NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1840-12T2

ADVANCE AT BRANCHBURG II, LLC,

Plaintiff-Appellant,

v.

TOWNSHIP OF BRANCHBURG BOARD OF

ADJUSTMENT, a municipal public

entity of the State of New Jersey,

Defendant-Respondent.

___________________________________

Argued October 9, 2013 – Decided

Before Judges Grall, Waugh, and Nugent.

On appeal from the Superior Court of New 

Jersey, Law Division, Somerset County, 

Docket No. L-1689-11.

Katharine A. Muscalino argued the cause for 

appellant (Porzio, Bromberg & Newman, P.C., 

attorneys; Peter J. Wolfson, of counsel; Ms. 

Muscalino, on the briefs).

Peter E. Henry argued the cause for 

respondent (Dillon, Bitar & Luther, L.L.C., 

attorneys; Mr. Henry, of counsel and on the 

brief).

Mark S. Anderson argued the cause for amicus 

curiae Township of Branchburg (Woolson 

Sutphen Anderson, P.C., attorneys; Mr. 

Anderson and Angela C. Vidal, on the brief).

The opinion of the court was delivered by 

APPROVED FOR PUBLICATION

November 1, 2013

APPELLATE DIVISION

November 1, 2013
2 A-1840-12T2

WAUGH, J.A.D.

Plaintiff Advance at Branchburg II, LLC (Advance), appeals 

the Law Division's November 13, 2012 order dismissing its action 

in lieu of prerogative writs against the Township of Branchburg 

Board of Adjustment (Board). We affirm.

I.

We discern the following facts and procedural history from 

the record on appeal.

Advance owns a 31.79-acre property in the Township's I-2 

industrial zone. The property consists primarily of cleared 

land, with woods around the edges, and a wetland and riparian 

zone along Route 22. In addition to an office building on an 

adjacent lot, nearby uses include additional office and 

industrial buildings to the west and across Route 22, singlefamily homes, including those in the North Branch Hamlet and a 

mobile-home park, to the north and east, and public park land to 

the south. 

Principal uses permitted in the I-2 zone include "[o]ffice 

buildings for executive, engineering and administrative 

purposes," "[s]cientific and research laboratories," 

"[w]arehousing," "[a]ssembly and fabrication using previously 

manufactured components," and "[a]gricultural uses." 

Branchburg, N.J. Ordinance No. 2008-1114 § 3-19. Conditional 
3 A-1840-12T2

uses include "[g]overnmental uses and public utility 

facilities," as well as principal uses that involve 

"extraordinarily hazardous substance facilities." Ibid. 

Housing is not a principal or conditional use in the zone.

In August 2009, Advance filed an application with the Board

seeking a use variance, N.J.S.A. 40:55D-70(d)(1), for

construction of a multi-family residential development 

consisting of 292 units, of which fifty-nine would be affordable

housing units. The development as proposed consists of twentyeight buildings, including a mix of apartments, condominiums, 

and townhouses. Affordable housing units would be integrated 

with the market-rate units. 

 The Board took testimony and considered the application 

during eleven public hearings between July 2010 and July 2011. 

Advance argued before the Board that inclusion of the fifty-nine 

affordable units, approximately twenty percent of the total, 

rendered the entire development an inherently beneficial use for

the purposes of the (d)(1) variance. The Board ultimately 

disagreed and framed its analysis of the application as a 

"classic, standard" (d)(1) variance, as opposed to one in which 

the positive criteria were satisfied by the inherently 

beneficial use. The Board voted to deny Advance's application
4 A-1840-12T2

at its meeting in July 2011, and memorialized its decision in a 

resolution adopted in September.

In October, Advance filed a complaint seeking to overturn

the Board's denial of the (d)(1) variance. It also asserted 

claims of discriminatory zoning against the Board and Branchburg 

Township (Township). In those counts, Advance sought a 

builder's remedy under the Fair Housing Act, N.J.S.A. 52:27D-301 

to -329.19.

1 See Toll Bros., Inc. v. Twp. of W. Windsor, 173 

N.J. 502, 512 (2001). In April 2012, the Board and the Township 

moved for dismissal of the claims seeking the builder's remedy. 

The motion was granted in April.

