New Jersey Zoning Watch

A law blog on New Jersey land use issues

Archive for September, 2008

The Road to [the Highlands] Is Paved With Good Intentions [and Foreclosures]

Posted by Phil Morin on September 30, 2008

Paul Mulshine, a columnist with the Star Ledger, wrote a particularly distressing piece in Tuesday’s paper regarding the plight of one homeowner and her losing battle with the state over burdensome environmental regulatory requirements as a result of enactment of the Highlands Act in 2004.

While it is important to focus on the macro issues of preserving water quality and open space that were the driving force for many regulators and legislators who supported the Act, one must not lose sight of the burden the Act has put upon many property owners who bought property intending for it to be the nest egg for their family and who ended up with a goose egg. Furthermore, funding sufficient to compensate landowners for their losses is not yet available and, given the current economic climate, will not likely be part of the state’s toolkit for some time.

Posted in Environmental Issues, Highlands, Legislation | Leave a Comment »

Environmental Groups, Legislature — Tilting At Windmills?

Posted by Phil Morin on September 29, 2008

An article from this weekend’s Courier Post highlights the fact that alternative energy sources, such as wind power, are not exactly receiving wide-spread acceptance under local zoning codes in New Jersey. According to the article, environmental organizations such as the Sierra Club are supporting legislation which would make substantial changes to state law to encourage the development of windmills and solar power.

The story refers to several legislative proposals, including a bill (S1303/A3062) pending in the legislature that would codify windmills and solar power facilities as “inherently beneficial uses” under the Municipal Land Use Law. Passage of this amendment to the MLUL would put such alternative energy facilities into a narrow classification of uses that satisfy the “positive criteria” in a “use” variance analysis. Applicants proposing such facilities would still have the burden of proving to a land use board that the proposed use does not have a negative or detrimental impact on the zoning plan for the community.

One significant bill (S1538/A2859) not mentioned in the story involves allowing the installation of solar and wind generation facilities on certain preserved farmlands and includes solar and wind energy generation on commercial farms as protected activities under the “Right to Farm Act.” This bill is pending in the Assembly after passing the Senate in June in a 36-0 vote, with 4 senators not voting.

Posted in Environmental Issues, Legislation | Leave a Comment »

Highlands Case Argued Before State Supreme Court

Posted by Phil Morin on September 27, 2008

The New Jersey Supreme Court heard oral argument this week to decide whether the Highlands Act unjustly barred development of a 93-acre lot retroactively without providing out just and proper compensation.

According to the Asbury Park Press:

Landowners OFC, LLC received approval from Washington Township to subdivide the lot to build 26 homes in 1999 — five years before the Highlands Act, which aims to limit development to protect drinking water supplies, became law. But an error in approving a water supply permit by a township official delayed the application, resulting in the project’s final approval missing the development deadline set under the 2004 law.

While the Justices reserved decision, at least two members of the panel seemed sympathetic to the plaintiff’s claims:

Looking at how OFC’s permits were botched and TDRs were not available to them, Associate Justice Barry T. Albin said the totality of failure resulted in “a developer caught into this intricate governmental mess.” Albin earlier, however, said that while the situation may be unequitable, the company’s due process rights were not necessarily violated.

“I don’t care where you lay the blame, you certainly can’t lay it at the foot of the plaintiff because they had nothing to do with it,” added Associate Justice Roberto Rivera-Soto.

For the full article, click here.

For the Appellate Division opinion in OFP, LLC v. State of New Jersey, finding that the plaintiff failed to pursue a hardship waiver and, thus, failed to exhaust its administrative remedies, click here.

Posted in Environmental Issues, Highlands, Legislation | Leave a Comment »

Appellate Division Rejects Request (Again) for COAH Special Master . . . But Could Still Appoint One

Posted by Phil Morin on September 26, 2008

On Friday, the Appellate Division rejected a request pending since last year from the Fair Share Housing Center to appoint a special master to to facilitate the drafting and implementation of regulations to guide the state’s affordable housing policy. The New Jersey State League of Municipalities had opposed the request for a special master. As a result, litigation challenging the latest iteration of the affordable housing regulations as arbitrary and not backed by sufficient factual data will continue. The appellate panel did not address a similar request for a special master which is being pursued by other litigants in their challenge to COAH’s regulations.

A press release from the Department of Community Affairs hailed the ruling as a “positive step forward”.

For more, information, read the Star Ledger article on nj.com here.

Note: This entry was corrected to clarify that the League has not requested the appointment of a special master, and has actively opposed such an appointment. We thank Michael Cerra, Senior Legislative Analyst at the League, for clarifying this point.

