New Jersey Zoning Watch

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Governor Christie Signs “Time of Application” Legislation

Posted by Phil Morin on May 5, 2010

On Wednesday, May 5, Governor Chris Christie signed S-82 into law.  The new law amends the Municipal Land Use Law to abolish, except in limited circumstances, the “Time of Decision” rule adopted by the courts which had previously allowed municipalities to change zoning ordinances, including eliminating permitted uses, at any time prior to a final decision of a land use board.  The new law creates a “Time of Application” standard, under which an applicant may proceed before a land use board based upon the zoning ordinances in effect at the time of filing an application without fear that a subsequent ordinance adoption will scuttle their application.  Many municipal officials opposed the signing of this bill; however, it enjoyed widespread bipartisan support in both houses of the Legislature and the Governor had previously committed to signing some form of change to the “Time of Decision” rule during his campaign.

According to a statement from the Governor’s Office:

Governor Chris Christie today signed legislation to simplify and make more predictable regulations governing land-use development applications at the municipal level, encouraging development and lowering costs for New Jersey businesses and job creators.

S-82, commonly referred to as “time of application” or “time of decision” legislation, provides that a land-use development application will be governed by the municipal development regulations in effect at the time of the application.  Exceptions are provided for those rules related to health and public safety. 

The legislation does not guarantee approval of a land-use application, but instead allows for the application process to move forward without the unnecessary hurdle of constantly changing requirements while the application is pending.

“New Jersey’s businesses and entrepreneurs – the job creators of our state – invest considerable amounts of financial and human resources in navigating a vast landscape of rules and regulations at the state and local level,” said Governor Christie.  “Prior to the signing of this legislation, the system allowed for those rules to be changed in the middle of the process, even after an application has been submitted.  This legislation makes common sense changes to improve the application process and move New Jersey in the right direction of providing a friendlier environment for job creation, while keeping safeguards for public health and safety in place.”

Currently, regulations do not “lock-in” until preliminary approval is granted for an application, allowing municipalities to change the requirement of an application after its initial submission, resulting in a business that is investing in New Jersey having to start the costly, time-intensive application process over, or abandoning the project altogether.

Posted in Legislation, New Jersey Government, Rezoning | Leave a Comment »

Assembly Passes Time of Decision Bill

Posted by Phil Morin on March 16, 2010

As expected, the State Assembly passed A-437, the “Time of Decision” bill, amending the Municipal Land Use Law to codify a change to the judicially-created “time of decision” rule by a vote of 51-14-11 (for-against-abstain) with 4 members of the lower house not voting. 

The bill states that municipal development regulation in effect on the date of filing of an application for development will control the review and any determinations relating to the application.   As a result, any changes to local ordinances following the filing of an application, except ordinances relating to health and public safety, shall not apply to pending applications.

The bill (S-82/A-437) will now move to the Governor for consideration.  The Governor is expected to sign the bill.

Posted in Legislation, Rezoning | Leave a Comment »

Time Running Out on “Time of Decision” Rule?

Posted by Phil Morin on March 11, 2010

Time Running Out on Time of Decision Rule?

A bill (S-82) to amend the Municipal Land Use Law to change the judicially-created “time of decision” rule has passed the State Senate (27-7).  Passage of the bill is seen as a win for developers as it eviscerates a municipality’s ability to change zoning requirements in response to an application for development.  Critics, including the State League of Municipalities and environmental groups such as the Sierra Club, argue that municipalities should have the ability to update their zoning ordinances following the filing of an application as the zoning may be inconsistent with the municipality’s master plan or the impact of a proposed use or the density of the development may not have been contemplated when the zoning ordinance was originally enacted. 

The focus now moves on to the Assembly, where the lower house is expected to take up the bill (A-437) on Monday, March 15.

While Governor Chris Christie has not publicly expressed his support for the bill, it is expected that the Governor will sign the bill if it passes the Assembly.  The Governor, when questioned about the “time of decision” rule during the 2009 gubernatorial campaign, voiced his support for a legislative change to the current rule and enacted a similar “time of application” standard for agency approval and permits for the State of New Jersey through Executive Order No. 2.

