Gibbons Law Alert

Gibbons Law Alert

Author: Cameron W. MacLeod

“Housing is Health Care”: New Jersey HMFA Launches Program for Supportive Housing Partnership with Hospitals

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Posted in Development/Redevelopment

On November 8, 2018

The New Jersey Housing and Mortgage Finance Agency (HMFA), in collaboration with the New Jersey Hospital Association, has announced a pilot subsidy program to promote investment by hospitals throughout New Jersey in affordable and supportive housing. The program was previously endorsed by the New Jersey Hospital Association’s Board of Trustees. Following a number of recent studies highlighting the interconnection between stable, safe, and affordable housing and maintaining a higher quality of life, HMFA created a partnership program for New Jersey’s hospitals and affordable housing developers to try and fill a notable void in supportive housing. Hospitals are encouraged to work with developers to target housing for special needs residents or users of frequent emergency room services. HMFA anticipates the projects would consist of 60-70 units and can include mixed-use space for doctors’ offices, clinics, or other community uses. Approximately ten of the units would be set aside for low-income households (50 percent of gross median income), and the remainder would be restricted to households of moderate income (80 percent of gross median income). The program, currently funded with $12 million, seeks to match funding contributions from hospitals up to $4 million to fund three or four projects in New Jersey. The program will include the four percent low-income housing tax credit as well. HMFA is seeking...

An Application for Development Must Include All Checklist Items for Protection of “Time of Application” Rule to Apply, New Jersey Supreme Court Says

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Posted in Development/Redevelopment

On June 20, 2018

The New Jersey Supreme Court ruled today, in a unanimous opinion in a case of first impression captioned Dunbar Homes, Inc. v. Zoning Board of Adjustment of the Township of Franklin, et al., that to receive the protection of the “time of application” rule, an application must comply with the definition of “application for development” in the Municipal Land Use Law (“MLUL”), meaning that it must include all of the items required by the submission checklist which the municipality has adopted by ordinance. This case constitutes the first time the Supreme Court has interpreted the “time of application” rule, and its decision will impact the review of development applications throughout the state. The MLUL’s “time of application” rule provides that the ordinances and regulations in effect “on the date of submission of an application for development” govern review of that application. This reversed the longstanding “time of decision” rule whereby municipalities could change the zoning regulations at any time prior to the approval of an application for development, even where the change was enacted during a public hearing process specifically for the purpose of derailing a pending application. Under the “time of application” rule, the date upon which “an application for development” was submitted for review is key to determining what ordinances apply to it...

New Jersey HMFA Announces 2018 Tax Credit Round – Applications Due July 24, 2018

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Posted in Development/Redevelopment

On March 8, 2018

The New Jersey Housing and Mortgage Finance Agency (HMFA) announced Tuesday that it is now accepting applications for federal low-income housing tax credits (“LIHTC”) for the development of family, senior, and supportive housing projects throughout New Jersey. This announcement relates to the competitive LIHTC, which provides a 9% tax credit as a mechanism of funding construction of affordable housing in New Jersey. HMFA has announced that there is a funding tranche of approximately $28 million dollars in LIHTC funding available. Applications for the family, senior, and supporting housing rounds are due July 24, 2018 at noon.

Casino Reinvestment Development Authority Releases Proposed Land Development Rules for Atlantic City Tourism District

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Posted in Development/Redevelopment

On October 9, 2017

The Casino Reinvestment Development Authority (“CRDA”) recently released for public comment its proposed land use regulations for the Tourism District within Atlantic City. CRDA oversees all land use planning within the Tourism District, which spans from the beaches and boardwalk of Atlantic City north to the Convention Center, and stretches from the Absecon Inlet south to Ventnor City. These rules are proposed to establish new procedural and substantive standards for applications for development being proposed within the Tourism District. The next public hearing on the proposed regulations is scheduled for October 10, 2017 at the Atlantic City Convention Center at 6:00 PM. Written comments may be submitted by November 17, 2017 to CRDA.

Update: U.S. Supreme Court Announces New Test for Defining “the Parcel” in a Regulatory Taking

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Posted in Development/Redevelopment

On June 30, 2017

On March 22, 2017, we blogged about the importance of the United States Supreme Court’s looming decision in Murr v. Wisconsin – a regulatory takings case that was poised to resolve a key question long left unanswered by the Court’s takings jurisprudence: how do you define the relevant parcel in determining a regulation’s impact on “the parcel as a whole?” On June 23, 2017, the Court issued its ruling, and in a 5-3 decision answered definitively that it depends. Sometimes a regulation may go so far as to effect a “taking” of one’s property. In determining when a regulation has gone so far, the Court has previously instructed that reviewing courts must consider the regulation’s interference with property rights “in the parcel as a whole.” But the precise boundaries of “the parcel” are not always clear and, in many cases, may prove to be dispositive of whether there was a taking at all. The Court described the problem in Keystone Bituminous Coal Assn. v. DeBenedictis, explaining that because the regulatory takings analysis requires a comparison between the value taken from the property to the value which remains, “one of the critical questions is determining how to define the unit of property whose value is to furnish the denominator.” In Murr, the Court was presented with a number...

