Agenda - Planning Commission - 12/03/2009

Home

() {~ .'-/ !l' 1. I' '-~/ Zoning Bulletin October 10, 20091 Volume 31 No. 19 variance under New Jersey's Municipal Land Use Law (N.J.S.A. 40:55D- 1 to -163), Homes of Hope was required to "satisfy both the positive and negative criteria." The "positive criteria" required Homes of Hope to demonstrate special reasons for the grant of the variance. Homes of Hope had agreed to deed-restrict the eight units as affordable housing. In support of its variance application, Homes of Hope claimed that provid- ing affordable housing would "improve the general welfare, rendering its proposal inherently beneficial." An inherently beneficial use presump- tively satisfies the positive criteria for a variance. The township's planning hoard (the "Board") denied Homes of Hope's variance application. The denial was based, in large part, on its determination that Homes of Hope's proposed affordable housing was not inherently beneficial-and thus did not satisfy the required positive criteria. That determination was based on the New Jersey Council on Affordable Housing's ("COAH") finding that the township had met and surpassed its fait share obligation for affordable housing under New Jer- sey's fair Housing Act ("FHA") (N.].S.A. 52:27D-301 to -329.19). The Board took the position that: "after a municipality attains its fair share of affordable housing pursuant to the FHA and its concomitant [COAH] regulations, affordable housing in that municipality is no longer entitled to inherently beneficial use status." Homes of Hope appealed its variance denial. The trial court reversed the Board. It said that the in determining the benefits of affordable housing, municipalities had to look not only at " 'the needs of the homeless within strict boundaries of each town,' but, instead, to contribute to the needs of the entire State." The trial court remanded the matter back to the Board to reconsider Homes of Hope's application "in light of ... the standard of inherently beneficial [use]." The Board appealed. DECISION: Affirmed and remanded. The Superior Court of New Jersey, Appellate Division agreed that the Board's decision should be reversed and remanded. The court held that a municipality's compliance with the FHA by meeting its fair share obliga- tion does not impact affordable housing's inherently beneficial use status for purposes of obtaining a use variance. Rejecting the Board's position, the court said that a municipality's compliance with COAH regulations (i.e., meeting its "fair share" of af- fordable housing) "does not change the necessary site-specific analysis necessary for a cd' variance." Even once a municipality meets its "fair share" obligation, affordable housing "continues' to foster the gener- al welfare and constitutes a special reason to support a use variance." Moreover, noted the court, "[a] COAH certification does not mean that a municipality has reached a limit for affordable housing." "[S]ubstan- dard housing will continue to exist. Providing affordable housing to meet that need, on a case-by-case basis, continues to foster the general @ 2009 Thomson Reuters 9 91