New Jersey Zoning Watch

A law blog on New Jersey land use issues

Archive for March, 2008

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Highlands Master Plan Adoption Postponed

Posted by Phil Morin on March 29, 2008

Faced with substantial criticism from builders, environmentalists, municipal leaders and private property owners, the Highlands Council voted this week to postpone adoption of the 383-page master plan until July.  The Council has scheduled seven work meetings prior to its anticipated vote.

According to the Record, the council’s executive director, Eileen Swan, has stated that “her staff is crafting clearer requirements and a checklist for local governments.”  Municipalities will have 15 months to amend local master plans to match the regional plan, following final approval.

Swan provided the council with a list of aspects that must be clarified. They include:

* a priority list of parcels to be preserved.

* the “transfer of development rights” program that would allow a landholder to profit from protected property by “selling” development potential for use in areas designated for growth.

* cluster development on farmlands.

* water supply deficit areas.

* a regional build-out analysis. “This is a critical piece,” Swan said of the analysis, being prepared by consultants. It is designed to show where additional development could take place and where existing development may be straining local water supplies and sewage-treatment capacity. Swan said that report is expected to be finished by June for council discussion.

A contentious issue for the council is creation of a priority list of private lands to be sent to the state Green Acres and farmland preservation programs to consider for buyouts.

For the full article in the Record, click here.

Posted in Environmental Issues, Highlands, Master Plan Review | Leave a Comment »

Failure to Comply With Mt. Laurel Obligation Results in Court-Mandated Density of Seventy-Six Units An Acre

Posted by Phil Morin on March 25, 2008

In Tuesday’s NJLJ Daily Decision Alert, I noticed the following case summary regarding a Mt. Laurel action in Bergen County Superior Court involving the Borough of Little Ferry.  While I look forward to digesting the full opinion and evaluating how the court’s analysis might apply in other Mt. Laurel actions, here is the condensed version, courtesy of Susan Clapp, the editor of the Daily Decision Alert, who consistently does an excellent job in preparing timely and succinct summaries of decisions rendered by New Jersey state and federal courts:

Nuckel, etc., et al. v. Borough of Little Ferry, et al., Law Div.–Bergen Cy. (Harris, J.S.C.) (16 pp.) This is an unusual Mt. Laurel builder’s remedy action insofar as it seeks to transform land that already enjoys high-density residential development into even higher density residential development.

Plaintiffs seek a judicial determination that they shall be entitled to replace a portion of their well-maintained garden apartment complex, consisting of 208 dwelling units at approximately twenty-five units per acre, with mid- and high-rise residential multi-family use (plus some ancillary retail use), consisting of 630 dwelling units at a density of approximately seventy-six dwellings per acre.

Given the circumstances of this case, even though they may be unique, the court concludes that plaintiffs have clearly qualified for the builder’s remedy sought in the litigation, because the defendant municipality has not demonstrated that: (1) the site is environmentally constrained; (2) construction of the proposed high-density residential development would represent bad planning; or (3) plaintiffs have prosecuted this action in bad faith.

This conclusion is fortified by the past failures of the municipality to achieve compliance with its fair share obligations. The defendant Little Ferry is required to re-zone the lands in question for residential multi-family use at a density of not less than seventy-six dwelling units per acre, and a maximum height limitation of eight stories. [Decision dated Mar. 18, 2008.]

To subscribe to the Daily Decision Alert, click here.

For a synopsis of the decision from the Record, click here.

For those with a little more time to spare, this is not the first time that Nuckel and the Borough have squared off in land use disputes.  See Donald Nuckel v. Borough of Little Ferry Planning Board (N.J. App. Div. Sept. 5, 2007); Donald Nuckel v. Borough of Little Ferry Planning Board (N.J. App. Div. Nov. 30, 2005).

