Daily Development for Wednesday, March 24, 1999

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

ZONING; VARIANCES: A grant of a use variance is predicated on the suitability of a particular site for a particular enterprise and is not necessarily transferable to a subsequent user with a similar, but qualitatively different use.

The Stop & Shop Supermarket Company v. The Board of Adjustment of the Township of Springfield, 315 N.J. Super. 427, 718 A.2d 1218 (App. Div. 1998).

The front of a property was zoned as commercial and the rear of the property was zoned for single family residential use. In 1956, an upscale department store obtained a variance to permit the residential portion of the property to be used for offstreet parking. In 1968, it applied for a use variance to extend the rear portion of its department store building into the residential zone. The zoning board again granted the application, finding that the department store "provided shopping of quality not otherwise available in the community." It further determined that extension of the building into the residential zone would not impair the value or use of the surrounding areas. Years later, the department store abandoned the location.

A supermarket operator purchased the property in 1996. Intending to open a supermarket on the property, it applied to the zoning officer for an interpretation as to whether its proposed use of the property would comport with the previously granted variances. The zoning board's attorney concluded that the proposed use of the property as a supermarket differed substantially from the prior operation as a department store.

The supermarket appealed the attorney's decision to the board. At several hearings, it argued that it could develop the property for any purpose consistent with the permitted commercial use under the municipal zoning ordinance. In effect, it argued that the effect of the variances was to rezone the rear portion of the property from residential to commercial, and that changes in the intensity of the use of the land and traffic were to be considered during the site plan review of the development. The board determined that the prior variances did not authorize operation of a supermarket or a parking lot in a residential zone accessory to such use. In its resolution, the board stressed that its grant of the 1956 and 1968 variances reflected "only the quality, design and intensity of the proposed" department store. The board believed that the operation of a supermarket presented marked differences in traffic patterns, truck deliveries, and hours of operation. It concluded that the supermarket activities were not "similar in nature, kind or use intensity" and were not permitted under the variances previously granted.

The supermarket brought an action in lieu of prerogative writ. The Law Division reversed the board's decision and reasoned that prior variances were "not personal to the owner to whom it [was] granted but [were] available to the grantee's successors." The Law Division also held that the supermarket was not required to show that its operations were "similar in intensity of use" to those of its predecessor in title.

On appeal: held: Reversed: The Appellate Division found that in granting the original variances, the board only considered the specific enterprise proposed by the department store in its application. A use variance "is an official quasilegislative, quasijudicial determination that the use or structure allowed is not offensive to the [zoning] ordinance in the broad context of the particular circumstances." Use variances are appropriate only in exceptional cases. The grant of a use variance is predicated upon the thesis that the "development of [the] site in the community...is particularly appropriate for that very enterprise." Any proposed significant change or alteration in the use of a property requires further consideration by a board of adjustment.

Here, where the board found that the use of the property proposed by the supermarket constituted a substantial intensification of the use permitted under the prior variances, the board could reasonably find that the proposed change of use was substantial and warranted further review through an application for a variance.

Comment 1: Use variances are not popular devices in many jurisdictions, and some jurisdictions do not permit them at all. This case suggests why. A variance decision is based upon a whole variety of circumstances, many of which may themselves change over time. An agency may be pressed to continue to recognize the variance even where the community no longer enjoys the special public benefits that the agency thought justified the variance.

The more typical variance, based upon hardship as to size or density requirements, usually is intended to blunt the hard edges of such rules to accomodate construction. The permitted construction, once completed, will continue to enjoy the benefit of the variance, but will intrude no more upon the existing limitations than contemplated at the time the variance was granted.

It is far more difficult to draw use restriction lines that will limit effectively greater intrusion in the future by the holder of a use variance.

Comment 2: What if the new user is indeed a department store that will generate no more traffic than the first store, but is considerably lower on the economic pecking order? The impacts are the same, but the offsetting benefits are not there. Is the variance lost? The answer, based upon this case, may be "yes."

If that is so, what if the existing user's merchandise similarly declines in quality, either because other stores increase their quality or because the instant store deliberately changes its business strategy? Is the variance lost? If the answer here is "no," then how can a successor in interest be denied the same rights?

These rhetorical questions are designed to demonstrate the difficulties with use variances. Agencies that have the flexibility to do so may want to supplement their variances with "development contracts" that are quite specific in what benefits the developer is promising to the community. Protection against differences in "tone" are very difficult to put into an agreement, but it is possible to identify certain kind of measureable performance standards that likely could be enforced by a court. Landlords do it all the time in their use clauses, with middling success.

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