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Wednesday, August 26, 2009

Homes of Hope Decision (Appellate Division) Nullifies Zoning Laws

The recent Appellate Division decision Homes of Hope vs. Eastampton Township, Superior Court Appellate Division Docket No. A-5551-07T2, is shocking.

The decision effectively nullifies a township's zoning ordinances by raising the bar very high for any zoning board to deny a variance from zoning ordinances if the applicant for a variance wants to build a project that constitutes a "beneficial use," such as -- but not limited to -- the construction of affordable housing.  

From a legal perspective, the court takes a clear "activist" approach as opposed to the "judicial restraint" which respects the voice of the people as expressed through the legislature.   The enemies of judicial activism have plenty of cannon fodder with this decision.

The restriction on a zoning board's ability to enforce its own codes or to issue or deny variances renders the codes pretty meaningless.   The decision comes close to prescribing criteria whereby a developer becomes entitled to a variance if there is a "beneficial use." 

Variance abuse is common and recognized in both New Jersey and New York.  This decision will encourage it... as well as eminent domain actions or similar "redevelopment" actions which could have the same impact or result as an eminent domain seizure.   This is a very pro-builder, anti-existing-owner decision that threatens the basic property rights of all New Jersey property owners (commercial or residential).   Now, this decision encourages developers (or townships) to develop properties and apply for all sorts of variances negating zoning laws, with no regard for current owners or residents or any adverse impact on their property values or quality of life, as long as they assert their "beneficial use" safe harbor. 

OK, let's seize Grandma's house to build a new highway -- it's a beneficial use!   See where this is going?

As an unintended consequence, townships will be far less inclined to build any affordable housing if this decision is upheld by the Supreme Court if their previous compliance with the Council on Affordable Housing (COAH) mandates does not help them argue against a "beneficial use."   Now, zoning boards may be expected to presumptively rubber stamp denials on affordable housing applications and force any developer of such projects to go to court.   Short term, this will reduce affordable housing construction without question.

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