Posted in Affordable Housing | Leave a Comment »

NJDEP Commissioner Creates Task Force To Review Permitting Process

Posted by Phil Morin on March 24, 2008

New Jersey Department of Environmental Protection Commissioner Lisa Jackson has issued an administrative order creating a 19-member task force drawing on top professionals and experts from the regulatory, environmental and development community to review the process by which development permits are prioritized, evaluated and issued by NJDEP.  The order comes on the heels of a draft report of a subcomittee formed by Department of Community Affairs Commissioner Joseph Doria that cited overregulation and delays in the permitting process as creating severe limitations on affordable housing development in New Jersey.  To view the NJDEP order, click here.

According to the Star Ledger:

Jackson’s three-page administrative order, signed on March 18, mixed praises for the state’s leadership in environmental protection with criticisms that “permitting programs that affect land use are not specifically designed to provide incentives for sustainable development projects.” She specifically cited affordable housing and ensuring economic growth in the state’s cities.

Jackson said the task force will have 120 days to review, among other things, how to better deal with permits for redevelopment of urban and older suburban areas that have “little or no impact” on health, safety or the environment. She also dismissed any link to the DCA report.

“There is no connection….The timing is unfortunate. I held it awhile to try to give breathing space,” Jackson said.

Jackson said she has spoken to DCA Commissioner Joseph Doria about affordable housing and permitting issues, adding that they are “inseparable.” But she added, “It is a false choice to say we must pick the environment or affordable housing. It’s a false choice, one that never has to be made.”

For a link to the full Star Ledger article, click here.

For a link to the Record article, click here.

Posted in Affordable Housing, Environmental Issues | Leave a Comment »

Judge Rules Vineland Master Plan Void: Ad-Hoc Committee Violated Open Public Meetings Law

Posted by Phil Morin on March 21, 2008

The Daily Journal is reporting that a Cumberland County trial court invalidated Vineland’s revised master plan and subsequent zoning changes as meetings involving an ad-hoc committee (which included four planning board members) appointed to provide suggestions on updating the master plan failed to comply with the Open Public Meetings Act. 

The court found that the failure to provide notice of the committee’s 16 work meetings between April 2005 and September 2006 was fatal to the process.

From the Daily Journal article:

Lakewood-based developer Rudy’s Airport LLC filed a lawsuit in late 2006 seeking to invalidate the master plan. . . . Rudy’s Airport LLC owns a 180-acre former landing strip off Weymouth Road near Willow Grove Lake. The company had proposed building about 360 age-restricted homes on the property. Current zoning rules limit the number of homes to one per 2.5 acres.

The developer alleged the city violated statewide land-use law by allowing the committee to create revisions to the master plan. Rudy’s Airport LLC also alleged the city violated the Open Public Meetings Act when it did not allow the public to attend its meetings. “The idea of the Open Public Meetings Act is, not only are you allowed to make public comments, but you’re allowed to observe the process,” argued the developer’s attorney, Kevin D. Sheehan of Parker McCay in Marlton. “If you can’t observe the process, you can’t be a meaningful participant when it’s time to make public comment.”

Vineland Planning Board Solicitor Frank DiDomenico argued public notice wasn’t required because the committee merely advised the Planning Board and didn’t make any decisions regarding the master plan.

The City has not yet determined whether it will seek a stay of the trial judge’s ruling and appeal or attempt to salvage the master plan through additional public hearings.

While I have not had the opportunity to review the judge’s ruling as it was an oral opinion from the bench, it appears that the judge broadly construed the OPMA in finding that an ad-hoc committee which contained less than a majority of planning board members was in violation of the public meeting notice requirements. 

The ruling, as reported, appears to be a “win” for property owners, developers, citizen activists and any other interested party who claims that key decisions on land use policy have been predetermined before the formal master plan public hearing process has begun.  From the municipal government perspective, it severely constrains a public entity from a process standpoint in that it appears to require that even advisory committees, with no power to take formal action or adopt policy, provide public notice of all meetings.   Here, while Vineland held seven public hearings prior to the master plan adoption, this was not enough to cure the apparent OPMA violation.

However, this may only be the first ruling in a long legal battle.  Before definitive conclusions can be drawn about the impact of this decision, the court’s opinion and the underlying legal rationale for the decision must be carefully examined.  Regardless of the basis for the decision, since this is an unreported decision of a trial court, board members, elected officials, property owners and activists need to put the ruling into context as it has no binding effect on other communities at this point.

