care facilities” and “consider preparing a Land
Use Plan amendment which designates specific locations for future
development of senior housing.”
According to a July 9, 2022 letter from the Township’s counsel to the
trial court, the Planning Board adopted the Master Plan update and land use
element “in or about early 2020,” but, as of the date of the letter, the Township
Committee had “not as yet voted upon that implementing ordinance.”
B.
On February 20, 2020, Monarch submitted a land development
application to the Zoning Board, proposing a 165-unit, three-story senior
housing community with eighty-one congregate apartment units, fifty-eight
assisted living units, twenty-six memory care units, and a fifteen percent setaside for affordable housing. It sought a use variance pursuant to N.J.S.A.
40:55D-70(d)(1) that would authorize the proposed development
notwithstanding its incompatibility with the zoning of the property. It is
undisputed that the senior housing use for which Monarch sought the use
7
variance is an inherently beneficial use as the MLUL defines that term in
N.J.S.A. 40:55D-4.
Monarch also sought bulk variances under N.J.S.A. 40:55D-70(c),
requesting waivers of restrictions on maximum building height and number of
stories; maximum building coverage; maximum impervious coverage; parking
area and internal roadway setbacks; maximum fence height; and the use of a
monument sign; as well as design waivers for not providing a bicycle lane and
for steep slope disturbance.
The Zoning Board held a hearing on Monarch’s application over seven
days. Monarch’s planner testified about the application of the Sica test to the
proposed senior housing facility. The planner acknowledged that the Planning
Board had identified sites other than the property at issue as appropriate
locations for senior housing but testified that those sites were not suitable for
that use and that the developments contemplated at those sites were different
from the senior living facility that Monarch proposed to construct.
As the hearing concluded, Monarch submitted a revised site plan that
eliminated the need for most of the bulk variances it had requested and offered
to consider any conditions that the Zoning Board would request to address the
Board’s concerns about the application.
8
The Zoning Board denied Monarch’s application. In a written decision
and resolution, the Zoning Board acknowledged the “public interest in
providing adequate senior housing living units in appropriate locations,
particularly as to assisted living and memory care units as included in this
application,” and agreed that “the use applied for is inherently beneficial.”
The Zoning Board concluded, however, that “the public benefits to be
derived from having this combined senior citizen facility at this site are
substantially outweighed by the detrimental effects upon the integrity of the
zoning plan aimed at having exclusively single family residences on this site
and specifically omitting this use.” It found that the proposed variance would
result in a “substantial detriment to the zone plan and zoning ordinance by the
various elements of the application.” The Zoning Board cited (1) “the uses for
this property,” given the Township’s prior rejection of those uses on the site;
(2) “the excess density at 165 units”; (3) the “excess impervious coverage and
its effect visually and upon drainage”; (4) the question whether applicant’s
drainage plan could be achieved without alteration of a third-party easement;
and (5) concerns about traffic and parking. The Board ruled that no conditions
would “lessen or eliminate those detriments” in the application as presented.
9
C.
1.
Monarch and JMC challenged the Zoning Board’s decision in separate
actions in lieu of prerogative writs. The trial court consolidated the actions.
Following a bench trial, the trial court reversed the Zoning Board’s
decision. The court held that the proposed use in this matter is an inherently
beneficial use, and that it presumptively satisfies N.J.S.A. 40:55D-70’s
positive criteria. Citing Sica, 127 N.J. at 165-66, the trial court held that the
record did not support the conclusion that “the project is too big, too noisy and
will create too much traffic,” and that the evidence did not explain why the
size of the proposed facility “is a detriment, visual or otherwise.”
The trial court dismissed as irrelevant evidence that the Township
excluded the disputed property from the Senior Overlay Zone in its 2019
Master Plan update. The court viewed Sica to require that “negative impacts
be substantial” in order to defeat a variance application for an inherently
beneficial use, and it found no such substantial negative impact in its review of
the application.
