ZB 23 09 Seton Hall Preparatory Resolution submission

FINAL — V1 —5.16.24 28. The Board further recognizes that when a proposed use is held to be an "inherently beneficial" use, the positive criteria for (d)(2) and (d)(3) variance relief is presumptively satisfied, See Smart SMR v. Fair Lawn Bd, of Adj., 152. N.J. 309, 323 (1998), citing Burbridge v. Mine Hill Tp., 117 N.J. 376, 394 (1990); Accord, Cell v. Zoning Bd. of Adjustment, 172 N.J. 75, 90 (2002); Salt & Light Co. v. Willingboro, 423 N.J. Super. 282, 287 (App. Div. 201 1), certif. den. 210 N.J. 108 (2012); House of Fire v. Clifton Bd, of Adj., 379 N.J. Super. 526, 535 (App. Div. 2005); Med. Ctr. v. Princeton Tp. Zoning, 343 N.J. Super. 177, 200 (App. Div. 2001). An "inherently beneficial" use is defined at N.J.S.A. 40:55D-4 as: "[...] a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such 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. 29. Additionally, as it pertains to all variance relief pursuant to N.J.S.A. 40:55D-70, an applicant must also demonstrate the negative criteria, by demonstrating that the proposed deviation(s) from the requirements of the Ordinance will neither pose a "substantial detriment" to the public good, nor "substantially impair" the intent and purpose of a municipality's master plan and zoning ordinance. 30. The Board also recognizes that, within the context ofa request for a (d)(2) or d(3) variance where the proposed use is an "inherently beneficial" one, New Jersey Courts have applied a different standard for evaluating the negative criteria. As per the Sica decision, in evaluating the negative criteria for (d)(2) or (d)(3) variance relief within the context of a proposed "inherently beneficial" use, a board of adjustment must (i) "identify the public interest at stake;" (ii) "identify the detrimental effect that will ensue from the grant of the variance"; (iii) consider "reduc[ing] the detrimental effect by imposing reasonable conditions on the use;" and (iv) "weigh