Senators Philip Haines (R- Burlington) and Christopher “Kip” Bateman (R-Somerset) have drafted legislation that would address the ill-advised Appellate Division court decision, Homes Of Hope, Inc. vs. Eastampton Township Land Use Planning Board , which trumps local zoning regulations, mandating more government housing in local towns.
“The Appellate Division decision forcing towns to allow government-mandated housing even after the town has met their quota flies in the face of common sense,” Haines stated. “Sadly, this has required us to draft legislation to solve an issue that shouldn’t have existed in the first place.”
The bill would amend the “Municipal Land Use Law” to provide that the variance process cannot be used to force a municipality to accept more than a fair share of affordable housing. A recent Appellate Division decision in which it was held that a municipality can be required by use variance to approve additional affordable housing despite compliance with the obligation established by COAH. The statutory process of applying for and being granted substantive certification by the Council on Affordable Housing encompasses opportunities for developers to object to the affordable housing plan and zoning scheme of a municipal applicant. Municipalities often expend significant resources in planning and obtaining such certification.
“During the debate over the new Mount Laurel law and regulations the people of New Jersey were assured time and time again by the Commissioner of the Department of Community Affairs that they would not be forced to accommodate more government mandated housing if they met there obligations under the law,” Bateman continued. “We know now that those statements are untrue, that is why we must overhaul the entire COAH process, from top to bottom, starting with this absurd Appellate Division decision.”
An Act concerning zoning variances and amending P.L.1975, c.291.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 57 of P.L.1975, c.291 (C.40:55D-70) is amended to read as follows:
57. Powers. The board of adjustment shall have the power to:
a. Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative officer based on or made in the enforcement of the zoning ordinance;
b. Hear and decide requests for interpretation of the zoning map or ordinance or for decisions upon other special questions upon which such board is authorized to pass by any zoning or official map ordinance, in accordance with this act;
c. (1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to article 8 of [this act] P.L.1975, c.291 would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship; (2) where in an application or appeal relating to a specific piece of property the purposes of this act or the purposes of the “Educational Facilities Construction and Financing Act,” P.L.2000, c.72 (C.18A:7G-1 et al.), would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to article 8 of [this act] P.L.1975, c.291; provided, however, that the fact that a proposed use is an inherently beneficial use shall not be dispositive of a decision on a variance under this subsection and provided that no variance from those departures enumerated in subsection d. of this section shall be granted under this subsection; and provided further that the proposed development does not require approval by the planning board of a subdivision, site plan or conditional use, in conjunction with which the planning board has power to review a request for a variance pursuant to subsection a. of section 47 of this act; and
d. In particular cases for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of [this act] P.L.1975, c.291 to permit:
(1) a use or principal structure in a district restricted against such use or principal structure[,] ;
(2) an expansion of a nonconforming use[,] ;
(3) deviation from a specification or standard pursuant to section 54 of P.L.1975, c.291 (C.40:55D-67) pertaining solely to a conditional use[,] ;
(4) an increase in the permitted floor area ratio as defined in section 3.1 of P.L.1975, c.291 (C.40:55D-4) [,] ;
(5) an increase in the permitted density as defined in section 3.1 of P.L.1975, c.291 (C.40:55D-4), except as applied to the required lot area for a lot or lots for detached one or two dwelling unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision; or
(6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure. A variance under this subsection shall be granted only by affirmative vote of at least five members, in the case of a municipal board, or two-thirds of the full authorized membership, in the case of a regional board, pursuant to article 10 of this act.
If an application development requests one or more variances but not a variance for a purpose enumerated in subsection d. of this section, the decision on the requested variance or variances shall be rendered under subsection c. of this section.
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.
No municipality shall be required by variance, or otherwise, to provide more than a fair share of affordable housing.
e. In respect to any airport safety zones delineated under the “Air Safety and Zoning Act of 1983,” P.L.1983, c.260 (C.6:1-80 et seq.), no variance or other relief may be granted under the terms of this section, permitting the creation or establishment of a nonconforming use which would be prohibited under standards promulgated pursuant to that act, except upon issuance of a permit by the Commissioner of Transportation. An application under this section may be referred to any appropriate person or agency for its report; provided that such reference shall not extend the period of time within which the zoning board of adjustment shall act.
(cf: P.L.2007, c.137, s.60)
2. This act shall take effect immediately.
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