The trial court remanded the matter to the Zoning Board “for conditions
it may wish to impose including but not limited to drainage,” but it barred the
10
Board from reducing the number of units in the proposal. The court retained
jurisdiction.
Monarch then terminated its contract to purchase the property, leaving
JMC as the contract purchaser and the sole party pursuing the variance.
On remand, the Zoning Board held an additional hearing. It imposed
thirty-seven conditions on the proposed development and reserved its appellate
rights. The Zoning Board appealed the trial court’s judgment.
2.
The Appellate Division affirmed. It acknowledged the deferential
standard governing appeals from local zoning boards but rejected the Zoning
Board’s argument that the application in this case “was substantially
inconsistent with the intent and purpose of the zoning plan and township
ordinances.” The court stated that the Township’s master plan had “not yet
been adopted,” that the Township’s plan did not include “a specific vision” for
the property, and that a master plan “controls only once it has gone into
effect.” The Appellate Division ruled that the zoning of other properties for
senior care did not preclude rezoning the property in dispute.
The Appellate Division held that the Zoning Board acted unreasonably
when it concluded that the detrimental effects of the proposed development’s
“allegedly poor aesthetics, including height and density; noise and traffic
11
levels; and parking” warranted denial of the variance application, and it found
ample support in the record for the trial court’s findings rejecting those claims.
3.
We granted the Zoning Board’s petition for certification, in which it
contended that the Appellate Division did not properly apply N.J.S.A. 40:55D70’s second negative criterion to this case. 260 N.J. 614 (2025).
II.
The Zoning Board asserts that when the Legislature adopted the second
negative criterion, it intended to protect municipal authority to zone in
accordance with land use planning principles stated in a master plan. It argues
that under the Sica test, the Board properly afforded substantial weight to its
rejection of Allegro’s 2018 application to rezone the disputed property and the
Township’s 2019 amendment of its Master Plan excluding that property from
the Senior Housing Overlay. It asserts that the Appellate Division improperly
declined to consider the Township’s zoning plan when it reviewed the trial
court’s determination.
JMC argues that if the Court were to adopt the Zoning Board’s position,
it would nullify the holding in Sica that variance applications for inherently
beneficial uses are not subject to the enhanced standard of proof imposed on
non-inherently beneficial variance applications under Medici v. BPR Co., Inc.,
12
107 N.J. 1, 21 (1987). JMC asserts that in Salt & Light Co. v. Willingboro
Township Zoning Board of Adjustment, 423 N.J. Super. 282, 287 (App. Div.
2011), the Appellate Division properly determined that “the satisfaction of the
negative criteria involves weighing the evidence relating to the positive and
negative criteria under the procedures set forth in Sica.” It contends that under
the Sica balancing test, the advantages of its proposed development outweigh
any potential detrimental effects.
III.
A.
“[Z]oning boards, ‘because of their peculiar knowledge of local
conditions[,] must be allowed wide latitude in the exercise of delegated
discretion.’” Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (second
alteration in original) (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 296
(1965)). A zoning board’s land use decisions are thus entitled to a
presumption of validity. Ibid. A court should not overturn a board’s action
“unless it is found to be arbitrary and capricious or unreasonable, with the
burden of proof placed on the plaintiff challenging the action.” Dunbar
Homes, Inc. v. Zoning Bd. of Adjustment of Franklin, 233 N.J. 546, 559
(2018) (quoting Grabowsky v. Township of Montclair, 221 N.J. 536, 551
(2015)).
13
An appellate court reviews de novo the statutory interpretation decisions
of a trial court or the Appellate Division. Cowan v. State Parole Bd., 263 N.J.
91, 105 (2026).
We construe N.J.S.A. 40:55D-70 in accordance with familiar principles.
“Our primary goal . . . ‘is to discern and effectuate the intent of the
Legislature.’” Shipyard Assocs., LP v. City of Hoboken, 242 N.J. 23, 38-39
(2020) (citing Murray v. Plainfield Rescue Squad, 210 N.J. 581, 592 (2012)).
