On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-580-08.
The opinion of the court was delivered by: Winkelstein, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Gilroy and Chambers.
The issue presented is whether affordable housing continues to constitute an inherently beneficial use for purposes of obtaining a use variance, N.J.S.A. 40:55D-70d(2), after the municipality in which the property is located has met its fair share obligation under the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329.19, and its concomitant regulations. We conclude that a municipality's compliance with the FHA by meeting its fair share obligation does not impact affordable housing's inherently beneficial use status for purposes of obtaining a use variance. Affordable housing continues to foster the general welfare and constitutes a special reason to support a use variance.
Plaintiff Homes of Hope, Inc. (Homes of Hope), a non-profit provider of affordable housing, filed an application with the Township of Eastampton Land Use Planning Board (the Board), seeking to create eight affordable housing units on an .848 acre lot in the Township. The lot is located in an area designated as the R-M Residential Medium Density District. While single family homes are permitted in that zone, multifamily dwellings are not.
Currently located on the lot is a brick building containing four dwelling units. Homes of Hope proposes to construct two duplexes, one on each side of the existing building. It has agreed to deed-restrict the eight units as affordable housing. Construction of the additional four affordable housing units requires a use variance pursuant to N.J.S.A. 40:55D-70d(2). To obtain the variance, Homes of Hope must satisfy both the positive and the negative criteria. Sica v. Bd. of Adjustment of Twp. of Wall, 127 N.J. 152, 156 (1992). Homes of Hope claims that providing affordable housing will improve the general welfare, rendering its proposal inherently beneficial, thus presumptively satisfying the positive criteria. Burbridge v. Mine Hill, 117 N.J. 376, 386 (1990).
Prior to Homes of Hope's proposal, the Council on Affordable Housing (COAH), see N.J.S.A. 52:27D-305, determined that a 100-unit "low-income family rental development" left the Township with a surplus of twenty-one units toward its fair share obligation for affordable housing for 1999-2014. Based on that determination, the Board found that Homes of Hope's proposed affordable housing was not inherently beneficial, and thus evaluated its use variance application in light of both the positive and negative criteria, denying the application.
The trial court reversed the Board. Relying on Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel (Mount Laurel II), 92 N.J. 158 (1983), Judge Sweeney stated that it is "without question that the [Mount Laurel C]court did not intend for each municipality to meet only the needs of the homeless within strict boundaries of each town," but, instead, to contribute to the needs of the entire State. The court concluded:
I'm satisfied that the Board has to consider this application in light of . . . the standard of inherently beneficial [use]. Of course, that means only that the Board must reconsider the application and not that it must automatically grant it . . . . [T]he case has to be reheard, that an opportunity has to be given to the applicant to present its facts in the more favorable light that is attendant to . . . the inherently beneficial use standard, . . . and the [B]oard retains its right to decide whether a variance is appropriate under the new standard.
We agree with the trial court.
To obtain a use variance under section 70d of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, an applicant must satisfy both the positive and negative criteria. Sica, supra, 127 N.J. at 156. The positive criteria require the applicant to demonstrate special reasons for the grant of the variance. Ibid. Special reasons may be found in N.J.S.A. 40:55D-2, the purposes of the MLUL. An inherently beneficial use presumptively satisfies the positive criteria, while other uses must demonstrate that they are particularly suited for the location. Burbridge, supra, 117 N.J. at 386. Where an applicant proposes an inherently beneficial use, "the proofs supporting special reasons focus less on the characteristics of the specific property and to a greater extent on whether the proposed use furthers the general welfare." Stop & Shop Supermarket Co. v. Bd. of Adjustment of Springfield, 162 N.J. 418, 430 (2000).
The negative criteria require the applicant to demonstrate that a grant would not result in "substantial detriment to the public good and . . . will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." Sica, supra, 127 N.J. at 156 (internal quotation omitted). Consequently, even if an applicant proposes an inherently beneficial use, the applicant must still demonstrate ...