Do zoning boards have the final word on the interpretation of a specific word in an ordinance?
Approval of “non-traditional” residential uses, such as sober living homes, often sparks dispute, especially when the permissibility of the use turns on how a single word in the zoning ordinance is interpreted. Such matters of interpretation are of vital importance to owners, developers, and applicants because a zoning board’s decision often feels final, yet courts will step in when boards stray beyond what an ordinance actually says. An owner or developers’ ability to win on appeal can depend on what evidence was (or wasn’t) put into the record before the board.
In this post, I will focus on the Appellate Division’s recent decision in HEF Ventures, LLC vs. Township of Hanover Zoning Board of Adjustment and the practical takeaways it offers about the limits of board deference, how courts interpret unambiguous ordinance language, and why building a complete record before the zoning board is a winning strategy.
Background and Disposition:
HEF Ventures, LLC operated a licensed cooperative sober living residence (CSLR), a home for individuals recovering from drug and alcohol addiction, in a single-family structure within the Township of Hanover’s “R-10” single-family residential zone. After operating for several months, The Township’s Construction Officer notified HEF that CSLRs were not permitted within the R-10 zone.
In response, HEF applied to the Township’s Zoning Board of Adjustment seeking a favorable interpretation that their CSLR’s residents constituted a “family” under the Township’s zoning ordinance, which defined a family as “any number of individuals living privately together as a single housekeeping unit and using certain rooms and cooking facilities in common”, thus qualifying their CSLR as a single-family residential use.
After two hearings before the Board, during which HEF presented testimony that its residents shared bedrooms, common areas, housekeeping duties, meals, and recreational activities, the Board denied their application, finding that the facility was too transient and too operator controlled to constitute a family. The Board also denied HEF’s alternative use variance request.
In turn, HEF filed an action in lieu of prerogative writs, which resulted in the Law Division reversing the Board’s finding on the grounds that the Board improperly interpreted “permanence” and “resident control” requirements into the definition of family set forth in the ordinance, and that the facility’s residents did not constitute a family.
Last month, the Appellate Division affirmed the Law Division’s reversal, holding that the Board erred as a matter of law by reading such requirements into an unambiguous ordinance that did not contain them.
This decision by the Appellate Division addresses a number of land use issues, however, the key takeaways are that:
- Boards are permitted to interpret their own ordinances;
- Board decisions are generally entitled to substantial deference;
- The “meaning” of ordinance language is a question of law reviewed de novo for which no deference is given; and
- Building a strong record before the board is of utmost importance.
Boards Are Permitted to Interpret Their Own Ordinances:
N.J.S.A. 40:55D-70(b) expressly authorizes zoning boards of adjustment to “(h)ear and decide requests for interpretation of the zoning map or ordinance.” A “favorable interpretation” application requires boards to determine whether an applicant’s proposed use falls within a particular ordinance definition (i.e., whether the use is permitted or prohibited).
In HEF’s case, after the Township’s Construction Officer declared their CSLR a non-permitted use, HEF applied to the Board for a favorable interpretation of the word “family”, which is exactly what the Board is empowered to do under the MLUL
Board Decisions Are Generally Entitled to Substantial Deference:
Given zoning boards’ “peculiar knowledge of local conditions”, their findings of fact are “shrouded in presumptive validity” and, therefore, given “substantial deference”. When a boards’ findings of fact are grounded in the record, they are not disturbed. When a boards’ findings are proven arbitrary, capricious, or unreasonable, or where they display a “clear abuse of discretion”, Courts will reverse. Further, courts will also defer to an administrative agency’s “reasonable” or “permissible” interpretation of an ambiguous ordinance, even if the court would interpret the ordinance differently.
The Township of Hanover’s Board leaned heavily on this principle, arguing on appeal that the trial court failed to afford it the requisite deference. The Appellate Division rejected the Board’s argument because the Board went beyond fact-finding by effectively rewriting the plain ordinance language, which deference does not protect.
The “Meaning” of Ordinance Language Is a Question of Law Reviewed De Novo — No Deference:
The critical limitation on Board deference is that: “[a]lthough a municipality’s informal interpretation of an ordinance is entitled to deference . . . the meaning of an ordinance’s language is a question of law that we review de novo”. When the sole issue becomes the meaning of an ordinance and its language, the deference given to a Board decision, and even the deference given to a trial court’s determination on same, is limited.
In HEF, the Appellate Division reviewed the meaning of Hanover’s ordinance de novo, applying this standard to the definition of “family”. They concluded that the Board read into the ordinance requirements like “permanence,” “stability,” and “resident control” – all of which simply did not exist. It is clear that no amount of Board deference will save an interpretation that contradicts the plain language of the ordinance itself.
The Importance of Building a Strong Record Before the Board:
Throughout the Appellate Division’s holding, they repeatedly referred to the record before the Board as the factual basis for its decision. The Court was able to reverse the decision of the Board because HEF had built a detailed record through a) testimony from its Director of Operations and its licensed professional planner, and b) documentary evidence (i.e. DCA licensing records and guidance letters) – establishing every element of the “single housekeeping unit” portion of the definition of “family” at issue: shared bedrooms, communal chores, shared meals, and joint recreational activities. One piece of documentary evidence, a DCA letter from the Chief of the Bureau of Rooming and Boarding House Standards, which specifically distinguished CSLRs from rooming houses, was not in the record before the Board and could not be relied upon later. This omission underscores the importance of presenting all support you have before the Board to establish a record in the event the case is ever litigated in court and serves as a cautionary reminder that supporting evidence omitted from the Board record may be lost entirely.
