The case of Advance at Branchburg II, LLC V. Township of Branchburg Board of Adjustment, (N.J. Super. Ct. App. Div. 2013) dealt with the issue of whether a residential development could be treated as an inherently beneficial use when only approximately 20% of the development was utilized for affordable housing.  The developer was seeking a d (1) use variance for a multi- family residential development consisting of 292 units, of which 59 would be affordable housing units.   The developer argued that the inclusion of the affordable housing component rendered the entire development an inherently beneficial use. 

Applicants have an easier standard in use variance cases if the proposed use is deemed inherently beneficial.  A use that is deemed inherently beneficial presumptively satisfies the positive criteria, while no such presumption exists for a use that is not inherently beneficial.

The Court noted that affordable housing is an inherently beneficial use.  However, in this instance, the developer was proposing to include affordable housing units to a development in which approximately 80% of the units are market rate units.  The developer argued that the market rate units are inherently beneficial as they support the affordable housing units.  In other words, the ability to build the affordable housing units is contingent on being able to construct the market rate units.

While the Court acknowledged that market rate units are needed to develop affordable housing, the Court refused to deem the entire project as one involving an inherently beneficial use.  The Court stated that the developer does not have to build a large predominantly market rate development requiring a use variance in order to finance the construction of the 59 affordable housing units.   The Court refused to allow the inclusion of the affordable housing units to transform a predominantly market rate residential project into an inherently beneficial use. 

This case is illustrative in showing how a Court determines the appropriate standard in a use variance case when there is an inherently beneficial component, but the project’s predominant use is not inherently beneficial.