Agenda - Planning Commission - 02/06/2014

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December 25, 2013 I Volume 7 ( Issue 24 Zoning Law Bulletin ently 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." Advance argued before the Board that inclusion of the 59 affordable hous- ing units (i.e., 20% of the total), rendered the entire development an "inher- ently beneficial use" for the purpose of the (d)(1) variance. Accordingly, Advance argued that its application should be evaluated under the more relaxed standard —which balances the positive and negative criteria against one another. Advance maintained that it did not need to satisfy the "enhanced quality of proof" standard, which would require Advance to show that the variance sought would not be inconsistent with the intent and purpose of the master plan and zoning ordinance. The Board disagreed with Advance. Instead of evaluating the variance ap- plication under a "special reason" analysis, it evaluated is under the "classic, standard" (i.e., enhanced quality of proof standard) (d)(1) variance. The Board ultimately denied Advance's application. Advance appealed. The trial court upheld the Board's denial of the (d)(1) variance. Advance again appealed. DECISION: Judgment of Superior Court, Law Division, armed. Rejecting Advance's argument, the Superior Court, Appellate Division, held that although a project including only affordable housing units may be inherently beneficial, the addition of affordable units to a proposed develop- ment in which most of the proposed units are market -rate housing —such as the one proposed by Advance —does not make the entire project inherently beneficial. In other words, the court said it saw "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." See also: Sica v. Board of Adjustment of Tp. of Wall, 127 N.J. 152, 603 A.2d 30 (1992). See also: Medici v. BPR Co., 107N.J. 1, 526A.2d 109 (1987). Compare: Homes Of Hope, Inc. v. Eastampton Tp. Land Use Planning Bd., 409 N.J. Super. 330, 976 A.2d 1128 (App. Div. 2009) (stating that "[a]fford- able housing is an inherently beneficial use" but involving a proposal to build affordable, multifamily housing in a residential zone that permitted only single-family homes as compared to Advance's proposal to add affordable units to a proposed development in which most of the proposed units were market -rate housing). Case Note: The discussion of the remaining issues in the appeal was omitted from the published version of the court's opinion. Presumably, having found Advance's proposed use was not `inherently beneficial," the court agreed with the Board that the variance applica- 6 ©2013 Thomson Reuters