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

Time of Decision Bill Up For Senate Vote on March 11

Posted by Phil Morin on March 8, 2010

The New Jersey State League of Municipalities issued an alert which states that the full Senate is scheduled to vote on the “Time of Decision” bill, S-82, at its session on Thursday, March 11.  As noted in an earlier post, the “time of decision” is a judicially-created rule which holds that land use boards are to apply the zoning ordinances in place as of the time the board’s decision is rendered.  The bill will change current law and require, except in limited circumstances, that land use boards apply the zoning requirements as of the time of filing of an application for development.

The Assembly version of the bill, A-437, has also passed committee and, according to the League, will likely be scheduled for a vote prior to the budget break in late March.

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Christie Energy Plan Would Have Land Use Impact

Posted by Phil Morin on July 8, 2009

Republican gubernatorial candidate Chris Christie unveiled his Energy Plan earlier this week with a strong emphasis on encouraging the manufacturing and installation of wind and solar technologies within New Jersey.   Under Christie’s plan, the manufacturing of wind turbines and photovoltaic equipment in New Jersey will be supported through substantial tax incentives, solar farms will be treated as a permitted use under the MLUL, installation of solar farms as part of a landfill closure plan will be mandated and the installation of solar technology on a portion of preserved farmland will be permitted.

Several of his proposals would make even the most environmentally conscious politicians ”green” with envy while still emphasizing job creation.

According to a release from the Christie campaign, Christie’s Energy Plan includes the following initiatives:

The “Choose New Jersey Energy” Campaign. A Christie Administration will leverage New Jersey’s skilled workforce, technology base, manufacturing base and port facilities to make New Jersey a leader in manufacturing renewable energy.  New Jersey will undergo a brand makeover as part of the “Choose New Jersey Energy” campaign.  Governor Christie will lead a campaign that will market and sell New Jersey’s resources and undeniable potential to energy producers, innovators and developers.

 Establish “Renew NJ” to consolidate all renewable energy manufacturing efforts.  As part of the New Jersey Partnership for Action, “Renew NJ” will focus exclusively on the promotion of New Jersey resources and the development of renewable energy manufacturing. The Christie Plan will move all economic development efforts related to renewable energy from the BPU, which is not in the business of growing jobs, to “Renew NJ.”  “Renew NJ” will serve as a one-stop shop for companies – working to promote the state, market to prospective energy manufacturers both at home and abroad, deliver grants, loans and other state incentives in an efficient and timely manner.

 Incentivize Energy Manufacturing with Tax Credits. In order to make New Jersey an attractive place to manufacture energy, the Christie Administration will offer a tax credit up to 100% of the corporate business taxes or the insurance premium tax for any wind turbine and manufacturing facility that locates in New Jersey.  The incentive will significantly erase the current disincentives in the state’s tax policy, and will be an important tool to lure manufactures to the state.

 Install Solar Farms on Every Landfill.  Considering there are currently over 800 active and closed landfills covering over 10,500 acres in our state, what better way to utilize this space more effectively than with solar farms.  The Christie Plan requires that all New Jersey landfills regulated by the NJ DEP be required to install solar farms as part of their closure plans and on-going maintenance permits.  New Jersey’s landfills represent hundreds of acres able to support significant solar capacity, and the Christie Administration will take advantage of it.

Encourage Solar Farms by Making it a Permitted Land Use. Solar applications should not have to seek use variances or zone changes.  A Christie Administration will make it easer for prospective solar developers to site and build these facilities. Removing the uncertainty and delays inherent in local land use approvals would greatly incent incentivize landowners and potential solar developers.

 New Jersey Farmland Isn’t Just for Agriculture. Keeping with New Jersey’s commitment to preserve and protect our natural resources, the Christie Plan will allow Permanently Preserved Farmland to use up to 20% for solar panel installation.

