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Legislature Defines Inherently Beneficial Use to Include Wind, Solar and Photovoltaic Energy Facilities and Structures

On November 20, 2009, Governor Jon S. Corzine signed into law Senate Bill S1303 as P.L. 2009, ch. 146, which codifies the term 'inherently beneficial use,' a concept originally fashioned by the Supreme Court in Andrews v. Ocean Township Bd. of Adjustment, 30 N.J. 245 (1959) and, thereafter, expanded and refined by the judiciary over many years.  The new law, which amends Section 3.1 of the Municipal Land Use Law (L.1975, c.291, C.40:55D-4), defines inherently beneficial use to include, among other things, 'a wind, solar or photovoltaic energy facility or structure.'  This will undoubtedly make it easier to obtain approvals for and install these alternative energy facilities where they are not permitted under local zoning regulations and require a use variance.  However, the text of the amendment presents a number of issues of which property owners, developers and others should be aware.
 

First, strangely missing from the new statutory definition of inherently beneficial use is any mention of religious institutions, affordable housing or certain other uses that have been long recognized as being inherently beneficial.  Although the list of uses contained in the definition is expressly stated not to be exhaustive, the omission of uses traditionally viewed as being inherently beneficial is troubling and could open the door to a reexamination of their value and purpose by municipal agencies and the courts.  Additionally, it is unclear whether the term 'wind, solar or photovoltaic energy facility or structure' refers only to stand-alone facilities or to facilities that are accessory to (and situated on the same site as) other uses or structures, as well.  It also remains to be seen whether a wind, solar or photovoltaic energy facility that is connected to the grid and supplies excess energy to off-site users qualifies as inherently beneficial.

Full post as published by New Jersey Law Blog on December 08, 2009 (boomark / email).