Agenda - Planning Commission - 02/06/2014

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Zoning Law Bulletin December 25, 2013 I Volume 7 I Issue 24 Variance —Developer seeks variance for proposed development, which will include affordable housing Developer maintains that its proposal to add affordable housing makes the entire project "inherently beneficial," requiring a more relaxed standard of review Citation: Advance at Branchburg II, LLC v. Branchburg Tp. Bd. of Adjust- ment, 2013 WL 5851864 (NJ. Super. Ct. App. Div. 2013) NEW JERSEY (11/01/13)—This case addressed the issue of whether a housing development with an affordable housing element is, as a matter of law, an inherently beneficial use for the purposes of a (d)(1) variance application. The Background/Facts: Advance at Branchburg II, LLC ("Advance") owned a 31.79-acre property in the Township of Branchburg (the "Township"). The property was in the Township's I-2 zone. In that zone, housing was not a principal or conditional use. On the property, Advance sought to construct a multifamily residential development consisting of 292 units, of which 59 would be affordable housing units. Under the proposal, the affordable housing units would have been integrated into the market -rate units. In furtherance of its proposed plan, Advance filed an application with the Township's Board of Adjustment (the "Board"), seeking a use variance under N.J.S.A. 40:55D-70(d)(1)—known as a (d)(1) variance. In New Jersey, because of the legislative preference for municipal land use planning by ordinance, rather than variance, use variances may be granted only in exceptional circumstances —where the applicant can demonstrate "special reasons" for the variance. (N.J.S.A. 40:55D-70(d)(1).) This require- ment is known as the "positive criteria." The courts have defined such "special reasons" as including those with an "inherently beneficial use." The state Legislature has defined "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.) A variance application must also meet the "negative criteria" 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).) Thus, use variance applicants must satisfy the first prong of the negative criteria by proving that "the variance can be granted `without substantial detri- ment to the public good'." In addition, any proponent of a use that is not inher- 2013 Thomson Reuters 5