Homes of Hope, Inc. ("Homes") is a non-profit corporation organized by but independent of the First Presbyterian Church of Mount Holly. Its purpose is to provide low cost housing for the poor and homeless. Preventing deterioration of the Church's neighborhood is an incidental concern. This opinion considers Homes' right to a variance permitting the conversion of a single family dwelling, situated near the Church and owned by Homes, into two apartments. It concludes that the variance, denied below, should be granted.
Homes owns three properties containing six dwelling units in the area of the Church. All are used to provide low cost or no cost accommodations to individuals who cannot afford decent housing. The property in question has six bedrooms and can accommodate two families. It has been used by large but single, extended families in the past. It is located in a zone which permits only single family dwellings although nine multifamily dwellings are located within 200 feet.
N.J.S.A. 40:55D-70d permits variances "in particular cases and for special reasons . . . to allow . . . an increase in the permitted density." "Density" in this context "means the permitted number of dwelling units per gross area of land to be developed." N.J.S.A. 40:55D-4. Section 70d also provides that no variance may be granted unless it "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". An applicant for a "d" variance, in order to be successful, must prove the presence of "positive criteria" and the absence of "negative criteria".
"Inherently beneficial" uses significantly advance the general welfare and therefore automatically satisfy the special reasons-positive criteria requirement. The concept has been recognized in a number of cases. In Kohl v. Mayor & Council of Fair Lawn, 50 N.J. 268 (1967), the court said:
The cases in this Court in which a significant factor has been the contribution of the proposed use for the "general welfare" all have involved uses which inherently served the public good. [citing cases involving schools and a hospital]. . . . In all of the above cited cases the very nature of the use gave rise to special reasons for the grant of a variance, and in those cases we did not require a finding that the general welfare could be best served by locating the proposed use at the specific site in question. [at 279; citations omitted]
In DeSimone v. Greater Englewood Housing Corp. No. 1, 56 N.J. 428 (1970), the court considered an application for a variance which would permit construction of low and moderate income housing. It said:
"Special reasons" is a flexible concept; broadly speaking, it may be defined by the purposes of zoning set forth in N.J.S.A. 40:55-32, which specifically include promotion of "health, morals or the general welfare." So variances have been approved for many public and semi-public uses because they significantly further the general welfare. [at 440]
We specifically hold, as a matter of law in the light of public policy and the law of the land, that public, or, as here, semi-public housing accommodations to provide safe, sanitary and decent housing, to relieve and replace substandard living conditions or to furnish housing for minority or underprivileged segments of the population outside of ghetto areas is a special reason adequate to meet that requirement of N.J.S.A. 40:55-39(d) [now N.J.S.A. 40:55D-70(d)] and to ground a use variance. [at 442; emphasis added]
Rolfe v. Borough of Emerson, 141 N.J. Super. 341 (Law Div. 1976), lists a number of cases dealing with inherently beneficial uses. Among them is DeSimone, the use in which is so described. Id. at 355. In Medical Realty v. Board of Adjustment of the City of Summit, 228 N.J. Super. 226 (App.Div.1988), the court said:
Whether an applicant shows "special reasons" is decided on a case-by-case basis. [citing Kohl ] A distinction is drawn, however, between those proposed uses which inherently serve the public good and those which do not. Where the proposed use does not inherently serve the public good, the applicant has the burden of proving that the use promotes the general welfare because the proposed site is particularly suited for the proposed use. [at 230]
The Supreme Court, in DeSimone, well in advance of present day housing and homeless crises, recognized that the furnishing of housing for "minority or underprivileged segments of the population" inherently served the public welfare. In Brunetti v. Mayor and Council of the Twp. of Madison, 130 N.J. Super. 164, 168 (Law Div.1974), the court said: "A need for low and moderate-income housing constitutes a special reason justifying a zoning ...