We “consider[] ‘the statute’s plain language, ascribing to the words used “their
ordinary meaning and significance.”’” Id. at 38 (quoting Murray, 210 N.J. at
592). If the statute is ambiguous, we may consider extrinsic interpretive aids
such as legislative history in order to discern the Legislature’s intent.
DiProspero v. Penn, 183 N.J. 477, 492-93 (2005).
B.
1.
“The authority of a public entity to plan and zone and, in so doing, to
impose conditions on a party’s use of its property, is a delegation of the police
power.” Nuckel v. Borough of Little Ferry Plan. Bd., 208 N.J. 95, 101 (2011);
accord Riggs v. Township of Long Beach, 109 N.J. 601, 610 (1988). “Because
the planning and zoning power stems from legislative allowance, it must be
14
exercised in strict conformity with the delegating enactment -- the MLUL.”
Nuckel, 208 N.J. at 101.
When it enacted the MLUL, the Legislature sought to “encourag[e]
municipalities to make zoning decisions by ordinance rather than by variance.”
Medici, 107 N.J. at 5; see also Sica, 127 N.J. at 161-62 (reiterating the holding
in Medici that under the MLUL’s 1985 amendments, “rezoning of a
municipality should be accomplished not by a board of adjustment through the
liberal grant of use variances for commercial purposes, but by the governing
body through amendment to the zoning ordinance”).
That legislative preference is reflected in several MLUL provisions,
including N.J.S.A. 40:55D-70, which imposes reporting and amendment
recommendation requirements on boards of adjustment; N.J.S.A. 40:55D-89,
which mandates that, at least every ten years, the governing body “provide for
a general reexamination of its master plan and development regulations by the
planning board, which shall prepare and adopt by resolution a report on the
findings of such reexamination”; and N.J.S.A. 40:55D-89.1, which provides
that if the planning board has failed to adopt a reexamination report in
accordance with N.J.S.A. 40:55D-89, there is “a rebuttable presumption that
the municipal development regulations are no longer reasonable.” Those
provisions ensure “that a municipality’s master plan and zoning ordinance
15
reflect contemporary needs and conditions, and that the governing body is kept
informed of provisions of the zoning ordinance that generate variance
requests.” Medici, 107 N.J. at 20.
Notwithstanding the legislative preference for zoning by ordinance,
variances “are necessary because the law cannot anticipate all of the
circumstances that might arise in the land use context.” Cox & Koenig, N.J.
Zoning & Land Use Admin. § 28-1 (2025).
N.J.S.A. 40:55D-70(c) addresses bulk variances, and N.J.S.A. 40:55D70(d) addresses the category of variances at issue here, use variances. “A use
variance, as the term implies, permits a use of land that is otherwise prohibited
by the zoning ordinance.” Nuckel, 208 N.J. at 101.
The MLUL recognizes a special category of variances for a proposed
development that would serve an “inherently beneficial use,” defined as “a use
which is universally considered of value to the community because it
fundamentally serves the public good and promotes the general welfare.”
N.J.S.A. 40:55D-4. The statute provides that “[s]uch a use includes, but is not
limited to, a hospital, school, child care center, group home, or a wind, solar or
photovoltaic energy facility or structure.” Ibid.
N.J.S.A. 40:55D-70(d) authorizes a board of adjustment, “in particular
cases for special reasons,” to
16
grant a variance to allow departure from regulations
pursuant to [N.J.S.A. 40:55D-62] to permit: (1) a use
or principal structure in a district restricted against such
use or principal structure, (2) an expansion of a
nonconforming use, (3) deviation from a specification
or standard pursuant to [N.J.S.A. 40:55D-67]
pertaining solely to a conditional use, (4) an increase in
the permitted floor area ratio as defined in [N.J.S.A.
