A bill which defines the term “inherently beneficial uses” under the Municipal Land Use Law passed without much fanfare in the closing hours of the 2009 summer legislative session. However, while the term “inherently beneficial use” was coined by the courts to identify development that deserved, from a public policy standpoint, a presumption that the development satisfies the positive criteria in connection with a “d” variance, the term was never defined by the legislature.
Provided the bill is signed by Governor Corzine, the definition of “inherently beneficial use” will now include wind, solar and photovoltaic facilities and structures, along with other recognized categories such as hospitals, schools, child care centers and group homes. Thus, the proposed new law provides a substantial leg up to certain “green power” development projects while leaving developments featuring other alternative energies, such as geothermal, cogeneration, hydropower and nuclear power, to continue to have to demonstrate the positive criteria for a “d” variance.
According to the Assembly floor statement to S1303:
This amendment would clarify that a “wind, solar or photovoltaic energy facility or structure” would be considered “inherently beneficial,” and therefore presumptively satisfy the positive criteria for the grant of a variance under subsection d. of N.J.S.A.40:55D-70, regardless of whether the facility or structure is a principal use, a part of the principal use, or an accessory use or structure.
The new definition that will appear at N.J.S.A. 40:55D-4 is:
“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.
For a copy of the bill, click here.
