Homes of Hope, Inc. sought to create eight affordable housing units on an .848 acre lot in the township. The lot was located in a residential zone that allowed single-family homes but did permit multi-family dwellings. The lot already housed a building containing four dwelling units. Homes of Hope’s proposed construction of two duplexes on the lot required a use variance. To obtain a use variance under New Jersey’s Municipal Land Use Law (N.J.S.A. 40:55D-1 to -163), Homes of Hope was required to “satisfy both the positive and negative criteria.” The “positive criteria” required Homes of Hope to demonstrate special reasons for the grant of the variance. Homes of Hope had agreed to deed-restrict the eight units as affordable housing. In support of its variance application, Homes of Hope claimed that providing affordable housing would “improve the general welfare, rendering its proposal inherently beneficial.” An inherently beneficial use presumptively satisfied the positive criteria for a variance.
The township’s planning board (the “Board”) denied Homes of Hope’s variance application. The denial was based on its determination that Homes of Hope’s proposed affordable housing was not inherently beneficial-and thus did not satisfy the required positive criteria. That determination was based on the New Jersey Council on Affordable Housing’s finding that the township had met and surpassed its fair share obligation for affordable housing under the FHA.
Homes of Hope appealed its variance denial. The Superior Court of New Jersey, Appellate Division, reversed the Board’s decision. The court held 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, concluded the court, “continues to foster the general welfare and constitutes a special reason to support a use variance.” The court remanded to the Board “for consideration of Homes of Hope’s variance application in light of its inherently beneficial use status.”
Homes of Hope, Inc. v. Eastampton Township Land Use Planning Board, 2009 WL 2579405 (N.J.Super.A.D., Aug. 24, 2009).
The opinion can be accessed here.
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