2 

Following argument by counsel in October 2012, the trial 

judge placed an oral decision on the record explaining his 

reasons for upholding the Board's denial of the (d)(1) variance 

and dismissing Advance's amended complaint. The judge concluded 

that granting the (d)(1) variance requested by Advance would 

amount to awarding a builder's remedy through the variance 

 

1 The parties have argued, and we agree, that the merits of this 

case do not turn on the status of the Township's compliance with 

the Fair Housing Act. Nothing in our decision would prevent the 

Township from deciding to change the zoning in the future to 

comply with its Fair Housing Act obligations or prevent Advance 

from seeking to build on its land in the event it is ultimately 

found to be entitled to a builder's remedy.

2 Advance filed an amended complaint shortly thereafter, but did 

not add any additional claims.
5 A-1840-12T2

process rather than through the mechanism established by the 

Fair Housing Act. He entered an implementing order on November 

13. This appeal followed. We subsequently granted the 

Township's application to appear as amicus curiae.

II.

On appeal, Advance argues that (1) its proposed housing 

development is an inherently beneficial use in the context of a 

(d)(1) variance application, (2) the requested (d)(1) variance 

would not constitute zoning by variance or interfere with the 

Township's ability to plan for affordable housing, and (3) the 

trial judge erred in failing to find that the positive criteria 

outweighed the negative criteria even if the proposed 

development is not inherently beneficial. Before addressing the 

merits of the case, we outline the law that governs our 

consideration of this appeal. 

A.

Our standard of review for the grant or denial of a 

variance is the same as that applied by the Law Division. 

Bressman v. Gash, 131 N.J. 517, 529 (1993). We defer to a 

municipal board's factual findings as long as they have an 

adequate basis in the record. Lang v. Zoning Bd. of Adjustment 

of N. Caldwell, 160 N.J. 41, 58 (1999); Fallone Props., LLC v. 

Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 
6 A-1840-12T2

2004). We are ordinarily not bound by an agency's determination 

on a question of law, In re Distrib. of Liquid Assets, 168 N.J.

1, 11 (2001), and a municipal board's construction of its own

ordinances is reviewed de novo. Nevertheless, we "recognize the 

board's knowledge of local circumstances and accord deference to 

its interpretation." Fallone, supra, 369 N.J. Super. at 562; 

accord DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super.

161, 174 (App. Div.), certif. denied, 181 N.J. 544 (2004). Like 

the trial judge, we may not "substitute [our] own judgment for 

that of the municipal board invested with the power . . . to 

pass upon the application." Kenwood Assocs. v. Bd. of 

Adjustment of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976). 

Where an applicant's proposal for a variance is denied, the 

applicant bears "the heavy burden of proving that the evidence 

presented to the board was so overwhelmingly in favor of the 

applicant that the board's action can be said to be arbitrary, 

capricious or unreasonable." Med. Realty Assocs. v. Bd. of 

Adjustment of Summit, 228 N.J. Super. 226, 233 (App. Div. 1988). 

This is because "more is to be feared in the way of breakdown of 

zoning plans from grants than denials of variances." Galdieri 

v. Bd. of Adjustment of Morris, 165 N.J. Super. 505, 515 (App. 

Div. 1979). 
7 A-1840-12T2

In Kinderkamack Road Associates, LLC v. Mayor & Council of 

Borough of Oradell, 421 N.J. Super. 8, 12-13 (App. Div. 2011), 

we reiterated that 

[b]ecause of the legislative preference for 

municipal land use planning by ordinance 

rather than variance, use variances [under 

N.J.S.A. 40:55D-70(d)(1)] may be granted 

only in exceptional circumstances. E.g., 

Nuckel v. Borough of Little Ferry Planning 

Bd., 208 N.J. 95 [(2011)] (acknowledging 

this preference); Funeral Home Mgmt., Inc.

v. Basralian, 319 N.J. Super. 200, 207 (App. 

Div. 1999) (stating that "only exceptional 

cases warrant use variances"). Therefore, a 

municipal board of adjustment may permit "a 

use or principal structure in a district 

restricted against such use or principal 

structure" only where the applicant can 

demonstrate "special reasons" for the 

variance. N.J.S.A. 40:55D-70(d)(1). This 

requirement is known as the "positive 

criteria." New Brunswick Cellular Tel. Co. 

v. Borough of S. Plainfield Bd. of Adj., 160 

N.J. 1, 6 (1999). In addition, a variance 

application must meet the "negative 

criteria," ibid., by "showing 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." 

