The opinion of the Court was delivered by
Since 1924, when the Legislature first authorized municipalities to adopt zoning ordinances, L. 1924, c. 146, municipal boards of adjustment have been empowered to grant variances from zoning regulations. Preserved in the Municipal Land Use Law (MLUL), L. 1975, c. 291, the variance power is currently codified in subsections c and d of N.J.S.A. 40:55D-70, which impose different standards to govern the grant of the discrete classes of variances authorized by the respective subsections. One of the significant distinctions between subsection c and d variances is that the latter can be authorized only by boards of adjustment, whereas municipal planning boards, in the course of approving subdivisions, site plans, or conditional uses, are empowered to grant subsection c-type variances. See N.J.S.A. 40:55D-60.
In this case the Neptune Planning Board, attempting to exercise that statutory authority, granted the application of respondent First Atlantic Properties Co. (First Atlantic) for site-plan approval of a five-story, forty-four-foot high hotel, concurrently granting respondent’s appeal for a variance from the two-story, thirty-foot height limitations imposed by the Neptune Zoning Ordinance. Neptune, N.J., Zoning Ordinance § 3.1(A) (Jan. 31, 1977).
Plaintiff Commercial Realty and Resources Corp. (Commercial Realty), instituted this suit challenging the Planning Board’s action. The Law Division set aside the Board’s approv
We granted Commercial Realty’s petition for certification, 118
N.J.
224,
I
First Atlantic contracted to purchase a 2.8-acre tract on State Highway 66 in Neptune Township, located in the light-industrial (1-L) zone, apparently the least restrictive of the six commercial-type zones established by the Township zoning ordinance. See Neptune, N.J. Zoning Ordinance § 3.1(A). Hotels were permitted uses in the 1-L zone, which imposed a general height limitation of two stories and thirty feet and a six-story, ninety-foot limitation on office buildings. Hotels were also permitted in the Commercial Service and Executive Service zones, commercial zones more restrictive than the 1-L zone, but in which the height limitation was six stories and ninety feet.
First Atlantic applied to the Township Planning Board for site-plan approval of its proposal to erect a five-story, forty-four-foot-high, 133-room hotel, to be operated by its parent company, Susse Chalet of New Hampshire. Simultaneously, First Atlantic sought variances from the 1-L zone height limitation of two stories and thirty feet. Although asserting that it
The applicant’s witnesses described the proposed hotel, one of thirty-eight Susse Chalet properties existing or under construction, as a limited-service, high-quality hotel servicing primarily commercial customers at rates twenty-five to fifty percent lower than those offered by competing chains. The rooms would not be accessible directly from the exterior parking area, but could be reached only from a central corridor system described as providing enhanced security for patrons. No restaurant, food service, or meeting-room facilities were to be provided. Although based on past experience the chain’s hotels adequately serviced guests and staff by providing .8 parking spaces per room, the plan submitted to the Planning Board contemplated 144 parking spaces, substantially more than the anticipated need.
With respect to the height variance, a professional planner engaged by First Atlantic testified that he found it difficult to reconcile the 1-L zone’s two-story, thirty-foot height limitation on hotels with its six-story, ninety-foot height limitation on office buildings. The witness stated that a four-story office building, approximately forty-four to fifty-feet high, was under construction on Route 66 near the site of the proposed hotel, and that other buildings' in the immediate vicinity exceeded the thirty-foot height limitation on hotels. Noting the similar exterior appearance of the proposed five-story hotel, which was to be erected with a brick facade, and that of permitted, six-story office buildings, the planner questioned whether the Township had intended the 1-L zone’s height limitation to apply to hotels. The planner also observed that in his experience, a two-story limitation on hotels was unrealistic. Observing that the appearance and configuration of the proposed hotel were appropriate for the surrounding area, he anticipated that the hotel would be
The Planning Board approved the site plan and related variances, subject to conditions set forth in its resolution, concluding that the proposed hotel would “further and promote development in the municipality consistent with the * * * Land Use Ordinance.” The resolution’s only acknowledgment of the statutory criteria for a subsection c(2) variance occurs by virtue of the Board’s “adoption” of the conclusions of the applicant’s planner, which include the opinion that no detriment to the master plan or zoning ordinance would result from the grant of the height and parking variances, and that the “benefits” accruing from the variances were substantial because of the compatibility of the proposed use with the development in the surrounding area.
