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Short Hills Neighborhood Assoc. Zoning Committee, Inc. v. Fair Share Housing Development, Inc.

A-3508-01T3 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; MOUNT LAUREL—Where a Mount Laurel compliance order calls for aggregating an entire development for density calculation purposes, a developer cannot be required to meet the municipality’s maximum density standards as applied only to the actual part of the land to be developed.

A developer owned a four acre tract within a residential development. The developer applied to a planning board for site plan approval and bulk variances to build fifty-four affordable housing units. The bulk variances were required to permit insufficient setbacks. A neighborhood association consisting of residents of the development claimed that the developer also required a density variance because the proposed development called for almost thirteen units per acre while the township zoning ordinance provided for a maximum of ten units per acre. Had a density variance been required, the planning board would not have been permitted to approve the site plans because density variances are approved by a zoning board of adjustment and not a planning board. The developer claimed that it did not need a density variance. It claimed that the entire development, including its own tract, was delineated as an inclusionary site under a consent judgment of compliance entered in a Mount Laurel case. It argued that, since the entire development was included in the consent order, the planning board had to consider not only its land (to determine if the plan met density requirements), but the entire residential development that consisted of one hundred twenty-eight acres. The developer claimed that, if the fifty-four units were considered as part of the entire one hundred twenty-eight acres, the development’s density was below the threshold that required a density variance. The planning board’s attorney agreed with the developer and so advised the board. It found that the project served the purposes of zoning by providing affordable housing, adequate light, air, open space, and appropriate population density. It also found that it satisfied the negative criteria because the project would not substantially impair the intent and purpose of the municipal zoning plan. The association appealed.

The Appellate Division found that the project complied with the municipality’s Residential Inclusionary Planned Development ordinance that had been enacted to comply with the Mount Laurel case. The ordinance required that all development in the inclusionary zone include affordable housing units and also required that the number of affordable housing units be based on the total site acreage or as provided by court order. The Appellate Division noted that the court order in the Mount Laurel case fixed the number of affordable housing units for the entire tract (not just the developer’s property) at fifty-four units (the number of units the developer was planning to build). It found that the entire tract was to be considered in determining if a density variance was required, and, that the project complied with the ordinance. The Court also found that the project satisfied both the positive and negative criteria required to obtain bulk variances. As this was a c(2) variance case, and to satisfy the positive criteria is not necessary to show undue hardship. Instead, the test is whether it is “rooted in the purposes of zoning and planning and advances the purposes of the Municipal Land Use Law.” The Court found that the developer proved that the characteristics of the land presented an opportunity for improved zoning and planning that benefitted the community.

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