                NOT FOR PUBLICATION WITHOUT THE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,               APPROVED FOR PUBLICATION

v.                                         November 1, 2013

TOWNSHIP OF BRANCHBURG BOARD OF           APPELLATE DIVISION
ADJUSTMENT, a municipal public
entity of the State of New Jersey,

     Defendant-Respondent.

___________________________________

         Argued October 9, 2013 – Decided November 1, 2013

         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
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, single-

family 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




                                      2                                 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 twenty-

eight 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




                                                3                                     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.



                                          4                               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.




                                            5                                     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).




                                      6                             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"
         karenware@example.com. 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



                              7                          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



                               8                         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




                                                9                                    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




                                           10                                     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




                                              11                             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



                                           12                                  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 decision-

making 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




                                           13                                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.




                                            14                               A-1840-12T2