As noted, the Law Division set aside the Board’s action, reasoning that because height variances are cognizable only under subsection d of N.J.S.A. 40:55D-70, the Planning Board’s ancillary authority to grant subsection c-type variances, see N.J.S.A. 40:55D-60a, was inapplicable. The Appellate Division reversed, concluding from its review of the Neptune Zoning Ordinance that there was no specific height limitation regulating hotels in the 1-L zone, nor any evidence that the municipality regarded the variance sought as one over which the Board of Adjustment’s jurisdiction was exclusive. 235 N.J.Super. at 592, 563 A. 2d 577. Accordingly, the court concluded that the required height variance was cognizable under subsection c of N.J.S.A. 40.-55D-70, and hence within the jurisdiction of the Neptune Planning Board. Id. at 592-93, 563 A. 2d 866. The Appellate Division also found sufficient evidence in the record to satisfy the affirmative criteria applicable to a c(2)-type variance:
The lot to be developed by a “motor inn” was part of a major subdivision of 54 acres located on the highway and near the Garden State Parkway. The entiredevelopment was part of a plan referred to at the planning board hearing as a “Corporate Center.”
Respecting the height variance and its relationship to the development, the corporate center was designed to attract business from outside the community. The “motor inn” was targeted to such a commercial traveler, a budget facility, with no frills. There was testimony that the motor inn as designed promoted internal security (as opposed to a two-story motel, with outside access stairways) in order to meet the demonstrated security needs of such travelers, often women. Thus, the record supported a conclusion that varying from the original general height limitation for the district had positive relevance to the town’s planned economic development.
[Id. at 595-96,563 A.2d 866 .]
Concluding that the record also furnished adequate support for the Board’s determination that the variance satisfied the negative criteria, id. at 596, 563 A. 2d 866, the Appellate Division, exercising original jurisdiction, reinstated the Planning Board’s action approving the site plan and granting the variances.
II
Remarkably, more than sixty years after enactment of the state’s first zoning enabling legislation, the statutory authority for the grant of variances from height restrictions remains a matter of uncertainty. That circumstance suggests to us the wisdom of retracing our steps.
After earlier attempts at statutory authorization of zoning were frustrated by constitutional challenges, see Cunningham,
Control of Land Use in New Jersey by Means of Zoning,
14
Rutgers L.Rev.
37, 38 (1959), the Legislature passed a zoning enabling statute in 1924,
L.
1924,
c.
146, modeled after the standard state zoning act prepared by the United States Department of Commerce. See
Andrews v. Board of Adjustment of Ocean Township,
30
N.J.
245, 255, 152
A.2d
580 (1959) (Hall, J., dissenting). The 1924 act empowered local boards of adjustment to grant variances “not [ ] contrary to the public interest,” to avoid “unnecessary hardship, and so that the spirit of the
The 1924 zoning act was superseded by chapter 274 of the Laws of 1928, the historical predecessor to N.J.S.A. 40:55D-70. The 1928 Act limited significantly the power of boards of adjustment to grant use variances. Pursuant to chapter 274, boards of adjustment could grant use variances only with respect to properties within 150 feet of a zoning district in which the use was permitted. L. 1928, c. 274, § 9(3). For properties more than 150 feet from a district in which the use was permitted, the power to grant variances was vested in the governing body, on recommendation by the board of adjustment. L. 1928, c. 274, § 9(4). As noted by Justice Jacobs in Grundlehner v. Dangler, 29 N.J. 256, 265, 148 A. 2d 806 (1959), the paragraph of the 1928 Zoning Act authorizing boards of adjustment to grant variances was codified at N.J.S.A. 40:55-39c, and the paragraph authorizing governing bodies to grant variances after recommendation by a board of adjustment was codified at N.J.S.A. 40:55-39d. Although the statutory language was not explicit, the Court of Errors and Appeals held in Brandon v. Montclair, 125 N.J.L. 367, 368, 15 A. 2d 598 (1940), that a finding of “unnecessary hardship” was a prerequisite to the grant of a use variance under either subsection c or d of N.J.S.A. 40:55-39. See Cunningham, supra, 14 Rutgers L.Rev. at 74-75.
The Legislature enacted significant amendments to subsections c and d of
N.J.S.A.
40:55-39 in 1948, 1949, and 1953. In 1948 the Legislature deleted from subsection c the limitation that use variances could be granted only with respect to properties within 150 feet of a zoning district in which the proposed use was permitted, and added to subsection c the following language we now refer to as the “negative criteria”: “provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning ordinance.”
L.
1948,
c.