N.J.S.A. 40:55D-70(d).

Regarding the positive criteria, the 

Court has stated that "'special reasons' 

takes its definition and meaning from the 

general purposes of the zoning laws" 

enumerated at N.J.S.A. 40:55D-2. Burbridge

v. Twp. of Mine Hill, 117 N.J. 376, 386 

(1990) (citing Kohl v. Mayor of Fair Lawn, 

50 N.J. 268, 279 (1967)). In Saddle Brook 

Realty, LLC v. Township of Saddle Brook 

Zoning Board of Adjustment, 388 N.J. Super.

67, 76 (App. Div. 2006), we observed three 
8 A-1840-12T2

situations in which "special reasons" may be 

found: 

(1) where the proposed use 

inherently serves the public good, 

such as a school, hospital or 

public housing facility; (2) where 

the property owner would suffer 

"undue hardship" if compelled to 

use the property in conformity 

with the permitted uses in the 

zone; and (3) where the use would 

serve the general welfare because 

the proposed site is particularly 

suitable for the proposed use.

[(Internal citations and quotation 

marks omitted).]

. . . .

All use variance applicants must 

satisfy the first prong of the negative 

criteria, which requires proof that "the 

variance can be granted 'without substantial 

detriment to the public good.'" [Medici v. 

BPR Co., 107 N.J. 1, 22 n.12 (1987)]. In 

addition, any proponent of a use that is not 

inherently beneficial must satisfy "an 

enhanced quality of proof" that requires 

"clear and specific findings by the board of 

adjustment that the variance sought is not 

inconsistent with the intent and purpose of 

the master plan and zoning ordinance." Id.

at 21. These findings "must reconcile the 

proposed use variance with the zoning 

ordinance's omission of the use from those 

permitted in the zoning district." Ibid.

See also Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. 

of Adjustment (Medical Center), 343 N.J. Super. 177, 200 (App. 

Div. 2001) (quoting Smart SMR of N.Y., Inc. v. Borough of Fair 

Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998)) ("[I]f the 
9 A-1840-12T2

proposed use is inherently beneficial, the applicant's burden of 

proof is significantly lessened because 'an inherently 

beneficial use presumptively satisfies the positive 

criteria.'").

The Legislature has defined an "inherently beneficial use" 

as one "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." 

N.J.S.A. 40:55D-4. An inherently beneficial use is evaluated 

under the standard set forth in Sica v. Board of Adjustment of 

Township of Wall, 127 N.J. 152, 164-66 (1992), which calls for a 

balancing of the positive and negative criteria against one 

another, taking into account the public interest involved, the 

detriment to the community, and possible conditions the board 

can apply to mitigate any detriment. The applicant under this 

more relaxed standard need not satisfy the "enhanced quality of 

proof" set forth by the Court in Medici, supra, 107 N.J. at 21.

Under Medici, the first inquiry under the negative criteria 

focuses on the potential effects of the variance on the 

surrounding properties. "The board of adjustment must evaluate 

the impact of the proposed use variance upon the adjacent 
10 A-1840-12T2

properties and determine whether or not it will cause such 

damage to the character of the neighborhood as to constitute 

substantial detriment to the public good." Id. at 22 n.12 

(internal quotation marks and citation omitted).

Satisfaction of the second prong of the negative criteria 

analysis normally requires the applicant also "demonstrate 

through 'an enhanced quality of proof . . . that the variance 

sought is not inconsistent with the intent and purpose of the 

master plan and zoning ordinance.'" Smart SMR, supra, 152 N.J.

at 323 (quoting Medici, supra, 107 N.J. at 21). The enhanced 

standard articulated in Medici guards against "'arbitrary action 

and untrammeled administrative discretion.'" Medici, supra, 107 

N.J. at 22 (quoting Ward v. Scott, 11 N.J. 117, 126 (1952)). 

This reflects the policy concern that "'because of their 

peculiar knowledge of local conditions[, boards of adjustment] 

must be allowed wide latitude in the exercise of [variance] 

discretion[,]'" and zoning change is most appropriately 

accomplished legislatively, rather than through excessive and 

arbitrary use of variance discretion. Id. at 23 (quoting Kramer 

v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965)). 

B.

