Burbridge v. Governing Body

O’HERN, J.,

dissenting.

While I agree generally with the well-reasoned opinion of the majority that the standard for granting a variance to expand a nonconforming use may be seen as somewhere between the traditional standards of “hardship” on the one hand and “special reasons” on the other, I believe that more content should be given to the standard.

We have repeatedly emphasized that a necessary concomitant of the increased power conferred on zoning boards by the Municipal Land Use Law (MLUL), L. 1975, c. 291, N.J.S.A. 40:55D-1 to -112, not just to recommend but to grant use variances, N.J.S.A. 40:55D-70d, is an exacting requirement for the development of standards. See Medici v. BPR Co., 107 N.J. 1, 19-22 (1987). As the majority correctly notes, we have always emphasized that “[planning, not ad hoc decision-making, is the cornerstone of sound governmental policy in this area,” ante at 390, thus inveighing against “imprecise” delegations of the zoning power.

*399The reasons are obvious. The zoning power is too important to be left to ad hoc judgment. Hence we must give more precise content to a grant of permission to expand a nonconforming use than that it serves the purpose of “aesthetics,” albeit admittedly that is one of the recognized purposes of zoning. One man’s work of art may be another man’s eyesore. In addition, common experience tells us that in most instances the nonconforming users will be long-standing members of a community. It asks a good deal of local land use officials to deny such a request when their discretion is so great.

What content then can we give to the standard? I believe that guidance may be drawn from the analogous but less intrusive “c(2)” dimensional variance. N.J.S.A. 40:55D-70c(2); see Kaufmann v. Planning Bd. for Township of Warren, 110 N.J. 551 (1988). At a minimum, we should expect that the expansion of a nonconforming use would advance the purposes of zoning and lessen, not increase, the intrusion on the zoning plan. An easy illustration would be when a small structural addition to the dimensions of a nonconforming use would be accompanied by an improved site plan and by an overall reduction in the intensity of the use. Such a variance would result in less, not more, intrusion. Like the c(2) variance, the variance for expansion should be seen to advance not the purposes of the owner, but rather the purposes of the zone plan. Generally, a greater intensity of use, as here, would run afoul of the principle. Hence, I would, at a minimum, require a remand to the local board to reconsider the matter. Obviously, as the majority notes, the zoning board erred when it concluded that an auto-salvage operation inherently served the public good.

Obviously, too, this case marks the beginning, not the end, of the development of the standard for expansion of a nonconforming use under the MLUL. N.J.S.A. 40:55D-70d. We have emphasized that this process of definition evolves on a case-by-ease basis. See Medici v. BPR Co., supra, 107 N.J. 1 (tracing history of standards applied in use variance cases when adding to the pre-MLUL requirements the requisites of enhanced proof *400and specific findings on negative criteria). The process will serve us as well here.

For remandment — Justices O’HERN and GARIBALDI — 2.

For reversal and remandment — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK and STEIN — 5.