For a link to the Star Ledger article discussing the Christie Energy Plan, click here.

For a link to the Daily Record article on Chris Christie’s and Governor Jon Corzine’s same day visit to two different solar manufacturing plants, click here.

Posted in Environmental Issues, Green Legislation, Rezoning | Leave a Comment »

Governor Signs Age-Restricted Housing Bill

Posted by Phil Morin on July 3, 2009

On July 2, Governor Corzine signed into law the controversial bill which allows applicants who received land use approval for an age-restricted development to reapply to land use boards for relief from the age-restrictions. 

The law now includes several additional hurdles for developers to lift age-restrictions and reduces the time for an appeal of a denial of a conversion to 30 days from the board’s resolution as opposed to 45 days from publication of notice of the decision.

A press release from Assemblyman Louis Greenwald (D-Camden) details the highlights of the new law:

Greenwald stressed that no 55-and-over development will be eligible for conversion if even one individual has already purchased or put down a deposit on a unit. Age-restricted developments where residents have already moved into homes similarly will be prohibited from conversion.

As reported by the Star-Ledger on Feb. 15, 2009, New Jersey’s municipalities have approved an overabundance of 55-and-older age-restricted housing developments. Estimates suggest the oversupply of such age-restricted homes is between 15 to 20 years into the future, far outweighing current demand.

“Because of the supply glut in the age-restricted housing market, projects have stopped. Yet many young professionals – teachers, police officers and firefighters among them – are finding themselves increasingly unable to afford homes in the very communities they serve,” said Greenwald. “We must provide a limited and responsible avenue to build homes for the middle-class residents who need them while putting New Jerseyans back to work.”

Under the law, a developer seeking to convert an age-restricted community will be required to file an application with the local planning board or zoning board of adjustment that granted the initial approval of the development. Prior to issuing an amended approval for the conversion, the local board will be required to have received documentation from the developer demonstrating that the stringent site improvements and infrastructure requirements have been satisfied.

For the complete press release, click here.

Posted in Affordable Housing, Legislation, Rezoning | Leave a Comment »

Legislative Fix Sought For Saturated 55+ Housing Market

Posted by Phil Morin on February 15, 2009

An article in the Sunday Star Ledger by Nyier Abdou highlights how the combination of the downturn in the housing market coupled with the glut of age-restricted developments burdened with low occupancy (or stalled due to lack of financing) are forcing developers back to governing bodies and planning boards in the hope of lifting age-restrictions. Many municipalities are working with developers (either willingly or grudgingly) to eliminate the restrictions in exchange for creating additional on-site affordable housing or recreational improvements within the community.

According to the Ledger:

That leaves the state’s vast amount of age-restricted housing in limbo. [Real estate research firm President Jeffrey] Otteau estimates there is enough age-restricted housing built and in the pipeline to meet demand for the next 15 to 20 years. Developers, planners, and townships are taking a hard look at age-restricted developments on their books and asking: will it sell?

“This boom of 55-plus housing has run its course for now in New Jersey,” said Phil Morin, special counsel in the real estate department at the law firm of Saul Ewing in Newark, which has many builders as clients.

At least some lawmakers agree. Last week, identical bills were introduced in the state Assembly and Senate aimed at addressing the state’s glut of age-restricted housing. The proposed law offers incentives in the form of reduced Council on Affordable Housing obligations for towns that remove age restrictions on developments that have not yet been built.

The recognition that stalled development and the large inventory of vacant (or approved but unbuilt) 55+ housing hurts the economy has prompted a bipartisan team of legislators to introduce bills in the State Senate and Assembly (A-3772/S-2577) which eliminate the age-restrictions in exchange for meeting certain development standards and which further provide incentives for communities to agree to lifting the restrictions — such as reduced Council on Affordable Housing obligations for the municipality.

The Statement to the bill reads as follows:

This bill would allow for the conversion of age-restricted housing units, pending approval by the local planning or zoning board and/or the Smart Growth Ombudsman.

