New Jersey’s courts took significant steps in August 2009 to rein in municipal abuses of the state-delegated powers of eminent domain and zoning. In Township of Readington v. Solberg Aviation Co., et als, 409 N.J. Super, 282 ( App. Div. 2009), the court reversed the trial court’s endorsement of what was alleged to be a pretextual condemnation action taken by the municipality. In ordering a remand and underscoring the court’s disdain of municipal actions challenged, the court stated there ” is a keen interest in revisiting the issues of the Township’s bad faith in a plenary hearing….” In the decision, Homes of Hope, Inc. v. Easthampton Township Land Use Planning Board, 409N.J. Super . 330(App. Div. 2009), the court held that just because a municipality meets its fair-share affordable housing obligation does not mean it has no need for such housing or that such housing is no longer “inherently beneficial” to qualify as a “special reason” to support the grant of a use variance under N.J.S.A. 40:55D-70d of New Jersey’s Municipal Land Use Law (MLUL).

Homes of Hope, Inc. (HFH), a nonprofit organization providing affordable housing, owned a brick building containing four dwelling units in Easthampton Township’s “Residential Medium Density District,” which permitted single-family homes but not multifamily residential dwellings. HFH filed an application with Easthampton’s Land Use Board to construct two duplexes next to its building to create eight affordable housing units on the property, which it agreed to deed restrict as affordable housing. Since construction required a use variance under N.J.S.A. 40:55D-70d (1), HFH had to satisfy both the “positive” and “negative” criteria under the MLUL and contended that the “positive” criteria” were presumptively satisfied since providing affordable housing would advance and improve the general welfare. HFH’s proposed use was “inherently beneficial” and legally sufficient to satisfy the “special reasons” requirement necessary for the granting of “d” variance relief.

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