40:55D-4], (5) an increase in the permitted density as
defined in [N.J.S.A. 40:55D-4], except as applied to the
required lot area for a lot or lots for detached one or two
dwelling unit buildings, which lot or lots are either an
isolated undersized lot or lots resulting from a minor
subdivision or (6) a height of a principal structure
which exceeds by 10 feet or 10% the maximum height
permitted in the district for a principal structure.
“The ‘special reasons’ requirement of the statute is also referred to as the
‘positive criteria’ for a use variance.” Cox & Koenig, § 32-1.
The concluding section of N.J.S.A. 40:55D-70 provides in part that
[n]o 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.
The two showings required by that provision -- called the “negative
criteria” -- apply to applications both for variances sought pursuant to N.J.S.A.
40:55D-70(c) and for variances sought pursuant to N.J.S.A. 40:55D-70(d).
See N.J.S.A. 40:55D-70.
17
2.
Case law has addressed the procedural requirements governing variance
applications under N.J.S.A. 40:55D-70.
Five years before Sica, this Court held in Medici that “if the use for
which a variance is sought is not one that inherently serves the public good,
the applicant must prove and the board must specifically find that the use
promotes the general welfare because the proposed site is particularly suitable
for the proposed use.” 107 N.J. at 4. For such settings -- in which the use is
not inherently beneficial -- the Court deemed it appropriate “to require an
enhanced quality of proof, as well as clear and specific findings by the board
of adjustment, that the grant of a use variance is not inconsistent with the
intent and purpose of the master plan and zoning ordinance.” Ibid. The Court
held that when no inherently beneficial use is at issue, the enhanced “proofs
and findings must satisfactorily reconcile the grant of a use variance with the
ordinance’s continued omission of the proposed use from those permitted in
the zone,” and thus “provide a more substantive basis for the typically
conclusory determination that the variance ‘will not substantially impair the
intent and purpose of the zone plan and zoning ordinance.’” Ibid. (quoting
N.J.S.A. 40:55D-70(d)).
18
In Sica, the Court prescribed a procedure for variance applications in a
setting that it had not considered in Medici: applications under N.J.S.A.
40:55D-70 for inherently beneficial uses. 127 N.J. at 159-68. That appeal
arose from a physician’s application for a variance to construct a “head-trauma
residential-rehabilitation center” in Wall Township. Id. at 156 (internal
quotation marks omitted). The zoning board rejected the application, finding
that the application “did not satisfy Medici’s enhanced standard of proof that
the variance could not ‘be granted without substantial detriment to the public
good,’ and that the variance would not ‘substantially impair the intent and the
purpose of the zone plan and zoning ordinance.’” Id. at 157 (quoting N.J.S.A.
40:55D-70).
The trial court reversed, assuming that the Medici enhanced proof
requirement applied to the inherently beneficial use proposed but finding that
the applicant had satisfied that standard. Id. at 158. The Appellate Division
reversed the trial court’s judgment, holding that the applicant in Sica fell short
of Medici’s enhanced standard of proof. Ibid.
On certification, the Sica Court first considered whether the enhanced
standard of proof imposed in Medici should apply to variance applications for
inherently beneficial uses such as the head-trauma center. Id. at 160. The
Court held that “Medici does not impose any such requirement” and that “the
19
[Medici] opinion does not apply to inherently beneficial uses.” Id. at 160-61.
The Court then turned to a second issue: “to what extent a use variance
involving an inherently beneficial use must satisfy the negative criteria.” Id. at
162. At the time -- prior to the 1997 Amendment -- the portion of N.J.S.A.
40:55D-70 that identified the negative criteria generally stated that “[n]o
variance or other relief may be granted under the terms of this section unless
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.” L. 1991, c. 256, § 21 (eff. Aug. 13,
1991).