305, § 6. In addition, the Legislature amended subsection d to
The 1948 amendment posed the question whether the new “special reasons” standard in subsection d eliminated the necessity for proving “hardship,” as the Court had required in
Brandon v. Montclair, supra,
125
N.J.L.
at 368,
Thus, the anomalous state of affairs after the 1948 amendment to
N.J.S.A.
40:55-39 was that boards of adjustment could grant use variances under subsection c based on proof of “undue hardship,” and could recommend the grant of use variances to the governing body under subsection d based on proof of special reasons, a standard that could but need not be satisfied by proof of hardship.
Monmouth Lumber Co. v. Ocean Township, supra,
9
N.J.
at 77,
The Legislature resolved the overlapping jurisdiction of subsections c and d over use variances in 1953 by an amendment to subsection c, which added the following clause: “provided, however, that no variance shall be granted under this paragraph to allow a structure or use in a district restricted against such structure or use.” L. 1953, c. 288. A statement appended to the amendment explained its purpose:
At the present time there is considerable confusion throughout the State with respect to the powers of the boards of adjustment as set forth in Revised Statutes, section 40:55-39, particularly concerning paragraphs c and d of the section.
The purpose of the present bill is to clarify such powers. The bill has been endorsed by the New Jersey State League of Municipalities, the New Jersey Institute of Municipal Attorneys and the New Jersey Federation of Official Planning Boards.
[Statement, L. 1953, c. 288.]
Thus, the 1953 amendment divested boards of adjustment of the power to grant use variances, see
Ward v. Scott (II),
16
N.J.
16, 26-27,
Between 1953 and the enactment of the Municipal Land Use Law,
L.
1975,
c.
291, it appeared to be a settled principle of
The only reported cases involving height variances during that period are
DeSimone v. Greater Englewood Housing Corp. No. 1, supra,
56
N.J.
at 443-44,
Isko
involved an application to build a six-story, ninety-one-foot addition to St. Barnabas Hospital in Livingston, to be integrated with the existing six-story, ninety-five-foot main building. When the main building was erected, the hospital use was permitted and the zoning ordinance imposed no limitation on the height of nonresidential structures. An intervening amendment imposed a thirty-five-foot height limitation in the
In contrast to the dictum in
Isko, Place v. Board of Adjustment of Saddle River, supra,
42
N.J.
324,
Enactment in 1975 of the MLUL, L. 1975, c. 291, and the subsequent adoption of various amendments to the MLUL, blurred the established distinction between subsection c and d variances. Although the MLUL adopted in subsections c and d of N.J.S.A. 40:55D-70 the basic provisions of subsections c and d of N.J.S.A. 40:55-39 (repealed by L. 1975, c. 291, § 80), it introduced two significant changes in variance practice. First, boards of adjustment were empowered to grant use variances by a two-thirds vote, N.J.S.A. 40:55D-70d, subject to review by the governing body, L. 1975, c. 291, § 8, a power they had possessed previously only under the 1924 statute, L. 1924, c. 146, and during the brief period between the 1948 and the 1953 amendments. L. 1948, c. 305; L. 1953, c. 288. In addition, planning boards were authorized, in the course of review of subdivisions, site plans, or conditional-use variances, to approve certain subsection c-type variances, specifically for lot area, lot dimensions, setback, and yard requirements. L. 1975, c. 291, § 47.
The 1979 amendments to the MLUL eliminated any limitation on the subsection c variances that a planning board could grant,
L.
1979, c. 216, § 19, but also empowered boards of adjustment to grant bulk variances as well as use variances under subsection d.
L.
1979,
c.
216, § 23. The effect of that amendment was to produce an “unanticipated shift of applications from planning boards to zoning boards.”
Kaufmann v. Planning Bd. for Warren Township,
110
N.J.
551, 559,
The most recent amendments to the MLUL,
L.
1984,
c.
20, sought to restore but modify the historical distinction between
The 1984 amendments also eliminated the automatic right of appeal to the governing body from board-of-adjustment grants of subsection d variances, limiting such appeals to those municipalities that provide specific authorization therefor by ordinance. L. 1984, c. 20, § 6.
As noted, the 1984 amendments added to the variances cognizable under subsection d those for increased floor-area ratio and increased density. “Floor area ratio” is defined as “the sum of the area of all floors of buildings or structures compared to the total area of the site,” and “density” is defined as “the permitted number of dwelling units per gross area of land to be developed.”
N.J.S.A.
