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.

The proposed definition incorporates many of the uses that the courts have specifically determined to be inherently beneficial such as hospitals, schools, child care centers and group homes, as well as extending the status to wind, solar or photovoltaic energy facilities. Specifically, the bill defines an “inherently beneficial use” as “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.” In addition, the most recent version of the bill defines “wind, solar, or photovoltaic energy facility” to mean, “a facility 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.”

The bill was passed by the Senate (31-1) on February 23, 2009, and is currently pending vote by the full Assembly. The Assembly amended the bill to make it clear that wind solar or photovoltaic energy facilities or structure would be considered inherently beneficial regardless of whether the facility or structure is a principal use, a part of the principal use, or an accessory use or structure. Consequently, even after an Assembly approval, the amended bill will have to go back to the Senate for another vote.

For a more detailed discussion of the inherently beneficial use variance standard see “Understanding Inherently Beneficial Uses”