In Sica, the Court reasoned that “[a] too-strict reading of the negative
criteria can result in the denial of many deserving inherently beneficial uses,”
and that unless the negative criteria were balanced against the benefits of the
variance, “a local board’s finding that an applicant has not satisfied the
negative criteria would always defeat an inherently beneficial use, no matter
how compelling the need for that use.” 126 N.J. at 163-64. Acknowledging
that the Legislature had not expressly required a balancing of the positive and
negative criteria in N.J.S.A. 40:55D-70, the Court viewed the first negative
criterion -- the statute’s “requirement that the grant of a variance must be
20
‘without substantial detriment to the public good’” -- to implicitly endorse a
balancing test. Ibid. (quoting N.J.S.A. 40:55D-70(d)).
The Court suggested, “as a general guide to municipal boards when
balancing the positive and negative criteria,” a four-part procedure. Id. at 165-66.
First, the Court held that a board “should identify the public interest at
stake,” noting that “[s]ome uses are more compelling than others” and
providing examples of uses “sufficiently beneficial to satisfy the positive
criteria.” Id. at 165.
Second, the Court stated in Sica that a board “should identify the
detrimental effect that will ensue from the grant of the variance.” Id. at 166.
It reasoned that “[c]ertain effects, such as an increase in traffic or ‘some
tendency to impair residential character, utility or value,’ will usually attend
any non-residential use in a residential zone.” Ibid. (citing Baptist Home of S.
Jersey v. Borough of Riverton, 201 N.J. Super. 226, 247 (Law Div. 1984), and
quoting Yahnel v. Bd. of Adjustment of Jamesburg, 79 N.J. Super. 509, 519
(App. Div. 1963)).
Third, the Court noted in Sica that “in some situations, the local board
may reduce the detrimental effect by imposing reasonable conditions on the
use.” Ibid. (citing Roman Cath. Diocese of Newark v. Borough of Ho-Ho-Kus,
21
47 N.J. 211, 224 (1966) (Hall, J., concurring); Baptist Home, 201 N.J. Super.
at 247). The Court added that, “[i]f so, the weight accorded the adverse effect
should be reduced by the anticipated effect of those restrictions.” Ibid. (citing
Baptist Home, 201 N.J. Super. at 246-47).
Fourth, the Court ruled that a 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.” Ibid. It observed that
“[t]his balancing, ‘[w]hile properly making it more difficult for municipalities
to exclude inherently beneficial uses,’” would “‘permit[] such exclusion when
the negative impact of the use is significant,’” and would “‘also preserve[] the
right of the municipality to impose appropriate conditions upon such uses.’”
Ibid. (second alteration in original) (quoting Baptist Home, 201 N.J. Super. at
247).
Apart from its general reference to the “positive and negative criteria,”
the Sica Court did not address the second negative criterion in its test. See id.
at 165-66.
Applying its new standard to the case before it, the Court stated in Sica
that although it would ordinarily remand the matter to the local zoning board
for reconsideration in light of the decision, it was satisfied that the board’s
power to “impose reasonable conditions suffices to control any adverse impact
22
of the” proposed trauma center. Id. at 167. It reversed the judgment of the
Appellate Division and reinstated the determination of the Law Division
ordering the grant of the variance. Ibid.
3.
Five years after this Court decided Sica, the Legislature enacted the 1997
Amendment. In the aspect of the Amendment directly relevant to this appeal,
the Legislature added the language underscored below to N.J.S.A. 40:55D-70:
[n]o 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.
[L. 1997, c. 145, § 1.] 1
In a floor statement to a version of the bill, its Senate sponsor stated that
“[t]he bill would further clarify that there must be an independent showing that
a variance involving an inherently beneficial use can be granted without
substantial detriment to the public good and will not substantially impair the
intent and purpose of the zoning ordinance.” Statement by Senator Schluter to
1
We limit our analysis of the 1997 Amendment to the provision that addressed the second negative criterion in N.J.S.A. 40:55D-70(d) as applied to variance applications for inherently beneficial uses. We do not address other aspects of that Amendment.