For the full Daily Journal article, click here.

For the Press of Atlantic City article on this case, click here.

Editor’s Note:  It appears that the City will appeal the trial judge’s ruling.  See the March 25 Press of Atlantic City article here.

Posted in General, Master Plan Review, Rezoning | Leave a Comment »

Fort Monmouth Redevelopment Concept Plan Preview

Posted by Phil Morin on March 18, 2008

In a preview of the draft redevelopment concept plan for the 1,100 acre Fort Monmouth Army base, an Associated Press report states that high-tech research would continue to be an integral part of the base when it transitions to private development, with an anticipated $1 billion private investment in new housing, retail and recreational opportunities.   The plan was presented to reporters at a meeting on March 18.  It is scheduled to be unveiled at a public meeting at Monmouth Regional High School in Tinton Falls on Wednesday, March 19.

 According to the AP report:

As expected, the plan combines different uses. In general, heavy commercial uses would be closest to the Garden State Parkway, at the western edge of the fort. A combination of retail and housing is envisioned by the fort’s arched brick gates along bustling Route 35. A small hotel and spa is proposed at the eastern edge along the Shrewsbury River.

In between would be nearly 1,500 homes and apartments, with 25 percent of them set aside for low- and moderate-income residents, along with shopping and dining centers, offices and labs. All would be connected by about six miles of bike paths and walkways allowing for car-free commuting and living.

The fort’s 18-hole golf course would remain, but under a private developer who could build a 150-room hotel and conference center, according to the preliminary plan.

A public comment period will follow this presentation, with the draft plan to be finalized by June.  Following the comment period, it will be submitted to the U.S. Department of Housing and Urban Development in September.  Following plan approval, the Army will market the plan to developers, according to the AP report.

While implementation is years away as the base is phased out and the plan percolates though multiple layers of local, regional, state and federal agency review, it will be interesting to see how the final product, years from now, compares to the plan presented on Wednesday.

For the full article, click here.

For the Asbury Park Press article entitled “Fort Could Go Green,” click here.

Posted in Ft. Monmouth Redevelopment, Redevelopment | Leave a Comment »

Parsippany-based Greystone Complex Slated For State Auction

Posted by Phil Morin on March 18, 2008

The Star Ledger reports that the state intends to hold an auction this spring for the former Greystone Park Psychiatric Hospital and 130 acres surrounding it.  The 132-year old structure contains nearly a half million square feet of space and is laden with asbestos and will likely require substantial remedial work if renovated or demolished.  No minimum bid price has been established nor has a date for the auction been set.  

The Star Ledger states that:

The state Treasury Department, in a notice sent in January to Parsippany Mayor Michael Luther, suggested the “highest and best uses” for the excess Greystone property and structures would be residential development and open space. The land is zoned rural residential, a town official said.

. . . .

Representatives of Morris County, Parsippany, Morris Plains and Morris Township, who have interest in acquiring small pieces of the surplus Greystone land, have scheduled a meeting with treasury officials on Monday.

“We need more information on the potential impact of a sale,” Luther said.

Meanwhile, a small group of Morris County and Parsippany officials and historians have formed a committee to consider preservation of the structure.

While some officials are considering preservation of the building and grounds, the cost may be prohibitive and a large portion of the acreage may, ultimately, be available for development.  Morris County has already spent $8 million on the first phase of remediation and demolition for a 300 acre portion of the Greystone property it acquired for recreation and open space in 2001. For the full article, click here.

Posted in Environmental Issues, General, Redevelopment | Leave a Comment »

Change In NY Governor Could Determine Future for NJ . . . Nets?

Posted by Phil Morin on March 15, 2008

Editor’s Note/Update:  The March 16, 2008 Sunday Daily News reports that Governor Paterson will continue support of the Atlantic Yards/basketball arena in Brooklyn…. 

