Legislators to Introduce Bill Overriding Court Decision on Affordable Housing

November 21, 2009

By: Henry T. Chou, Esq.

Lawmakers have reacted swifty to the Appellate Division’s recent decision that affordable housing must be accorded “inherently beneficial” status when proposed in use variance applications, even if a town has already otherwise met all affordable housing obligations assigned by the Council on Affordable Housing (COAH).

On September 18, two Republican Senators, Phillip Haines of Burlington County and Christopher Bateman of Somerset County, stated that they would introduce a bill to override Homes for Hope, Inc. v. Eastampton Land Use Planning Board, A-5551-07, a case in which the Appellate Division held that a land use board must consider affordable housing proposed in a use variance application as an “inherently use” irrespective of the town’s COAH status.

To obtain a use variance, i.e., approval for a use not specifically permitted under the zoning ordinance, an applicant needs to demonstrate that its proposed project meets both the “positive” and “negative” criteria required by the Municipal Land Use Law. Typically, to satisfy the positive criteria, an applicant must show that the site is specially suited for the proposed use. The negative criteria requires the applicant to demonstrate that the proposed use will not pose a substantial detriment to the public good and will not substantially impair the purpose of the master plan and zoning ordinance.

An affordable housing development included in a town’s COAH-approved compliance plan is considered an “inherently beneficial use” in the same vein as hospitals and schools, with such status presumptively satisfying the positive criteria without the need to show that the site is specially suited for affordable housing. The Appellate Division’s decision in Homes of Hope extended the “inherently beneficial use” status to affordable housing developments that are not part of a town’s COAH compliance plan, i.e., proposed affordable housing that is in excess of the required number of affordable housing units assigned to a town by COAH. The Appellate Division based its holding on the rationale that additional affordable housing is no less beneficial to society just because a town has already satisfied the minimum numerical requirement imposed by COAH.

Based on reports, the bill proposed by the two Republican lawmakers would allow a land use board to deny use variance applications proposing affordable housing if COAH has already granted substantive certification to that town.

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