23
S. 824 3 (Feb. 22, 1996); see also S. Cmty. Aff. Comm. Statement to S. 824
(June 3, 1996); A. Local Gov’t Comm. Statement to S. 824 (Feb. 3, 1997).
After the Senate and General Assembly passed the bill, Governor
Whitman conditionally vetoed it, recommending a change to the language of
the proposed amendment to N.J.S.A. 40:55D-70(c) regarding bulk variances.
The Governor then addressed the purpose of the amendment. She stated that
“over the past several years, courts have determined that certain uses are
inherently beneficial,” and that,
[i]n the courts’ view, the determination that a use is
inherently beneficial requires that the variance be
issued, regardless of the local body’s analysis using the
MLUL. In effect, the courts have presented this new
rule of law as an overriding factor which municipalities
must consider when reviewing variance applications.
This bill changes case law by restricting the standard’s
role in the variance application process.
. . . The amendment to the use variance law
clarifies that it is not enough for a use variance
applicant to prove that the proposed use constitutes an
inherently beneficial use; under this bill, an applicant
must still prove that the use will not substantially
impair the zoning plan. By restoring this balance,
municipalities will again be able to evaluate a proposed
use on a particular site to ensure that it does not have a
negative impact on the overall zoning plan of the
community.
[Governor’s Veto Statement to S. 824 1-2 (May 22,
1997).]
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Although it did not identify the Sica standard by name, the Legislature
appears to have amended N.J.S.A. 40:55D-70 in response to that standard. See
Cox & Koenig, § 36-2.8 (noting that the 1997 Amendment “must be seen as
reinforcing the concept that the negative criteria apply equally in all cases,
despite the impression that had developed that ‘inherently beneficial’ uses
were somehow to be treated differently,” and “[t]his impression had developed
with regard to two issues discussed in [Sica]”).
As we observed in the wake of the 1997 Amendment,
even when a proposed use inherently benefits the
general welfare, the applicant still must prove that the
variance “can be granted without substantial detriment
to the public good and will not substantially impair the
intent and purpose of the zone plan and zoning
ordinance.” In effect, the 1997 amendment serves as a
reminder that even with an inherently beneficial use, an
applicant must satisfy the negative criteria.
[Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd.
of Adjustment, 152 N.J. 309, 324 (1998) (quoting L.
1997, c. 145 (codified at N.J.S.A. 40:55D-70)).]
In Salt & Light, the Appellate Division incorporated into its application
of the fourth step of the Sica inquiry the question whether the applicant has
made a showing that the variance can be granted without substantial detriment
to the purpose of the zone plan and zoning ordinance. 423 N.J. Super. at 289-92. It found the use at issue -- construction of a duplex for transitional
25
housing for the homeless -- to be an inherently beneficial use. Id. at 287.
Nonetheless, the appellate court upheld the zoning board’s determination “that
the public benefit to be derived from the replacement of a single four-bedroom
residence with two, two-bedroom residences for the homeless was outweighed
by the detrimental effect upon the integrity of the zoning plan for exclusively
single-family residences that would result from construction of a duplex.” Id.
at 292. In the setting of that case, the Appellate Division reinstated the
board’s denial of the use variance application. Ibid.
C.
1.
As the text and legislative history of the 1997 Amendment make clear,
the Legislature intended that in variance applications for inherently beneficial
uses under N.J.S.A. 40:55D-70, applicants must make a specific showing with
respect to the second negative criterion. See L. 1997, c. 145, § 1. That
determination furthers a longstanding legislative objective: to incentivize
municipalities to make zoning determinations through the planning process,
not by the grant or denial of individual variance applications. See N.J.S.A.
40:55D-70, -89, -89.1; Medici, 107 N.J. at 5.
We conclude that the standard prescribed by Sica should be revised to
incorporate N.J.S.A. 40:55D-70’s statutory language regarding the second
26
negative criterion. We amend the fourth step of the Sica standard as follows,
with new language underscored:
Fourth, the Board should determine whether the
applicant has made a showing that the variance or other
relief sought will not substantially impair the intent and
the purpose of the zoning plan and zoning ordinance.
