March 12th, 2010 | Posted by:
In June, I reported that the New Jersey Legislature proposed a bill (S1202/A3062) that would add the definition of an “inherently beneficial use” to the Municipal Land Use Law and expand the inherently beneficial use status to include wind, solar and photovoltaic facilities. The legislation has been adopted and the following definitions now apply:
“Inherently beneficial use” means a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such a use includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure.
“Wind, solar or photovoltaic energy facility or structure” means a facility or structure for the purpose of supplying electrical energy produced from wind, solar, or photovoltaic technologies, whether such facility or structure is a principal use, a part of the principal use, or an accessory use or structure.
For a copy of the Pamphlet Law click here.
For a discussion of the inherently beneficial use variance standard click here.
June 18th, 2009 | Posted by:
In an attempt to promote renewable energy, the New Jersey Legislature has proposed a bill (S1303/A3062) that would add the definition of an “inherently beneficial use” to the Municipal Land Use Law and expand the inherently beneficial use status to wind, solar and photovoltaic facilities. The concept of an inherently beneficial use was created by the courts to lessen the extremely difficult standard of proof required to obtain a use variance where the use being proposed was, by its very nature, beneficial to the community, such as a school or hospital. In 1997, the concept made its way into the Municipal Land Use Law in order to resolve some ambiguities with the variance standard that was being applied by Zoning Boards, although no definition of an inherently beneficial use has yet appeared in existing statutory law. » Read the rest of this entry «
June 17th, 2009 | Posted by:
Where an applicant would like to introduce a use that is not permitted within a particular zone, that applicant is required to obtain a use variance – a very difficult variance to secure. The Municipal Land Use Law authorizes local zoning boards to grant a use variance where: (1) “special reasons” exist for the variance (the positive criteria); and (2) the variance can be granted without substantial detriment to the public good and will not substantially impair the intent and purposes of the zone plan and zoning ordinance (the negative criteria). N.J.S.A. 40:55d 70(d). Where a proposed use is determined to be “inherently beneficial” to society, the positive criteria and negative criteria requirements are less stringent. Specifically, the positive criteria is presumptively satisfied and the negative criteria is resolved by balancing the benefits of the project against any detriments, considering whether any detrimental effect can be reduced by imposing reasonable conditions, and then determining after weighing of the positive and negative factors (as ameliorated by the conditions) whether the grant of the variance would cause a substantial detriment to the public good. » Read the rest of this entry «