The Township Council has passed a resolution urging the state legislature to promptly adopt amendments to the Fair Housing Act that would reinforce the protection against builders’ remedies that municipalities receive if they obtain substantive certification from the State Council on Affordable Housing for their affordable housing plans.
The resolution, passed September 14, is in response to what has been known as the “Houses of Hope” decision made by three state appeals judges that could upend municipalities’ COAH protection from developers.
Typically, developers apply for a use variance at local zoning boards when they are trying to get a use that is not permitted in local zoning, such as putting retail use in a residential zone or increasing the density of development to more than is permitted in that zone.
The case centered around “inherently beneficial uses.” An inherently beneficial use is one that is considered beneficial to the area, without substantial detriment to the public. A developer could seek to go beyond the restrictions in local zoning if it could prove it was an inherently beneficial use.
In the 1970s, the state Supreme Court ruled that affordable housing is inherently beneficial, making it easier for developers to get a use variance for a development using affordable housing as a use, until the 1980s, when the Mount Laurel decisions were handed down, and COAH was created to address this inherently beneficial use. Communities that have satisfied their affordable housing obligation have no further affordable housing obligation. Technically, if a developer claimed that building more affordable housing than permitted was an inherent beneficial use, but the municipality had satisfied its obligations under COAH, and its plan was certified, the municipality would be protected from the developer’s claims.
However, in the Easthampton case, announced last month, the court ruled the opposite way. It involved a nonprofit organization known as Houses of Hope, which filed a use variance application with the Easthampton board, seeking permission to build eight multi-family dwellings in a zone only permitting single family homes. The decision made was that the dwellings requested by the developer were an inherently beneficial use, and the court agreed, despite the fact that Easthampton was certified by COAH, and even had 25 percent of excess units already in its plan.
Township Attorney Michael Herbert said the decision would allow developers to come to the township with use variances and, because affordable housing is a beneficial use, would be able to argue for more housing.
