January 1, 1900

by Stephen M. Eisdorfer

As New Jersey's elderly population increases, the market for specialized housing for the elderly grows. This housing places little burden on local schools or municipal services, adds little additional traffic to the local roads, and makes a net positive contribution to municipal revenues. Nevertheless, it is often surprisingly difficult for a builder to secure municipal development approvals. In the past year, the courts have issued three decisions that, if properly used, may assist builders in piercing through municipal resistance.

Housing for the handicapped and elderly is protected under the provisions of the federal Fair Housing Act and the New Jersey Law Against Discrimination that prohibit discrimination on the basis of such factors. These civil rights laws require municipalities to make reasonable accommodations in their zoning for such housing, including amending local zoning ordinances or granting necessary use and bulk variances.

Fair Housing

Decisions by the federal courts in New Jersey have previously held that the federal Fair Housing Act protects nursing homes and community residences for Alzheimer sufferers. In Assisted Living Associates v. Moorestown, the federal district court held that this law also protects assisted living facilities. Assisted living facilities typically provide a small apartment for each resident, together with congregate dining and support for daily living activities. Although assisted living facilities require a certificate of need (CoN) from the New Jersey Department of Health and Senior Services, the number of CoNs is not capped and the CoN process is highly simplified and expedited.

The federal Fair Housing Act is a very powerful tool. The courts permit municipalities few justifications for refusing to make reasonable accommodations in their zoning ordinances, other than peril to public health or safety. Nor do they permit municipalities to defeat the remedy by adopting a new obstructive ordinance, as the state courts sometimes do under the so-called "time of decision" rule. The courts can order municipalities to actually issue development approvals and building permits.

Litigation over the next several years is likely to test how far the Fair Housing Act can be extended. Does it protect continuing care retirement communities or so-called multi-level facilities, even though the residents are healthy when they initially move in but the housing is expressly designed to anticipate that a substantial portion of the residents will ultimately be handicapped? Does it protect housing that is restricted to the elderly that, although not specially designed for the handicapped, is housing in which a substantial number of the residents will foreseeably become handicapped during the course of their residence? These questions must await further legal developments.

Inherently Beneficial

In addition to those anti-discrimination statutes, certain land uses are protected under so-called "inherently beneficial use" doctrine, a doctrine established by New Jersey's state courts. Zoning boards must grant use variances to permit construction of such uses, even where otherwise prohibited by local zoning, if on balance the public benefits outweigh the local detriments.

For example, in Sunrise, Inc. v. Zoning Board of Adjustment of Madison Township, the Appellate Division held that, in general, housing for the elderly is an inherently beneficial use of a high priority. It specifically ruled that assisted living facilities (including those operated for profit) are to be treated as inherently beneficial uses. It summarily rejected a wide variety of purported detriments which the local zoning board had found to outweigh the public benefits. Based upon this analysis, the Appellate Division reversed the decision of the trial court and ordered that the variance be granted.

Continuing Care Communities

In another inherently beneficial use case, TWC Realty Partnership v. Board of Adjustment of Edison Township, the Appellate Division ruled that a zoning board cannot refuse to hear a variance application for an inherently beneficial use on the grounds that the applicant should really seek a rezoning. Rather, the zoning board must hear and rule on the merits of the application, even if it believes that it has no jurisdiction. In the course of its decision, the Appellate Division upheld the ruling by the trial court that a continuing care retirement community is an inherently beneficial use that is entitled to protection under New Jersey law.

Because these types of housing are protected uses under state or federal law, they are often especially advantageous forms of development in municipalities that are hostile to residential development or on sites where high density residential development is prohibited by local ordinances.

Stephen M. Eisdorfer is also a partner within the Land Use Division of Hill Wallack. A Member of the Board of Directors of the New Jersey State Bar Association's Land Use Section, he concentrates his practice in land use litigation, including Mount Laurel litigation and litigation involving the civil rights statutes.