The Salt & Light Co. Inc. v. Willingboro Twp. Zoning Bd. of Adj., A-3393-10T1; Appellate Division; opinion by Skillman, J.A.D., retired and temporarily assigned on recall; decided and approved for publication December 19, 2011. Before Judges Parrillo, Alvarez and Skillman. On appeal from the Law Division, Burlington County, L-1670-10. DDS No. 26-2-4614 [15 pp.]

Plaintiff The Salt & Light Company Inc., a nonprofit organization that provides transitional housing for homeless families, owns a one-fifth acre lot in a Willingboro neighborhood that was formerly occupied by a four-bedroom, single-family house that plaintiff used to provide transitional housing for single homeless families. That house was severely damaged by a fire and had to be demolished.

Plaintiff proposed to replace the house with a duplex containing two, two-bedroom residences for homeless families. Because single-family residences are the sole permitted use in that zoning district, plaintiff applied to the board of adjustment for a use variance.

At the hearing on the application, plaintiff’s executive director testified that there are currently more single-parent homeless families with two to three children than two-parent homeless families with a large number of children. Consequently, plaintiff sought to better serve the needs of the homeless by providing a duplex for two small families rather than a single residence for one large family. The proposed duplex would have the same capacity as the single unit.

After the board denied the application, finding that plaintiff had failed to satisfy either the positive or negative criteria for the grant of a use variance, plaintiff appealed. The trial court reversed, concluding that transitional housing for the homeless is an “inherently beneficial use” and therefore plaintiff satisfied the positive criterion for a use variance, and that it had satisfied both negative criteria.

Held: Even though the proposed duplex for the homeless would be an inherently beneficial use that satisfies the positive criterion for a use variance, the board of adjustment did not abuse its discretion in determining that the public benefit to be derived from this proposed duplex was outweighed by the detrimental effect on the integrity of the zoning plan that would result from construction of a two-family residence in an area zoned exclusively for single-family residences.

N.J.S.A. 40:55D-70(d) governs an application for a use variance. It provides that a board of adjustment has the power to grant, for special reasons, a variance allowing departure from zoning regulations, but that no variance may be granted without a showing that it can be granted without substantial detriment to the public good and that it will not substantially impair the intent and the purpose of the zone plan and zoning ordinance. The “special reasons” requirement is referred to as the “positive” criterion for a use variance and the “without substantial detriment” and “will not substantially impair” requirements are referred to as the “negative” criteria. If a proposed use qualifies as an “inherently beneficial” use, the applicant’s burden of proof is “significantly lessened” with respect to both the positive and negative criteria.

Homes of Hope Inc. v. Eastampton Twp. Land Use Bd. , 409 N.J. Super. 330 (App. Div. 2009), reaffirmed that affordable housing is an inherently beneficial use. However, the board here argues that because the proposed duplex would have the same capacity as the single-family house it would replace, it would not be any more inherently beneficial than a single-family replica of the prior house, and thus, plaintiff failed to satisfy the positive criterion for the grant of a use variance.

The panel rejects this argument. It says that any housing for the homeless is an inherently beneficial use and that the similarity between housing that would conform with the applicable zoning regulation and housing that would conflict with it is relevant only to determining if the applicant has satisfied the negative criteria, to which the panel then turns.

The panel notes that Sica v. Bd. of Adj. of Wall Twp. , 127 N.J. 152 (1992), set forth the weighing process that a board of adjustment should engage in to determine whether a proposed inherently beneficial use satisfies the negative criteria. Five years after Sica , 40:55D-70 was amended to specifically state that the negative criteria apply to an application for a variance for an inherently beneficial use.

Applying the Sica tests in light of the amendment, the panel concludes that the board did not abuse its discretion in concluding that plaintiff failed to satisfy the negative criteria for the grant of a use variance.

The first step in the weighing process is identification of the public interest at stake. The proposed duplex would provide only a marginally greater public benefit than the house it would replace. The only public benefit would be to better serve the current population of homeless families in the area than a single-family house.

The second step is identification of the detrimental effect of the grant of the variance. Here, the proposed duplex would conflict with the single-family zoning of the neighborhood in which it would be located. Because the neighborhood has been completely built-out with the single-family houses on relatively small lots, the detrimental effect would be significant.

The final step is to weigh the positive and negative criteria and determine whether on balance, the grant of the variance would cause a substantial detriment to the good. The board determined that the public benefit to be derived from the proposed duplex was outweighed by its detrimental effect on the integrity of the zoning plan. In so determining, the board found that “Willingboro was built many years ago as a grouping of single-family homes,” the proposed duplex would be located “in the middle of a block containing only single-family homes,” and that its proposed use for two families “would constitute a substantial detriment to the neighborhood.” The panel says this determination was not arbitrary, capricious and unreasonable, and therefore must be sustained.

— By Judith Nallin

For appellant — Matthew B. Wieliczko (Zeller & Wieliczko; Wieliczko and Deena M. Greble on the briefs). For respondent Salt & Light — Patrick F. McAndrew.