Ltr Diane Chandler Zimmerman enc documents 91224

Planning Report: Canterbury Village Page 4 D(2) VARIANCE: EXPANSION OF AN EXISTING NON-CONFORMING USE Positive Criteria MLUL, under § 40:55D-70.d empowers a municipal board of adjustment to approve a use variance only in “in particular cases and for special reasons.” This demonstration of “Special Reasons” is known as the “positive” criteria. The standard for establishing special reasons depends on the type of (d) variance at issue. Case law allows that special reasons exist whenever a project advances the purposes of zoning. (Kohl v. Mayor of Fair Lawn, supra, 50 NJ at 276 (1967)) The purposes of zoning are enumerated in MLUL 40:55D-2. Among the purposes of the act are: a. To encourage municipal action to guide the appropriate use or development of lands in a matter that will promote the public health, safety, morals & general welfare. g. To provide sufficient space in appropriate locations for a variety of residential & commercial uses, both public & private, in order to meet the needs of all NJ citizens. i. To promote a desirable visual environment through creative development techniques and good civic design and arrangements. It has long been held that certain educational, charitable or institutional uses such as a residential health care facility are deemed inherently beneficial, and therefore automatically meet the positive criteria by advancing the “general welfare” of the public. (Sica v. Bd. Of Adjustment of Township of Wall, 127 NJ 152, 159-60, 603 A. 2d 30, 34 (1992)) The general welfare of the public can also be advanced upon demonstration that a site is particularly suited for the proposed use. (Medici v. BPR Co., 107 NJ 1, 18, 526 A.109, 118 (1987)) When seeking a variance for a new commercial facility prohibited in the zoning ordinance, the Medici court actually demands a showing that the site is particularly suited for the proposed use. However, when seeking an expansion of a pre-existing non-conforming use, a lesser showing of special reasons will suffice for the (d)(2) variance, in that any of the purposes of the MLUL may be advanced. (Burbridge v. Mine Hill Township, 117 NJ 376, 568 A2d 527 (1990)) The Burbridge court states that “cases in which the variance would create an entirely new nonconforming use require greater proof to demonstrate the merits of such a variance than do cases in which an applicant seeks only a

tes that “cases in which the variance would create an entirely new nonconforming use require greater proof to demonstrate the merits of such a variance than do cases in which an applicant seeks only a minor expansion of a pre-existing nonconforming use.” The Burbridge court further states that “appearance, aesthetics and compatibility of the use in the neighborhood become uniquely significant, especially when there is not any evidence that the use is ever going to whither and die.” Burbridge also held that in certain circumstances, aesthetic improvement alone can justify a variance to expand a pre-existing non-conforming use. It is my professional opinion that the proposed expansion of the Canterbury Village facility meets the Positive Criteria by advancing the following 3 purposes of zoning: e The proposed expansion promotes public health, safety & general welfare by providing a better, safer and more modern living environment for the residents and their families. The expansion further allows for the reorganization of the facility which creates a safer arrival sequence for visitors and increased security for the residents. (MLUL § 40:55D-2.a.)