An interesting sideline to the change in the governorship in New York State is the strong anti-eminent domain policy that Lt. Governor David Paterson adopted as a member of the state legislature.  As a result, several economic development projects across the Hudson, including the Atlantic Yards project in Brooklyn, which is slated to be the home of the New Jersey Nets in 2011, “could be derailed or delayed,” according to the New York Sun. 

While Paterson was a state senator, he called for a statewide moratorium on the use of eminent domain. 

As reported in the Sun on March 14:

Mr. Paterson said a decision handed down by the Supreme Court in the Kelo v. City of New London case could lead to a “gold rush” of eminent domain use across the state, The New York Sun reported at the time. He said he would gather legislators and introduce legislation to impose a moratorium on its use.

“He stood with me and proposed some legislation and I am very hopeful that the lieutenant governor and soon-to-be governor will honor his commitment and will either issue a moratorium or review the abuse of eminent domain across New York City,” [City Council Member Letitia] James said yesterday in an interview.

Ms. James’s district is in Brooklyn, and she opposes developer Bruce Ratner’s $4 billion Atlantic Yards project near downtown Brooklyn, which would require use of eminent domain. 

Thus, there is the possibility that if Governor Paterson remains consistent with his prior position, that the Atlantic Yards project, already delayed by lawsuits, environmental reviews and other impediments, could be blocked.  In turn, the question must be asked, particularly in light of recent public debate over whether the Prudential Center in Newark and Izod Center in East Rutherford can co-exist, whether this will have any impact on future development at the Meadowlands Complex or raise the potential of the Nets moving to Newark if the Atlantic Yards project falls through.

Mr. Ratner is planning to build a basketball arena and 16 mostly residential towers on 22 acres in Prospect Heights. The plans would remake the low-rise neighborhood with 8 million square feet of development, including more than 6,000 apartments, “affordable” housing, and office and retail space in a complex designed by architect Frank Gehry.

Perhaps the new New York Governor can reconcile his prior views with the broader economic development goals of New York City Mayor Bloomberg and others in the city and the state, perhaps not.  One thing is certain; the impact of how New York approaches eminent domain will be felt in New Jersey, regardless.

Posted in Eminent Domain, General | Leave a Comment »

Roberts Introduces Legislation Eliminating RCAs, Increasing Commercial Development Fees; Environmentalists Respond to DCA Draft Report

Posted by Phil Morin on March 13, 2008

Assembly Speaker Joseph Roberts (D-Camden) announced the introduction of a bill on March 13 which will substantially impact current affordable housing legislation.  Chief among the reforms is an elimination of Regional Contribution Agreements or “RCAs”, which Roberts has advocated for several months both in the press and behind the scenes.  For a copy of the Speaker’s press release on the bill, A-500, click here.

According to a Star Ledger article:

The “central element” of his plan would eliminate a program that allows towns to pay poorer communities — mainly cities and older suburbs — that agree to use the money for affordable housing.

Under the deals known as RCAs, for “regional contribution agreements,” cities get much-needed cash while other towns are spared up to half their obligation as they comply with court rulings that declared even the richest communities must provide affordable housing for poorer residents.

“I have felt for a long period of time that it is poor public policy and has resulted in a concentration of poverty in New Jersey’s urban areas,” Roberts said.

To replace the money that wealthy towns send to cities each year for affordable housing, Roberts wants to take $20 million from the $380 million in annual state realty tax revenue and use it for urban housing through a new Affordable Housing Trust Fund.

Roberts says the trust fund can also be beefed up by increasing commercial development fees earmarked for housing to 2.5 percent, from 2 percent. He also wants to tap money that towns have raised from these fees but have not used on housing. Roberts estimates towns are now sitting on $160 million, and his bill would force them to “use it” on housing deals within four years or “lose it” to the state trust fund.

The elimination of RCAs may have a particularly dramatic impact on built-out communities which will find it nearly impossible to reach the number of affordable housing units allocated to them under proposed regulations issued by the Council on Affordable Housing.  However, the legislation includes a requirement that any new rule or regulation consider the impact it will have on the affordablity and availability of housing.  Additionally, the proposed increase in development fees (which will be based upon final equalized assessed value of land and improvements) creates yet another substantial cost to be borne by the commercial development community.  Other changes include raising the median income of a family that will qualify for affordable housing from $63,000 for a family of four to approximately $87,000.

