NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5551-07T2

HOMES OF HOPE, INC.,

Plaintiff-Respondent,

v.

EASTAMPTON TOWNSHIP LAND USE

PLANNING BOARD,

Defendant-Appellant.

___________________________________________________

Argued April 28, 2009 - Decided

Before Judges Winkelstein, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-580-08.

Christopher J. Norman argued the cause for appellant (Norman, Kingsbury & Norman attorneys; Mr. Norman, on the brief).

Patrick F. McAndrew argued the cause for respondent.

Carl S. Bisgaier argued the cause for amicus curiae Fair Share Housing Center (Flaster/Greenberg P.C., attorneys; Mr. Bisgaier, on the brief).

The opinion of the court was delivered by

WINKELSTEIN, P.J.A.D.

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]ourt 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 that any detriment or impairment is sufficiently outweighed by benefits to the public good. Id. at 165-66.

Affordable housing is an inherently beneficial use, id. at 165, having "the right to locate on any appropriate site where the . . . impact of their operations can be alleviated to a reasonable extent by the imposition of suitable conditions and restrictions." Id. at 163 (internal quotation omitted). Adverse impacts having only "a minimal effect" on the community, zone plan, or ordinance are insufficient to warrant denial of a variance application on the basis that it did not satisfy the negative criteria. Id. at 165. Thus, in determining whether to issue a variance for an inherently beneficial use, a board should "weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good." Id. at 166. Weighing the criteria in this way makes "it more difficult for municipalities to exclude inherently beneficial uses," but allows for exclusion where the detriment outweighs the benefit to the public good. Ibid. (quoting Baptist Home of S. Jersey v. Borough of Riverton, 201 N.J. Super. 226, 247 (App. Div. 1985)).

The board contends, however, that after a municipality attains its fair share of affordable housing pursuant to the FHA and its concomitant regulations, affordable housing in that municipality is no longer entitled to inherently beneficial use status. In support of that contention, the Board cites to Mount Laurel II, supra, 92 N.J. at 219, in which the Court assured municipalities that they were "not . . . required to provide more than their fair share" of affordable housing. The Court stated:

Once a municipality has . . . provide[d] a realistic opportunity for the construction of its fair share of lower income housing, the Mount Laurel doctrine requires it to do no more. . . . Mount Laurel is not an indiscriminate broom designed to sweep away all distinctions in the use of land. Municipalities may continue to reserve areas for upper income housing, may continue to require certain community amenities in certain areas, may continue to zone with some regard to their fiscal obligations: they may do all of this, provided that they have otherwise complied with their Mount Laurel obligations.

[Id. at 259-60.]

In light of this language, and based on its interpretation of the FHA and case law, the Board claims that because the Township has met its fair share obligation, it no longer has a need for low or moderate income housing and, consequently, that type of housing is no longer inherently beneficial so as to qualify as a special reason to support a use variance. We reject that argument.

The public policy of this State has long been that persons with low and moderate incomes are entitled to affordable housing. In DeSimone v. Greater Englewood Housing Corporation No. 1, 56 N.J. 428, 442 (1970), a pre-MLUL decision, Justice Hall sets forth in no uncertain terms that the public policy of New Jersey is "to provide safe, sanitary and decent housing, to relieve and replace substandard living conditions or to furnish housing for minority or underprivileged segments of the population outside of ghetto areas." The Court concluded that this type of housing constituted a special reason upon which to ground a use variance. Ibid. In Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel (Mount Laurel I), 67 N.J. 151, 178, cert. denied, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed.2d 28 (1975), the Court came to substantially the same conclusion, stating: "There cannot be the slightest doubt that shelter, along with food, are the most basic human needs."

Subsequent court decisions reaffirmed the proposition that satisfying low income housing needs inherently serves the general welfare. Holmdel Builders Ass'n v. Twp. of Holmdel, 121 N.J. 550, 568 (1990) ("Housing needs are clearly related to the general welfare under the zoning laws."); Riese-St. Gerard Hous. Corp. v. City of Paterson, 249 N.J. Super. 205, 215 (App. Div. 1991) (holding that low income senior citizen housing inherently serves the general welfare); Homes of Hope, Inc. v. Mount Holly Twp. Zoning Bd. of Adjustment, 236 N.J. Super. 584, 588 (Law Div. 1989) ("[H]ousing accommodations for the underprivileged at a reduced cost makes an important contribution to the general welfare."); Borough of Roselle Park v. Twp. of Union, 113 N.J. Super. 87, 89, 98 (Law Div. 1970) (finding that three-story senior citizens housing project inherently served the public good).

Professor William M. Cox, one of the State's leading commentators on zoning and land use issues, concisely stated the following: "[I]t [is] beyond dispute that provision of affordable housing for low and moderate income persons [is] an absolute essential in the promotion of the general welfare required in all local land use regulation[s]." William M. Cox, New Jersey Zoning and Land Use Administration,