Advance at Branchburg, II, LLC v. Branchburg Tp. Bd. of Adj., 433 N.J. Super. 247 (App. Div. 2013). The normal, strict standards for a use variance, as expressed in Medici v. BPR Co., 107 N.J. 1 (1987), are relaxed where the applicant proposes to develop an “inherently beneficial use.” That principle was established in Sica v. Wall Tp. Bd. of Adj., 127 N.J. 152 (1992). [Disclosure: I argued Sica for the successful plaintiff]. As a result, use variance cases sometimes turn on whether a proposed use is inherently beneficial. This case, decided today in an opinion by Judge Waugh, is an example.
Plaintiff owned a 31.79 acre proprerty in an I-2 industrial zone. Permitted uses in that zone included, among others, certain office buildings, scientific laboratories, warehouses, and agricultural uses. Residential use was not permitted. Plaintiff sought a use variance to develop a 292-unit multi-family residential development, which was to include 59 units of affordable housing. Plaintiff contended that the presence of the affordable units, roughly 20% of the total development, rendered the entire proposed project an inherently beneficial use. The Board of Adjustment disagreed and, applying the more rigorous Medici standard, denied the use variance. The Law Division affirmed, reasoning that granting the requested use variance would have the effect of “awarding a builder’s remedy through the variance process rather than through the mechanism established by the Fair Housing Act[, N.J.S.A. 52:27D-3-1 et seq.].” Plaintiff appealed, and the Appellate Division, applying the deferential standard of review applicable to the denial of a use variance, affirmed.
Plaintiff relied on the statement in Homes of Hope, Inc. v. Eastampton Tp. Land Use Planning Bd., 409 N.J. Super. 330, 336 (App. Div. 2009), that “[a]ffordable housing is an inherently beneficial use.” But Judge Waugh distinguished that case as having involved an eight-unit project consisting only of affordable units, in a residential zone that permitted only single-family homes. The panel agreed with the Board of Adjustment here that “although a project including only affordable housing units may be inherently beneficial, the addition of affordable units to a proposed development in which most of the proposed units are market-rate housing does not make the entire project inherently beneficial.”
To meet that argument, plaintiff had cited Medical Center at Princeton v. Princeton Tp. Bd. of Adj., 343 N.J. Super. 177 (App. Div. 2001). There, the Appellate Division found that back-office uses that were part of a larger acute care hospital would not necessarily have to meet the strict Medici test since the hospital itself was inherently beneficial. But there, the “core” use, and the predominant one, was the inherently beneficial hospital, with the back-office aspects being a relatively small component. Here, the reverse was true, where most of the project would consist of market-rate units.
Judge Waugh noted that nothing in the panel’s opinion would prevent plaintiff from obtaining a builder’s remedy through the Fair Housing Act. That remedy could not, however, be achieved under Sica.