Real Property & Environmental Law Alert : New Jersey, New York, Pennsylvania & Delaware Lawyers & Attorneys for Real Estate Development & Environmental Law

Although this statute may seem clear on its face, it does raise some questions for land use attorneys and developers.

• First, what if a property satisfies the acreage and ownership requirements, does the sole use contemplated for the property need to be a renewable energy facility (i.e. a solar farm)?
• Second, can a renewable energy facility be deemed an accessory use or structure to a principal use that is pre-existing on the subject property?
• Third, does the renewable energy facility have to produce energy to a certain amount of users or can it be for a single user?

All of these questions remain unanswered as the development of renewable energy facilities in New Jersey remains in its infancy. This land use attorney foresees litigation over these unanswered questions on the horizon as local land use boards and zoning officials will have to make critical determinations on whether “use variances” are required despite the fact that the MLUL has been amended to facilitate the development of these types of projects.

Land use attorneys should be aware of this recent amendment to the MLUL because it supersedes municipal zoning laws which may not expressly permit renewable energy facilities in the zone where the subject property is located. Developers seeking out properties for their next solar project should always keep in mind that if a property satisfies the criteria set forth in N.J.S.A. 40:55D-66.11, the land use approval process may become a lot easier and possibly more resistant to challenges on an appeal of the approval by a third-party objector.

Jason R. Tuvel is an Associate in the Gibbons Real Property and Environmental Department.

Wal-Mart’s 2009 development application for the renovation of the existing store was approved by the Planning Board. Thereafter, an objecting third-party appealed the Planning Board’s decision to the Superior Court claiming that the approval was invalid because the applicant did not apply for, and the Planning Board did not grant, a bulk variance authorizing the pre-existing parking area setback non-conformity that would remain in existence at the site. The Superior Court upheld the Planning Board’s decision.

Judge Skillman’s opinion in Cortesini leaves no doubt that a subdivision or site plan approval may be challenged if an applicant fails to obtain a necessary variance. However, as the Court points out, the initial approvals that failed to properly identify and grant the parking area setback variance were not challenged on this issue within the 45-day period following publication of notice of the decision under New Jersey Court Rule 4:69-6.

The third-party objector attempted to circumvent the 45-day appeal period that had long ago lapsed on the 2001 and 2002 approvals by arguing that since Wal-Mart applied for amended site plan approval in 2009 the issue was re-opened. In support of such argument, the objector noted that Wal-Mart was required to obtain a variance authorizing the continuation of the non-conformity of its existing parking lot based on the parking area setback requirement.

The Court’s ultimate rejection of the objector’s argument is predicated on several key facts:

•  The location of the 46 new parking spaces proposed by Wal-Mart’s 2009 site plan application will not violate the parking area setback requirement;
• The existing parking spaces that fail to conform with the parking area setback requirement are all located a substantial distance from the parts of the store where the renovations authorized by the amended site plan approval will be constructed;
• In 2001, the Planning Board noted in its resolution of approval that the layout of the parking area was “consistent with good site design and layout, proper planning, and efficient land use utilization”; and
• The Planning Board’s resolution of approval in 2009 in connection with the development application supported the findings in the 2001 resolution of approval by stating that the existing parking area, including the nonconformity with the setback requirement is “an existing condition that is functioning well and will not have any detrimental impact to the zone plan.”

Based on these facts, the Court made the following conclusions of law:

• There is no basis for arguing that a variance is required because the improvements proposed are not within the vicinity of the parking area setback violation and therefore the existing non-conformity will not be enhanced or affected by the 2009 development application;
• The findings in the Planning Board’s 2001 and 2009 resolutions of approval lead the Court to infer that had the applicant applied for a variance for violating the parking area setback requirement, the Planning Board would have granted the variance; and
• The objector’s claim that a variance is required authorizing the continuation of the non-conformity of the existing parking lot with the parking area setback requirement constitutes a collateral attack on the 2001 and 2009 development approvals.

The outcome of the Cortesini case provides some clarity to developers and land use attorneys on the grey area of how to deal with pre-existing non-conformities and variance conditions that should have been addressed by prior land use applications.

In this land use attorney’s view, the case stands for the proposition that, so long as the proposed development does not impact the pre-existing condition, the applicant need not apply and obtain a variance for its continuation. However, it would be prudent to ensure that the record at the land use board level clearly covers this point through expert witness testimony. Doing so will allow a court reviewing the record de novo to have factual evidence to support a determination that a variance was not required in connection with the new application.

What should a developer take away from this case? - The importance of zoning due diligence. Zoning due diligence and the review of prior land use approvals will most likely uncover the existence of a pre-existing non-conforming condition. Such knowledge will facilitate not only the presentation of a new land use application, but can be significant in negotiating the value of the subject property because a pre-existing non-conformity can have a negative impact on future development.

Jason R. Tuvel is an Associate in the Gibbons Real Property and Environmental Department.

Turns out there were two Notices. Berwind published the first notice and the second, later Notice, was published by the Township. Problem was the Township only advised the Citizens of the later, Township publication date. As a result, based on Berwind’s earlier publication date, they filed their appeal six days past the appeal period and into the period of repose. Apparently, no one read the “official” newspaper.

