On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1670-10.
The opinion of the court was delivered by: Skillman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Alvarez and Skillman.
The opinion of the court was delivered by SKILLMAN, J.A.D. (retired and temporarily assigned on recall).
This appeal involves a board of adjustment's denial of an application for a use variance for construction of a duplex to provide transitional housing for two homeless families in a neighborhood zoned exclusively for single-family residences. We conclude that even though the proposed duplex for the homeless would be an inherently beneficial use that satisfies the positive criterion for a use variance, the board of adjustment did not abuse its discretion in determining that the public benefit to be derived from this proposed duplex was outweighed by the detrimental effect upon the integrity of the zoning plan that would result from construction of a two-family residence in an area zoned exclusively for single-family residences.
Plaintiff Salt & Light is a non-profit organization that provides transitional housing for homeless families. Plaintiff owns a one-fifth acre lot in a Willingboro neighborhood zoned exclusively for single-family residences. The lot was formerly occupied by a four-bedroom, single-family house that plaintiff used to provide transitional housing for single homeless families. However, this house was severely damaged by fire in November 2009 and had to be demolished.
Plaintiff proposed to replace this house with a duplex containing two, two-bedroom residences for two homeless families. Each residence would contain a separate kitchen and bathroom. Because single-family residences are the sole permitted use in the zoning district where plaintiff's lot is located, plaintiff applied to the Willingboro Board of Adjustment for a use variance.
At the hearing on the application, plaintiff's executive director, Kent Pipes, testified that there are currently more single-parent homeless families with two to three children than two-parent homeless families with a large number of children. Consequently, he determined that plaintiff could better serve the needs of the homeless by providing two, two-bedroom residences for two small homeless families rather than a single four-bedroom residence for one large homeless family. He also testified that the proposed two, two-bedroom units would have the capacity for the same number of residents as had formerly occupied the single four-bedroom unit (approximately six to eight).
Plaintiff's planner, Robert Hall, testified that the proposed duplex would be slightly larger than the single-family house that formerly occupied the lot (2,100 square feet compared with 1,800 to 1,850 square feet), but that it would fully comply with the sideyard and other bulk requirements of the zoning ordinance. Hall also testified that the duplex would serve the "specialized needs" of the homeless for adequate housing and thus serve the public good.
A number of members of the public spoke in opposition to the application, contending among other things that the proposed duplex would conflict with the current development of the neighborhood, which is zoned for and occupied exclusively by single-family residences.
At the conclusion of the hearing, the Board voted to deny the application on the ground that plaintiff had failed to satisfy either the positive or negative criteria for the grant of a use variance. In particular, the Board found that the proposed duplex would be "located in a single-family residential zone . . . in the middle of a block containing only single-family homes" and therefore "would constitute a substantial detriment to the neighborhood." The Board also noted that "Willingboro was built many years ago as a grouping of single-family houses" and that "there are no duplex homes in the Township."
Plaintiff appealed the denial of its application to the Law Division. While acknowledging the deference a court is supposed to extend to a board of adjustment's denial of a use variance, the trial court reversed the Board's denial and held that plaintiff was entitled to a variance for the proposed duplex. Relying upon our decision in Homes of Hope, Inc. v. Eastampton Township Land Use Board, 409 N.J. Super. 330 (App. Div. 2009), the court concluded that transitional housing for the homeless is an "inherently beneficial use" and therefore plaintiff satisfied the positive criterion for a use variance. The court also concluded that plaintiff had satisfied both negative criteria for a use variance. In rejecting the Board's conclusion that construction of plaintiff's proposed duplex in a single-family zoning district would "substantially impair the intent and the purpose of the zone plan and zoning ordinance," the court stated: "[N]aturally a duplex in a single[-]family residential home will have some tendency to ...