We turn first to the issue of whether the housing 

development with an affordable housing element proposed by 
11 A-1840-12T2

Advance is, as a matter of law, an inherently beneficial use for 

the purposes of a (d)(1) variance application. That 

determination will govern whether we apply the Sica or Medici

standard to our review of the Board's actions. 

Advance relies on our decision in Homes of Hope, Inc. v. 

Eastampton Township Land Use Planning Board, 409 N.J. Super.

330, 336 (App. Div. 2009) (citing Sica, supra, 127 N.J. at 165),

in which we stated that "[a]ffordable housing is an inherently 

beneficial use." The Board and the Township, however, point to 

the fact that Homes of Hope involved a proposal to build eight 

units of affordable, multi-family housing in a residential zone 

that permitted only single-family homes. They argue that, 

although a project including only affordable housing units may 

be inherently beneficial, the addition of affordable units to a 

proposed development in which most of the proposed units are

market-rate housing does not make the entire project inherently 

beneficial. We agree.

In support of its position, Advance relies on several 

unreported opinions of this court. They concern cases in which 

(1) the development at issue was totally composed of affordable 

units, (2) only the affordable units of a larger residential 

development required a variance, and (3) the issue was not

actually determined by the court. It is well established that 
12 A-1840-12T2

unreported opinions have no general precedential effect and that 

they may not be cited for that purpose. R. 1:36-3. Although a

panel of this court may find the prior unreported opinions of 

other panels to be persuasive, our review of the specific 

opinions relied upon by Advance persuades us that they are 

unhelpful because the factual situations in those cases are not 

substantially similar to the case before us. 

Relying on Medical Center, supra, 343 N.J. Super. at 193,

Advance asserts that "the market units are inherently beneficial 

by virtue of their support of the affordable units." The 

inherently beneficial use in Medical Center was the operation of 

an acute care hospital, the issue was 

whether the "back-office" functions of an 

admittedly inherently beneficial use under 

the [Municipal Land Use Law], N.J.S.A.

40:55D-70d, (section d), fall within the 

umbrella of the core use so as [to] preclude 

the necessity of applying the enhanced 

burden of proof required for section d 

relief.

[Id. at 185.]

In our opinion, we set out a framework for analysis of that 

issue and remanded to the board. 

The gist of Advance's argument is that, because the 

financial viability of the affordable units proposed for its 

development depends on its ability to build four times as many 

market-rate units, those market-rate units are an integral part 
13 A-1840-12T2

of the inherently beneficial use of affordable housing, just as 

the back-office units were integral to the inherently beneficial 

operation of the hospital. We do not find that reasoning 

persuasive. 

In Medical Center, we remanded and focused the decisionmaking process on the function of the relatively small number of 

back-office units in relation to the core healthcare purposes of 

the larger hospital. Id. at 205-211. We opined that, although 

some of the units might appropriately be built in the 

residentially zoned area adjacent to the hospital because of the 

integration of their function with the operation of the hospital 

and the need for close proximity to it, others might not. Id.

at 206-09. However, it was the larger beneficial use that 

potentially permitted the smaller non-inherently beneficial uses

in the residential zone. There is nothing in our opinion to 

suggest that the analysis we established would be applicable

where the predominant use is not the inherently beneficial one.

In addition, we do not find the financial benefit upon 

which Advance relies, even if combined with the social benefit 

of mixed-income housing, to be comparable to the relationship 

between the hospital and back-office operations on which we 

relied in Medical Center. There, the concern was whether the 

back-office facilities needed to be near the hospital on an 
14 A-1840-12T2

ongoing basis so that it could function as a healthcare 

institution. Here, the issue is whether Advance needs to build 

a large, predominantly market-based development in the

industrial zone to finance its ability to build a smaller number 

of affordable units in the same location. 

A developer's ability to build market-rate units 

undoubtedly facilitates its building of affordable housing

financially, and the mixture of affordable and market-rate 

housing may well provide benefits to the residents of both.

However, we see no basis under our current statutory or 

decisional law to hold that the inclusion of affordable housing 

as a relatively small component of a much larger residential 

development transforms the entire project into an inherently 

beneficial use for purposes of obtaining a (d)(1) variance under 

circumstances such as those existing here.

Consequently, the trial judge did not err in declining to

find that Advance's project was an inherently beneficial use.

[At the direction of the court, the 

discussion of the remaining issues in the 

appeal has been omitted from the published 

version of the opinion.]

Affirmed.