40:55D-4. As is self-evident from the latter definition, density restrictions affect only the
number
of individual residential units that may be constructed on a tract of land. Floor-area restrictions affect the aggregate size — height, width, and depth — of residential and commercial structures in relation to the area of the land on which they are to be built. Thus, municipalities seeking to exercise enhanced control over the density of residential development, or over the aggregate size, including height, of residential and commercial structures relative to lot area, should adopt density or floor-area-ratio regulations, or both. Variances from such regulations may be granted only under subsection d.
L.
1984,
c.
20, § 12. We are informed by
amici
that in earlier drafts of the
Plaintiff has called to the Court’s attention an Assembly bill proposing an amendment to N.J.S.A. 40:55D-70, A-1440, 204 Legis., 1st Sess. (1990), which would add to the category of variances cognizable under subsection d an application to permit a structure that “exceeds by 10 feet or 10% the maximum height permitted in the district.”
Ill
The foregoing historical overview of variance proceedings provides some obvious insights. Putting aside the 1924 Act,
L.
1924,
c.
146, under which boards of adjustment granted all variances under a single standard, the legislative scheme, except for brief periods of overlap, has been to separate use variances from other variances and to enhance their significance, requiring approval by the governing body prior to the MLUL,
see L.
1928, c. 274, § 9(4), and
L.
1948, c. 305, and pursuant to the MLUL, requiring approval by affirmative vote of at least five members of the board of adjustment.
See N.J.S.A.
40:55D-70d. The rationale for the stricter statutory supervision over use variances is based on their greater potential for disrupting a municipal zoning plan. The brief period between 1948 and 1953 when use variances were cognizable under subsection c or d of the prior statute, see
supra
at 554-556,
Although the Legislature has seen fit to include variances from floor-area-ratio and density restrictions among those warranting the more-protective treatment afforded to subsection d variances,
L.
1984,
c.
20, § 12, it has not expressly included variances from height restrictions within subsection d. The Legislature may have reasoned that variances from floor-area-ratio requirements, which regulate the aggregate size of structures — including height, width, and depth — in relation to the area of the tract under development, pose a greater threat to the stability of the zoning scheme than do other dimensional variances such as those involving restrictions on height or setbacks. We recognize that an application for a substantial height variance has the potential to disrupt the municipal zone plan, see
North Bergen Action Group v. North Bergen Planning Board,
122
N.J.
567,
The Appellate Division expressed concern, however, that a determination that height variances are cognizable only under subsection c would ignore the longstanding statutory language that includes within subsection d those variances seeking to permit a “use
or principal structure
in a district restricted against such use or
principal structure,” N.J.S.A.
40:55D-
Our conclusion that variances from height restrictions are dimensional variances cognizable only under subsection c is generally consistent with the distinction in
N.J.S.A.
40:55D-65a and b between use regulation, on the one hand, and the regulation of bulk, height, lot size, and intensity of land use. It is also consistent with the treatment of area and dimensional variances in other jurisdictions.
See
3 R. Anderson,
American Law of Zoning,
§§ 18.07, 18.46 (2d ed. 1977) (characterizing area variances as those involving setback lines, frontage requirements, height, lot size, density, and yard requirements);
accord Wilcox v. Zoning Bd. of Appeals of Yonkers,
17
N.Y.
2d 249, 254,
In the few reported cases involving variances from height restrictions, such variances have been considered to be cognizable under subsection c of
N.J.S.A.
40:55D-70, or under subsection c of the predecessor statute,
N.J.S.A.
40:55-39. See
DeSimone v. Greater Englewood Housing Corp. No. 1, supra,
56
N.J.
at 443-44,
IV
As noted, the Appellate Division, exercising original jurisdiction,
Rule
2:10-5, determined that the record adequately supported the Planning Board’s determination to grant the required variances for parking and height. We concur with the Appellate Division’s affirmance of the parking variance and with its conclusion that on this record the Planning Board could properly have found that the design of the proposed hotel, including its height and interior access to rooms, was consistent with commercial development in the area and “had positive relevance to the town’s planned economic development.” 235
N.J.Super.
at 596,
We also concur in the Appellate Division’s determination that the Planning Board’s procedures did not violate the Open Public Meeting Act,
N.J.S.A.
10:4-6 to -21. 235
N.J.Super.
at 597,
As modified, the judgment of the-Appellate Division is affirmed.
For modification and affirmance — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, STEIN, and GARIBALDI-7.
For reversal — None.