To be eligible for conversion, a developer must agree to set aside a percentage of the units in the development, not to exceed 20 percent, for the provision of affordable housing. These units would automatically count towards fulfilling a municipality’s affordable housing obligation and neither those affordable units nor market rate units within such a development would generate an additional growth share obligation.

The bill also provides that to be eligible for conversion, preliminary or final approval for the construction of the development must have been granted prior to the bill’s effective date. Additionally, the developer must not be holding any deposits for the sale of units within the community.

Under the bill, a developer seeking to convert an age-restricted community must file an application with the local planning board or zoning board of adjustment that granted initial approval of the age-restricted development as to which conversion is to be sought.

Prior to issuing an amended approval for such a converted development, the local board must receive documentation from a developer demonstrating that the following site improvement and infrastructure requirements have been met:

· the site meets parking standards established in the Residential Site Improvement Standards;

· the recreation improvements and other amenities have been revised, as needed;

· the water supply and sanitary sewer systems are adequate for the needs of the converted development;

· if additional water supply or sewer capacity is needed and the developer is unable to obtain it, the number of dwelling units has been reduced;

· if additional parking is needed, and the developer is unable to provide it, the number of dwelling units has been reduced; and

· if additional parking is provided and increases the amount of impervious cover by more than one percent, the storm water system calculations and improvements have been revised accordingly.

The bill also provides that a converted development must conform to applicable building codes, and requirements for, and limitations on, size and square footage imposed pursuant to a preliminary approval. Additionally, it is the intent of this bill that the layout of a subdivision or site plan should not ordinarily be revised other than to accommodate parking, recreational improvements, infrastructure enhancements, a reduction in the number of units, and to accommodate the affordable units as attached housing. Similarly, the size, height, footprint, number of bedrooms and square footage of buildings must not be increased, but may be decreased. However, the number of bedrooms for the affordable units must meet Uniform Housing Affordability Controls requirements.

Finally, the bill allows for appeals to the Smart Growth Ombudsman if local approval for a converted development is denied.

For a copy of A3772, click here: Age-Restricted Housing Conversion

For the full Star Ledger article (and not just the self-serving portion with my quote), click here.

Posted in Affordable Housing, General, Legislation, Rezoning | 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 »

Are Market Conditions, NIMBY Attitudes Leading to More Mt. Laurel Litigation?

Posted by Phil Morin on January 26, 2008

As developers contemplate a slowing housing market, NIMBY-ism continues to trump sound, constitutionally-mandated land use policy and New Jersey refocuses on its lack of affordable housing, will Mt. Laurel suits be on the rise?  While the Appellate Division in In the Matter of the Adoption of N.J.A.C. 5:94 and 5:95 by the New Jersey Council on Affordable Housing, provided for a stay on builder’s remedy lawsuits against municipalities “whose application for substantive certification is affected by the decision,” the stay apparently does not apply to municipalities who did not have substantive certification of a second round plan and who failed to file an application for substantive certification under the invalidated third round regulations.  

Thus, given that many municipalities failed to obtain substantive certification of a second round plan or file an application for the third round, it is a question worth pondering given the dynamics of an economic slowdown coupled with newly-introduced regulations from the Council on Affordable Housing (“COAH”) designed to implement the “third round” obligations of municipalities to provide constitutionally-mandated affordable housing which impose onerous requirements such as one affordable unit for every four newly-constructed market rate units.

The proposed regulations require a substantially greater contribution toward affordable housing by municipalities, particularly growing suburban and rural communities around the state, in contrast to the prior version of the third round rules.  Municipalities were informed of the key provisions of the new regulations and encouraged to adopt inclusionary zoning ordinances in a letter from COAH on December 24, 2007.

