Bill Text: NJ S2527 | 2010-2011 | Regular Session | Introduced
Bill Title: Limits use of inherently beneficial use doctrine when municipality making variance determination has received substantive certification from the Council on Affordable Housing; provides repose from litigation.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-12-09 - Introduced in the Senate, Referred to Senate Community and Urban Affairs Committee [S2527 Detail]
Download: New_Jersey-2010-S2527-Introduced.html
Sponsored by:
Senator LINDA R. GREENSTEIN
District 14 (Mercer and Middlesex)
SYNOPSIS
Limits use of inherently beneficial use doctrine when municipality making variance determination has received substantive certification from the Council on Affordable Housing; provides repose from litigation.
CURRENT VERSION OF TEXT
As introduced.
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] P.L.1975, c.291; 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] P.L.1975, c.291.
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.
With respect to variances requested for the development of affordable housing pursuant to this subsection, a municipality that has been granted substantive certification from the Council on Affordable Housing, which certification remains in good standing, shall not be required to review those variance requests under inherently beneficial use tests, and a denial of a variance under such circumstances shall be subject to repose and reviewable only on the basis of whether the grant of substantive certification by the council is revoked or is no longer in effect.
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.
STATEMENT
This bill amends the "Municipal Land Use Law" to provide that a municipality that has been granted substantive certification from the Council on Affordable Housing (COAH), is not required to review variance requests relating to affordable housing under the inherently beneficial use doctrine. The bill also provides that the denial of a variance under such circumstances will be subject to repose and reviewable only on the basis of whether the grant of substantive certification by the council is revoked or is no longer in effect.
It is the intent of the Legislature to override a recent Appellate Division decision in which the court held that a municipality is required to consider all variance requests for affordable housing units under the inherently beneficial use argument, despite the fact that the municipality in the case was certified by COAH as having met its fair share affordable housing obligation. The bill permits municipalities that are COAH certified to be relieved of considering such a variance request under the inherently beneficial use doctrine, and confers on them immunity from litigation stemming from a variance denial. It was the Legislature's intent under the "Fair Housing Act" to reward municipalities that are under COAH's jurisdiction with protection from litigation. Thus, under the FHA, a developer may not sue a municipality under COAH's jurisdiction, or one with a judgment of repose from the court. The bill grants this same type of repose for land use decisions concerning affordable housing to those municipalities that are certified by COAH as having met their affordable housing obligations.