Berwind argued that it is entitled to repose as of the 46th day, because not only did it publish first, it also followed the guidance provided in the 2004 Appellate Division opinion of Cohen v. Thoft by promptly e-mailing verification of the publication date to the Township. Berwind’s e-mail even calculated the expiration date for appeal to assist the Township, only to be notified weeks later by a local newspaper, that its site plan approval had been challenged in Superior Court by Citizens. So much for developer self-help!

Hopewell Township did not explain the source of its misinformation and its counsel argued that municipalities cannot be burdened with the obligation to provide correct information concerning the appeal period where a developer publishes the Notice. After all, the objector could read the “official” newspaper and / or find the notice on-line. Thou shalt not rely on City Hall?

The Supreme Court can look to Cohen for some guidance, but not entirely. The Appellate Division in Cohen extended the appeal period three days in a purely private dispute between adjoining landowners due to what may have been perceived as misleading shenanigans by the developer. In Cohen, the developer obtained a variance and published a Notice of Decision the next day, but did not advise the municipality it had done so, and thereafter failed to correct the municipality when it indicated its subsequent intent to publish. The neighbor’s appeal was timely filed - but only under the second, municipal publication date.

The Appellate Division in Hopewell Citizens' was not persuaded by the Citizens arguments. The Appellate Division opinion, issued in January 2010, denied expansion of the appeal period, determining that enlargement was not justified because the issues barred by the expiration of the appeal period did not present important constitutional law or of public interest matters, or settle ex-parte or informal opinions of legal issues made by administrative officials. Counsel for Hopewell Citizens' strongly disagreed with the Appellate Division’s view and cited the Supreme Court to the extensive environmental issues that Citizens allege were given short shrift by a Planning Board that held 5 public hearings in 19 business days, allegedly to avoid new environmental regulations concerning a stream located on the property.

Whether the Supreme Court will disagree with both trial and appellate court decisions, which ruled against the requested six-day extension, is an open question. The ultimate result will inevitably compare the facts of Cohen to those in Hopewell Citizens' and determine whether a municipally misinformed, but public interest oriented, group of objectors can prevail at the expense of a diligent and fully compliant large project developer whose repose was so abruptly halted. Stay tuned.

Nancy A. Lottinville is Counsel to the Gibbons Real Property & Environmental Department.  Howard D. Geneslaw, a Director in the Gibbons Real Property & Environmental Department, assisted in the preparation of this post.

In analyzing the adequacy of the notice, the court stated that the mention of the building being located in an historic district amounted to “basic information that would help an ordinary person determine whether to object to the application or seek additional information.”

Another fact that the court relied upon in its decision was that the Planning Board of Hillsborough Township did not know that the building was located in a historic district until after taking action to approve the application for site plan approval to construct a 6,700 sq. ft. office building where a single family home built in 1897 currently exists. The Planning Board learned of the historic district issue only when debating the language of the approving resolution.

This case raises some very notable issues for land use attorneys and developers.

• First, must the zoning district and possibly a historic overlay district (or any overlay district for that matter) be included in the notice for the public hearing?
• Second, is it the applicant’s responsibility, either through its lawyer or design professional, to alert and educate the municipality of its own zoning information?

The key take-away for this case is that an applicant should always err on the side of caution when drafting its public notice. It is better to be overly inclusive than omit a piece of information that may come back to invalidate the entire proceeding after a time consuming and expensive litigation process. In addition, that over-inclusiveness may at times require the applicant to bring certain zoning issues to a land use board’s attention even where the board’s own professionals have failed to identify the issue. Doing this may save the applicant a lot of time and money in the long run, and could prevent an appeal by an objector.

Jason R. Tuvel is an Associate in the Gibbons Real Property and Environmental Department.

Campus had standing to bring the challenge the Board’s decision, said the Appellate Division, because as the owner of the land, it was directly affected by the denial of the variance, which if granted would run with the land. Regardless of whether Richman actually went forward with the project, the variance would be of great benefit to the land and to Campus, which could pursue the project on its own or with another developer. Conversely, the denial of the variance application harmed Campus by denying it this potential advantage.

The Appellate Division distinguished an earlier decision upon which the Board relied, Spinnaker Condominium Corp. v. Zoning Board of Sea Isle City, 357 N.J. Super. 105 (App. Div. 2003).  Spinnaker involved the denial of a variance to a telecommunications company that wanted to install an antennae on a building to address a gap in its coverage. In that case, the court held that the landowner did not have standing to appeal the denial because the variance sought was "unique to the applicant." The owner was not a telecommunications company, and so could not install the equipment on its own, and the variance sought required the board to consider whether the particular applicant really needed the variance to fill a coverage gap. Such factors were unique to the applicant, said the Campus Associates court, while the factors to be considered with Richman's application were specific to the property.

Campus Associates is good news for landowners. If a development partner chooses not to appeal an adverse municipal decision, then in most circumstances the landowner can pick up the torch and avoid the expense and delay of another application process.

Paul M. Hauge is an Associate in the Gibbons Real Property and Environmental Department.