Two recent media reports involving municipalities in Union County, Roselle Park and Cranford - both communities which did not receive substantive certification of fair share affordable housing plans from COAH, which allows developers to proceed directly to litigation in Superior Court following good faith negotiations with the municipality rather than through an administrative proceeding before COAH – demonstrate that developers may be less willing to negotiate over an extended period of time in an uncertain market and will not be shy about using litigation to implement development plans which include an affordable housing component but which are alleged to be improperly denied or interminably delayed in the municipal review process.

While both cases involve similar claims by the plaintiff-developers that the municipalities have not complied with the mandate under the New Jersey Constitution to provide affordable housing and both involve designated redevelopment areas with adopted redevelopment plans, the cases appear to be about the form and density of the affordable housing provided as opposed to examples of deliberate exclusion.  Based upon media reports, the issue in the Roselle Park litigation seems to be over a disagreement with the type of housing.  The Borough’s plan contemplates for sale condominiums and retail uses for a former industrial site while the developer wants to built “luxury” apartments. 

In Cranford, the developer apparently worked with the municipality to develop a redevelopment plan and originally agreed upon a number of units which included a density bonus for “green” construction, but has attempted to renegotiate the terms of the plan based upon economic and market conditions.

While the Roselle Park case has proceeded past the initial motion phase and the court had referred the case to mediation, it appears that, based upon media reports, the municipality is firmly committed to fighting for its development plan.

In Cranford, undoubtedly, the first round of motions will deal with whether good faith negotiations ensued before the developer filed suit.  If the court finds that such negotiations took place, the Township may be in for a long and costly battle, given the fact that, following the promulgation of the third-round rules in 2004, the governing body never applied for substantive certification of a third round plan or enacted an approved growth share ordinance.

In an an environment where elected officials must balance their obligations to comply with the Fair Housing Act and the Mount Laurel I and Mount Laurel II mandates with the pressures of overzealous NIMBYs who use tactics like anonymous flyers or blog entries that warn their neighbors of “Section 8 housing” and rail against “our community” losing its “small town charm” and turning into “Elizabeth, Newark or Camden” while adding to the burden on schools, traffic, flooding and what ever other parade of horribles they can use to stoke the fears of suburban homeowners, it is no wonder that communities may now have to brace themselves for an uptick in Mt. Laurel litigation, brought on by a perfect storm of a slumping real estate market and a pattern of either indifference to or willful avoidance of constitutional mandates combined with political pandering to vocal anti-development groups.

For more information on Mt. Laurel litigation, the newly-proposed third-round COAH regulations or affordable housing issues in general, feel free to contact us at pmorin@saul.com

Posted in Affordable Housing, Redevelopment, Rezoning | Leave a Comment »

Seminar Alert – The Development Approval Process In NJ

Posted by Phil Morin on January 3, 2008

On Wednesday, January 9, 2008, Philip J. Morin III, Special Counsel in the Firm’s Real Estate Department, resident in our Newark office, will be on the faculty for this one-day Lorman Educational Services Seminar that will discuss land use law, environmental issues and the development approval process in New Jersey.   Panelists will address the newly-proposed affordable housing regulations, the state of redevelopment after Gallenthin v. Paulsboro, and look ahead to potential legislative action regarding Regional Contribution Agreements and other land use issues in 2008.

 Mr. Morin will present several lectures throughout the day, including “Overview of Development and Land Use Law,” “Land Use Procedures and the Public Hearing,” “Ethical Considerations” and “Recent Trends and Municipal Government Perspectives.”  Also on the faculty are Stephen A. Santola, Esq., Executive Vice President and General Counsel of Woodmont Properties; Brian McMorrow, P.E. of Bohler Engineering, PC and Paul Grygiel, AICP, P.P., of Phillips Preiss Shapiro Associates, Inc.

The seminar will take place in the Sheraton Atlantic City Convention Center Hotel from 9:00 a.m. to 4:30 p.m.  NY and PA CLE credit is available.

For for information and to register for this event, please click here.

Posted in Affordable Housing, Eminent Domain, Environmental Issues, General, Highlands, Legislation, Redevelopment, Rezoning | Leave a Comment »

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