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.

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.

Plaintiffs submitted an application to the Ulster County Legislature seeking to include the two parcels of land in Ulster County Agricultural District No. 2 and filed an application with the Town Planning Board seeking approval of Plaintiffs’ proposed use of the property within the A-1.5 zoning district.

The Town Building Inspector

Although Plaintiffs had received prior confirmation from the Planning Board Chairperson that the proposed use was “agricultural” and therefore permissible, the Town’s Building Inspector visited the premises and issued a letter to the Planning Board concluding that although the winery is permissible, the retail sale of wine from the house would require a variance from the Zoning Board of Appeals since the Town Code only permits the retail sale of agricultural products grown on the same lot from a road stand. Despite this determination, the Building Inspector later changed his determination finding that the winery was not a permissible agricultural use, and therefore a variance must be obtained from the Zoning Board of Appeals (“ZBA”).

More bad news followed when Plaintiffs withdrew their application after being contacted by a representative of the Ulster County Legislature that suggested they withdraw their application due to public opposition despite a favorable recommendation from the Ulster County Agriculture and Farmland Protection Board. Plaintiffs believed the actions of Building Inspector were the result of undue influence by the Ulster County District Attorney for his own personal and economic reasons and that the action by the legislative representative was motivated by similar reasoning.

The ZBA

Plaintiffs appealed the determination of the Building Inspector to the ZBA. Plaintiffs submitted various documents in support of their appeal, including:

• a favorable letter from the New York State Commissioner of Agriculture and Markets confirming that the proposed use of the property constituted a “farm operation,”
• a determination from the Town Assessor that nine acres of Plaintiffs property would qualify for an agricultural exemption and
• a favorable interpretation from the Ulster County Planning Board.

Despite this documentation, the ZBA unanimously voted to deny Plaintiffs’ appeal. Plaintiffs challenged the ZBA’s decision in an Article 78 proceeding that was unsuccessful at both the Supreme Court and later at the Appellate Division, Third Department.

The Federal Court Filing

Plaintiffs subsequently commenced suit in federal court alleging numerous constitutional violations including:

• a violation of their federal right to petition the government for the redress of grievances,
• procedural and substantive due process violations and
• equal protection violations.

The Defendants, which were comprised of the Town of New Paltz, the Zoning Board of Appeals for the Town of New Paltz and its individual members, as well as Susan Zimet, a representative in the Ulster County Legislature and The County of Ulster, moved to dismiss Plantiffs’ complaint. In light of the legal principles set forth above, the Court granted Defendants’ motion to dismiss since Plaintiffs had failed to apply for a variance from the ZBA to permit the proposed winery and associated sale of wine.

The lesson to be learned from all of this is that just like grapes need to be ripened for wine, so too must claims be ripened prior to being adjudicated. No matter how doubtful a favorable decision may appear to be, in order for claims to be ripe for review, it is critical that a final decision first be obtained or that facts be plead to overcome the high burden of establishing that such an application would have been futile. Luckily for Plaintiffs, all is not lost. The Court dismissed their claims without prejudice to their right to refile in the event they are unsuccessful in their variance application.

Jennifer M. Porter is an Associate in the Gibbons Real Property and Environmental Department.