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November 13, 2013

Re: Appellate Decision on Zoning for Mixed Market Rate and Affordable Housing

Dear Mayor:

We would like to take this opportunity to discuss a recent important decision by the New Jersey Appellate Division regarding affordable housing. The case, Advance at Branchburg II, LLC v. Township of Branchburg Board of Adjustment, revolved around the “inherently beneficial use” standard as applied to a housing project that was ¼ affordable housing and ¾ market rate housing. In sum, the court held that, although affordable housing is an “inherently beneficial use” under the Municipal Land Use Law (MLUL), market rate housing does not automatically become “inherently beneficial use” merely because it is paired with affordable housing.

The touchstone of this case was a decision, by the local zoning board, to reject a variance application by the plaintiffs. As stated above, the proposed project was ¼ affordable housing and ¾ market rate housing. The zoning board applied the standard variance review that requires the plaintiff to demonstrate positive and negative criteria. The plaintiff appealed the zoning board’s rejection to the trial court arguing that the zoning board was legally required to apply a lesser review because the project was “inherently beneficial” due to the inclusion of affordable housing. The trial court rejected this argument and upheld the zoning board decisions.

The appellate division in its November 1st decision, in turn upheld the trial court. The appellate division sided with the municipality. It agreed that, “although a project including only affordable housing units may be inherently beneficial, the addition of affordable units to a proposed development in which most of the proposed units are market-rate housing does not make the entire project inherently beneficial.” The League interprets this decision as a good law which will prevent builders from taking advantage of a loophole in the law to construct market rate housing, regardless of a municipality’s zoning plan, by including a miniscule amount of affordable housing.

If you have any questions, please contact Ed Purcell, the League Staff Attorney, at (609) 695-3481 x 137 or

Very truly yours,

William G. Dressel, Jr.
Executive Director



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