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

The definition of “approvals” under the Permit Extension Act covers most permits issued by State rule or regulation, including, preliminary and final approvals for development applications under the New Jersey Municipal Land Use Law. S743 proposes that the definition of “approvals” be amended to include any “agreement with a municipality, county, municipal authority, sewerage authority, or other governmental authority for the use or reservation of sewerage capacity.”

S743 appears to be the bill that may amend the Permit Extension Act to help developers that need to wait a little longer for the economy to bounce back to save projects for which they have spent significant funds in obtaining approvals for development.

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

The questions that arise with nearly all new legislation are: (1) when will the law go into effect and (2) who will be required to adhere to the newly promulgated rules and regulations. The Bill as written will contain a four month grace period after its enactment. Therefore, a shopping center constructed prior to the expiration of the grace period will not be obligated to comply with the Bill. The Bill also exempts developers who have filed a site plan application with the applicable municipality prior to the expiration of the grace period. Developers should be aware that the site plan application need only be filed, not approved prior to the expiration of the grace period.

Non-compliance with the Bill will result in penalties to a shopping center owner in an amount of $500 for the first offense and $1000 for all subsequent offenses. The enforcing agency is intended at this time to be the New Jersey Division of Taxation who will have the power to file an action for injunction in the Superior Court to restrain the operations of a shopping center in the event the shopping center owner habitually violates the provisions of the Bill.

The Bill will require developers to evaluate the cost of such “electric vehicle charging stations,” which are defined as an “electric recharging point complete with electric vehicle supply equipment that is capable of providing level 2 charging for plug-in electric motor vehicles,” in connection with their overall budgets for their project. Level 2 equipment which provides charging through a 240 V, AC plug, can take 3 to 8 hours to reach a full charge, adding about 25 miles of range per hour of charging time, depending on the vehicle. Moreover, municipalities, professional planners and land use attorneys may be faced with the issue of whether the Bill impacts municipal parking ordinances and how they are interpreted by local land use boards. For example, if five (5%) of a shopping center’s parking area must be dedicated to EVs, it is conceivable that a municipality may require a developer to provide additional parking spaces for non-electric vehicles to compensate for the lost spaces.

Some other issues that may arise from the Bill are as follows:

• Developers will need to account for the charging stations in overall square footage of the property in terms of what can be utilized for retail space versus parking and ancillary uses/structures.
• Traffic experts may have to opine before local land use boards with respect to the impact the charging stations will have on trip generation at the property as vehicles that may not have entered the shopping center in the ordinary course may now enter the site for the purpose of charging their vehicle.
• The definition of “shopping center development” is fairly vague and simply states that the property be a commercial development with a building or series of buildings with 100 or more parking spaces. Depending on the definition of “commercial development” within a municipality’s zoning ordinance, an argument could be made that the Bill applies to more than just the ordinary retail shopping center, but also to office and/or other commercial developments that normally would not be categorized as a shopping center.

After introduction of the Bill by Senator Linda R. Greenstein (D) of New Jersey Legislative District 14 on March 21, 2011, the Bill was referred to the Senate Environment and Energy Committee. It will be interesting to see if the Bill will move forward as proposed, require amendments, or lack the requisite votes to be passed into law. However, it does seem to be part of a growing “green” trend. Google recently added the location of EV charging stations to its maps and is testing wireless charging stations at its own headquarters in California. The Department of Energy has created a data center on the locations for alternative fuels, including charging stations to serve the plug-in community.

* Photo courtesy of Paul Martin Eldridge - freedigitalphotos.net.

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

The Court began by stating that New Jersey takes “a liberal approach to standing to seek review of administrative actions.” The Court explicitly found that “[t]he competitors of a party who has received a governmental approval required for a proposed business operation also have standing to appeal the approval.” The Court concluded that the objecting gas station owner had standing both as a nearby property owner and as a business competitor.

The Court also concluded that the objector was an “interested person” because it had standing and the issue involved a public interest (i.e. the increase in traffic congestion and risk of accidents). As an “interested person,” the Court found that the Administrative Procedures Act permitted the objector to submit “data, views, or arguments” to the NJDOT for its consideration. Because the NJDOT rejected the objector’s submission, the Court overturned the grant of the permit and waiver and directed the NJDOT to reconsider Pilot’s application in light of the objector’s data, views, and arguments.

This case may have a wide reaching impact on the land use approval process. Besides making the already lengthy NJDOT permitting process even longer and more contentious, the decision and its holding with respect to the Administrative Procedures Act may open the door to making every administrative permitting process into an objecting business competitor’s playground. Although the ability to challenge the issuance of an NJDOT permit may not prevent a business competitor from opening , it will most certainly make the process of obtaining land use approvals longer and more expensive for the applicant.

Jennifer P. Smith is an Associate in the Gibbons Real Property & Environmental Department.

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.