What's All the Hype About?: Local Control Over the Development of Affordable Housing

The Appellate Division’s August 24 decision in Homes of Hope, Inc. v. Eastampton Tp. Land Use Planning Bd. sparked a political backlash against the New Jersey Council on Affordable Housing. A closer look at the court’s decision reveals that this hostility has been misdirected.

Homes of Hope, Inc. v. Eastampton Tp. Land Use Planning Bd ., 409 N.J.Super. 330 (App. Div. 2009), has resulted in much debate — as well as confusion — about municipal control over the development of affordable housing, and the protections which a municipality receives from Mt. Laurel litigation (a.k.a. “builder’s remedy” litigation) as a result of achieving compliance with the regulations of the New Jersey Council on Affordable Housing (COAH). Homes of Hope centered on a nonprofit developer’s application to a municipal land use board for a use variance (also known as a “d” variance) from the land use regulations in order to build a 100 percent affordable development. Specifically, the developer sought to build eight affordable units (two duplexes) on a .848-acre lot which was zoned for single-family residential use. Generally, a developer must apply to the municipal land use board for a use variance in order to exceed the permitted density.

Use Variance Analysis Under the Municipal Land Use Law