N.J.S.A. 40:55D-70.
If the applicant has not made such a showing, the
variance may not be granted. If the applicant has made
such a showing, 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.”
[Sica, 127 N.J. at 166 (alteration and omission in
original) (quoting Baptist Home, 201 N.J. Super. at
247).]
We offer the following comments on the application of this standard.
First, the showing that the Legislature mandated under N.J.S.A. 40:55D70’s second criterion is not identical to Medici’s mandate that when a
proposed variance is not for an inherently beneficial use, the applicant must
present an enhanced quality of proof. Compare N.J.S.A. 40:55D-70, with
Medici, 107 N.J. at 4. We reaffirm the Court’s holding in Sica, 127 N.J. at
27
160-61, that the Medici enhanced quality of proof requirement does not apply
when a variance is sought for an inherently beneficial use.
Second, with respect to the second negative criterion, the applicant
cannot rely solely on the designation of the proposed use as an inherently
beneficial use, but must instead present a showing analyzing the impact of the
variance sought on the zoning plan and zoning ordinance. N.J.S.A. 40:55D70; see, e.g., Smart SMR, 152 N.J. at 333-34; Sica, 127 N.J. 162-67; Salt &
Light, 423 N.J. Super. at 291-92.
Third, in the inquiry about whether the applicant has shown that the
variance sought will not substantially impair the zoning plan and zoning
ordinance, the board’s denial of a prior application for a variance for the same
property is not itself dispositive, but may be an important consideration.
Fourth, the Legislature clearly envisioned that governing bodies and
planning boards would document in detail their findings regarding zoning for
inherently beneficial uses in the master plan and development regulations, and
that they would revise those findings at least once a decade to account for
changing conditions. See N.J.S.A. 40:55D-89, -89.1. Although it is
impossible for a governing body or planning board to foresee every land use
issue that may arise in a given municipality, the Legislature’s objective in
enacting N.J.S.A. 40:55D-70 is furthered by a detailed and comprehensive
28
public record of the planning process. Such a record informs the public about
land use policy, alerts developers about potential obstacles to variance
applications with respect to certain properties, and enables courts to effectively
review zoning board decisions.
2.
Given the Legislature’s direction that an applicant for a variance serving
an inherently beneficial use make a specific showing regarding the second
negative criteria -- and our incorporation of that requirement in the Sica
standard in accordance with N.J.S.A. 40:55D-70 -- we view the proper remedy
to be a remand to the Appellate Division for a limited proceeding.
We ask the Appellate Division to apply the Sica standard as amended in
this opinion to the record in this case. The appellate court should determine
whether JMC made a showing that the variance sought will not substantially
impair the Township’s zoning plan and zoning ordinance.
When the Appellate Division reviewed the trial court’s determination, it
declined to consider the Township’s master plan, reasoning that the plan did
not control because it “had not yet been adopted and had not included a
specific vision for [JMC’s] property.” Based on the July 9, 2022 letter from
the Township’s counsel in the trial court, it appears that the Township’s
amended zoning plan was adopted before the Zoning Board’s decision on
29
JMC’s variance application but that the Township’s zoning ordinance
implementing the amended zoning plan had not been enacted at that time. We
ask that the Appellate Division, as part of its inquiry on remand, clarify the
status of the Township’s amended zoning plan and zoning ordinance at the
time of the Zoning Board’s decision.
We express no view with regard to the outcome of the Appellate
Division’s application on remand of the Sica standard, as revised in this
opinion.
IV.
The judgment of the Appellate Division is reversed, and the matter is
remanded to the appellate court for further proceedings in accordance with this
opinion.
CHIEF JUSTICE RABNER and JUSTICES PIERRE-LOUIS, WAINER
APTER, FASCIALE, NORIEGA, and HOFFMAN join in JUSTICE
PATTERSON’s opinion.
30