One message that appears to be underlying Roberts’ proposal is the understanding that recently-enacted environmental regulations have had a negative impact on development of affordable housing.  According to the Ledger, “Roberts said that while he doesn’t want to “undo” environmental rules, ‘we need to go into these regulations with eyes open and realize that decisions made by a variety of different state departments affect whether or not we can build affordable housing.’”

We will be tracking the progress of this legislation.  A copy of A-500 will be available at the Legislature’s home page here.  For the full Star Ledger story by Tom Hester, click here.

As a follow-up to my prior blog entry regarding the draft report of the Department of Community Affairs Land Use and Planning Subcommittee, here is the enviros response, courtesy of the Asbury Park Press. 

Posted in Affordable Housing, Environmental Issues, Legislation | Leave a Comment »

Draft DCA Report Says DEP Rules Hinder Affordable Housing

Posted by Phil Morin on March 12, 2008

A draft report from the Land Use and Planning Subcommittee of the Department of Community Affairs concludes that the Department of Environmental Protection’s aggressive regulation of land use limits realistic opportunities for construction of affordable housing in suburban and rural communities.  The report charges that ”current environmental rules are skewed against builders,” according to an article in today’s Star Ledger. 

 ”The … barriers prevent a predictable and efficient land use system from existing, which in turn prevents the state from meeting its current and projected housing demand,” the report concludes.

As we reported on this blog in December, it appears that DCA and DEP are at odds over how to implement policies that meet Governor Corzine’s stated goal of 100,000 new affordable housing units over the next ten years.  DCA Commissioner Joseph Doria has called for a relaxation of strict DEP rules where opportunities for construction of affordable housing are available.  According to the Star Ledger article:

The report suggests requiring state and local governments decide quickly when developers seek to build — and automatically to approve projects if no decision is made within 90 days. 

It calls for rewriting DEP rules to make them “flexible” and giving the state Planning Commission the power to override DEP rules and local laws. It would also prevent DEP from stopping construction within 300 feet of a waterway if the area was developed in the past, and allow sewer line construction in environmentally sensitive areas.

Not surprisingly, DEP Commissioner Lisa Jackson has taken an opposite view, as have environmental activists.  “Affordable housing must be done in an environmentally sensitive manner,” Jackson said. “I have heard a lot of people complain they can’t build on flood plains. They tell me it is the only land left. Building affordable housing there would be morally wrong.”

DCA Commissioner Doria stressed that the report was a draft for discussion purposes and that DEP input would be sought as DCA’s overall plan is developed as other subcommittees provide their input on state housing policy in the coming months.

For the full article from the Star Ledger, click here.

Posted in Affordable Housing, Environmental Issues | Leave a Comment »

Fort Monmouth Redevelopment Concept Plan To Be Unveiled on March 19

Posted by Phil Morin on March 11, 2008

On Wednesday, March 19, the Fort Monmouth Economic Rivitalization Planning Authority is set to present a preliminary concept plan for the redevelopment of Fort Monmouth, a 1,100 acre army base that lies within the municipal borders of Tinton Falls, Oceanport and Eatontown.  The base is scheduled for closure by 2011. 

This is the first major public presentation in the process to formulate a redevelopment plan for the base, which must be finalized by September 8, pursuant to federal law.  The base includes buildings which support high-tech operations which the mayor of Tinton Falls would like to see transitioned to the private sector in the redevelopment process.  The mayor of Eatontown also commented favorably on the creation of multiple housing options with a retail business at the base.

The presentation will be held at Monmouth Regional High School   One Norman J. Field Way, Tinton Falls, starting at 6:30 p.m.  A question and answer period will follow the presentation.

For more information, see the Asbury Park Press story here.

Posted in Ft. Monmouth Redevelopment, Redevelopment | Leave a Comment »

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