Posted in Affordable Housing | Leave a Comment »

COAH “Town Hall” Compliance Seminar Scheduled for October 16

Posted by Phil Morin on September 25, 2008

Phil Morin will participate in a “town hall” meeting in Summit, New Jersey, beginning at 7 p.m. on Thursday, October 16 entitled: “Mount Laurel 2008: What the overhaul of the state’s affordable housing law means to your municipality.”
The meeting is being hosted by the members of State Legislative District 21 – State Senator Tom Kean Jr., Assemblyman Eric Munoz, M.D., and Assemblyman Jon M. Bramnick – and will address the following topics relating to the Fair Housing Act and regulations promulgated by the Council on Affordable Housing:

Does your municipality have the information it needs to submit its 3rd Round Affordable Housing Plan to the Council on Affordable Housing (COAH) by December 31, 2008?

Do you understand the impact and the implications of the newly enacted A500 law and the newly-adopted amendments to the COAH regulations?

What impact will the pending legal challenges have on the COAH regulations?

The meeting will held in Council Chambers, City Hall in Summit, 512 Springfield Ave., on Thursday, October 16 from 7 p.m. to 8:30 p.m. to discuss the impact and the implementation of the new fair share housing requirements promulgated by the Department of Community Affairs.

The following panel will be on hand to provide information and to also answer your questions on the Council’s interpretation of the new rules and implications of A500 as well as related municipal planning and compliance issues:

Melissa J. Orsen, Esq., Chief Counsel – New Jersey Council on Affordable Housing

Philip J. Morin III, Esq., Special Counsel – Saul Ewing LLP, Zoning, Land Use and Approvals Practice Group

Jeff Janota, AICP, P.P., Senior Associate-Planning – Birdsall Engineering, Municipal Planning Services

Get the information you need to understand the recent changes to the Fair Housing Act and what it means to your community. The event is geared to elected and municipal officials, including zoning and planning board members, counsel and staffs, however, the forum is open to members of the business community and the public at large.

If you would like to attend, please RSVP by October 13 to one of the following legislative offices:

senkean@njleg.org (908) 232-3673
asmmunoz@njleg.org (908) 918-0414
asmbramnick@njleg.org (908) 232-2073

Posted in Affordable Housing | Leave a Comment »

COAH Votes to Adopt Rule Amendments; Waives Fee on Homeowners Affected By Fire, Flood

Posted by Phil Morin on September 22, 2008

At its meeting on Monday, September 22, the Council on Affordable Housing (“COAH”) voted to adopt several amendments to the affordable housing regulations which were proposed on May 6. These amendments will supplement the current “third round” rules, which were effective as of June 2. Notice of adoption will appear in the next edition of the New Jersey Register and the amendments will be effective as of October 20, 2008.

COAH also voted to propose a new regulation exempting homeowners from fees when rebuilding their home after a fire, flood or natural disaster. The Council also approved a waiver of an affordable housing development fee as a result of the destruction of a home in Franklin Township, an issue that had received substantial publicity and which prompted the proposed amendment.

The New Jersey League of Municipalities has provided a recent update regarding the status of the numerous legal challenges which have been filed opposing the regulations adopted in June which are pending before the appellate division. The League will seek, among other relief, a stay of the December 31, 2008 deadline for municipalities to submit their affordable housing plan to COAH.

One municipality has attempted to attack the regulations requiring the municipal obligation to provide affordable housing as an “unfunded mandate.” The Council on Local Mandates is the latest battleground in which a muncipality is challenging the regulations.

Posted in Affordable Housing | Leave a Comment »

Municipalities That Adopt Highlands Master Plan Will Likely Receive COAH Extension

Posted by Phil Morin on September 22, 2008

In an effort to encourage municipal buy-in to the Highlands master plan, the Highlands Council has agreed to negotiate extensions of up to one year for a municipality to submit its fair share housing plan under the newly-enacted regulations adopted by the Council on Affordable Housing – so long as the municipality adopts the recommendations contained within the Council’s master plan. However, the Department of Community Affairs has not yet approved the plan, which leaves Highlands municipalities in limbo with three months to the deadline for filing a third round plan.

According to the Daily Record:

The New Jersey Highlands Council on Thursday gave its executive director Eileen Swan the ability to negotiate an agreement with the state Council on Affordable Housing that would give communities that announce their intention to conform to the master plan an additional year to draw up new housing plans to meet their COAH obligations.

For the full article, click here.

However, the Star Ledger is reporting that DCA has not formally approved this agreement.

Posted in Affordable Housing, Highlands | Leave a Comment »

Permit Extension Act Signed By Governor

Posted by Phil Morin on September 9, 2008

The Permit Extension Act, which passed the legislature in June, was signed into law by Governor Corzine over the weekend without a public ceremony. The Act, which extends the life of certain permits and land use approvals in an uncertain economic climate, was championed by a wide range of smart growth advocates, the development community and numerous local elected officials. Although several changes were made during the committee process from its original form that limited the extention from 6 years to 2 years as well as the scope of the legislation, environmentalists waged an unsuccessful battle to have the Governor conditionally veto the legislation.

For the Star Ledger story, click here.

Posted in Environmental Issues, Legislation | Leave a Comment »

 
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