On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-429-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lisa.
Plaintiff UMH of Vineland, Inc. owns and operates a 281 unit mobile home park in Vineland. It sought a use and density variance for an adjoining parcel zoned for agricultural uses and very low density residential uses to build a fifty unit expansion. The City of Vineland Zoning Board of Adjustment (the Board) denied the use variance. Plaintiff filed a prerogative writs action to overturn the Board's action. Judge Timothy Farrell held that the Board acted reasonably.
In its appeal, plaintiff argues that the expansion of its mobile home park is an inherently beneficial use because it will provide affordable housing. It further argues that the Board's failure to recognize the additional units as an inherently beneficial use contributed to an improper balance of the positive and negative criteria.
In its March 18, 2008 Resolution, the Board found that the existing mobile home park is located entirely within the MHP zone in which mobile or manufactured homes are a permitted use.
The existing mobile home park of 281 manufactured homes is located on two lots containing 91.06 acres. The Board also found that plaintiff sought to locate 13.5 units on Lot 3 within an agricultural zone where manufactured homes were not permitted and permitted residences required a municipal lot size of 100,000 feet or 2.3 acres. The 13.5 unit density requested by plaintiff increased the permitted density by 875%.
The Board further found that the applicant has not met its burden of satisfying special reasons required for the use variance and the density variance.
Additionally, the applicant has not satisfied the negative criteria.
The Board further finds that the applicant could expand the existing mobile home park into Lot 7 and 7.02 without the need of use or density variances. It appears that the need for fifty (50) homes as noted by the applicant is simply to increase profits. Additionally, the Master Plan has a clear statement that the City of Vineland should not permit any additional mobile home park expansions beyond existing MHP Zone boundaries, especially in light of the fact that the City has 5% of all of the manufactured housing within the State of New Jersey and has currently 19 mobile home parks. The applicant's argument that expansion of the mobile home park would permit the construction of recreational areas is not valid since the recreational areas, as proposed, are not accessible by the bulk of the residents of the mobile home park. The intervening pond and wetlands prevents access from the mobile home park and would require traveling along either East Avenue or Garden Road to access those recreational areas. That in fact could cause a safety hazard if individuals are compelled to walk along those roadways. The applicant's argument that a two-sided street, which would include a portion of the MHP Zone and the A-5 Zone is not compelling. The applicant could create a one-sided street within the MHP Zone and delete that portion within the A-5 Zone.
Judge Farrell applied the appropriate standard of review of municipal zoning decisions. Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990); Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268, 296 (1965). He properly held that plaintiff was required to establish special reasons to depart from the existing zoning and the variance relief can be granted without substantial detriment or impairment to the zone plan. Burbridge, supra, 117 N.J. at 384-85. The judge directly addressed and rejected plaintiff's argument that the mobile home park expansion and, specifically, the 13.5 units on Lot 3 in the agricultural zone were affordable housing and an inherently beneficial use. Judge Farrell distinguished between inexpensive housing and affordable housing as contemplated by N.J.S.A. 40:55D-100 to -106, and the Fair Housing Act, N.J.S.A. 52:270-301 to -329.19. He stated:
I agree that the legislature has found that, quote, it is in the public interest to promote the use of manufactured homes as affordable housing in New Jersey. Closed quote.... I suggest that a key portion of this finding is that the promotion of the use of manufactured homes for affordable housing is appropriate. Nothing in this language suggests that all manufactured housing is affordable housing. This interpretation is supported by Section 105 of the statute, which says, quote, "When reviewing and approving development regulations pertaining to residential development, a municipal agency is to be encouraged to review those regulations to determine whether or not mobile home parks are a practicable means of providing affordable housing in the municipality." Closed quote. Clearly the legislature is suggesting that local governments consider mobile home parks when evaluating how it will meet -- how the municipality will meet its fair share of affordable housing. This is a far cry from declaring that all manufactured homes are affordable housing, as that term is used in the cases deciding what uses are inherently beneficial.
It appears that Mr. Raincamp, who was the plaintiff's planner, understood this when he suggested that the plaintiff would comply with the COAH's fair share requirements for this project at the time ...