Appellate Division Holds UHAC Regulations Preempt Local Code Provisions on Affordability Controls for New Developments

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Posted in Development/Redevelopment

On June 22, 2017

In an unpublished decision entitled Avalon Princeton, LLC v. Princeton et al., the Appellate Division has affirmed that certain state affordable housing regulations preempt pre-existing municipal ordinances, setting a period of affordability controls for “at least 30 years” on new construction. Although not precedential, this decision provides insight on how courts may view some of the regulatory framework, particularly regarding municipal versus state regulation of newly constructed affordable units, and potentially forecasts much more flexibility for municipalities in controlling their current and future stock of affordable housing. In order to assure that affordable housing units remain affordable for a period of time, municipalities have long required that properties that are affordable to low- and moderate-income families be encumbered with some form of restrictive covenant running with the land for both rental and owner-occupied properties. The length of term of these restrictions have varied, based on the municipality and the nature of the units, but typically ran for 30 years from the date of first occupancy, and traditionally have automatically expired after that period. Following the introduction of the Fair Housing Act, these standards varied as COAH’s regulations were refined and developed over the course of the various iterations of the First, Second, and Third Round Rules. In 2004, however, the Housing and Mortgage Finance Agency...

New Jersey Future Report: Changes to Low Income Housing Tax Credit Selection Criteria Change Locations of Affordable Housing Development

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Posted in Development/Redevelopment

On May 24, 2017

In 2013, the New Jersey Housing and Mortgage Finance Agency made significant changes to the Qualified Allocation Plan (QAP), putting in place caps on development in areas with significant concentrations of poverty and adding additional criteria to encourage development in areas that would grant low- and moderate-income families a better chance at greater economic opportunity. Specifically, these changes encouraged development in transit oriented districts and areas with ready access to public transit, as well as encouraging development in areas with high-quality, well performing schools. In a recent study, New Jersey Future has found that these changes to the QAP have effectively implemented a policy shift in moving a significant amount of affordable housing construction out of poverty-stricken areas and reallocating such construction to more suburban areas of the State. Prior to 2013, roughly half the tax credits awarded were for economically distressed areas; after the changes to the QAP, that allocation is down to approximately 20%. More projects are being awarded tax credits in suburban areas with transit access and quality schools due to these changes in statewide policy as announced in the QAP, and this trend will likely make the limited number of tax credits allocated to urban areas more competitive as well. Click here to read New Jersey Future’s summary of their report.

Clarifying How New Jersey Counts Prospective Need and Evaluating Competing Proposals for Builder’s Remedies

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Posted in Development/Redevelopment

On March 24, 2017

Determining the municipal fair share housing obligation has been the subject of litigation for the better part of 18 years, since the last valid set of regulations for the New Jersey Council on Affordable Housing expired in 1999. As we have previously blogged, the Supreme Court’s recent decision in In re Declaratory Judgment Actions Filed by Various Municipalities, County of Ocean, – N.J. – (2017) established that the constitutional obligation to provide realistic opportunities for the construction of affordable housing is cumulative, leaving only the question of how to calculate the need during two periods: one from 1999 to 2015, and one from 2015 to 2025. The Appellate Division recently released for publication an edited version of Judge Wolfson’s trial court opinion in In the Matter of the Application of the Township of South Brunswick for a Judgment of Compliance and Repose and Temporary Immunity from Mount Laurel Lawsuits, in an effort to provide further clarity on how to calculate prospective need during the period from 2015 to 2025. The opinion addresses two fundamental questions: (1) how shall a municipality calculate its constitutional fair share housing obligation, and (2) how to evaluate competing claims for so-called “builder’s remedy” relief from intervening developers. The decision addresses how municipalities should determine their fair share housing obligation, and which methodology...

What Parcel? SCOTUS Hears Arguments in Case Poised to Clarify the Court’s Regulatory Takings Jurisprudence

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Posted in Development/Redevelopment / Transactional Real Estate and Leasing

On March 22, 2017

The Supreme Court of the United States entertained arguments on Monday, March 20, 2017 in a case likely to fortify its Fifth Amendment regulatory takings jurisprudence. The case, Murr v. Wisconsin, is on appeal from Wisconsin’s high court and, when decided, should answer a question left open by the Court’s 1978 ruling in Penn Central Transportation Company v. City of New York. In Penn Central, the Court instructed that in determining whether a regulation has gone far enough to constitute a taking of private property, courts should not limit their analysis to the regulation’s effect on some discrete segment or portion of the subject property, but should instead consider the regulation’s interference with property rights “in the parcel as a whole.” The question of how reviewing courts should define that parcel, however, has gone unanswered for decades. Enter the Murr children, whose parents purchased two adjacent tracts of land along the St. Croix River in the early 1960s. The Murr parents built a cabin on the first lot and maintained title to it in the name of their business. The second lot, purchased afterwards, was kept in their name and remained largely undeveloped. In 1976, a county ordinance was passed establishing new minimum lot size requirements for properties in the area. While this ordinance contained an exception for...

New Jersey Supreme Court Decides “Gap Period” Affordable Housing Need is to be Included in Present Need, Returns Cases to Trial Courts

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Posted in Development/Redevelopment

On January 18, 2017

The Supreme Court of New Jersey today issued its opinion in In re Declaratory Judgment Actions Filed by Various Municipalities partially affirming the decision of the Appellate Division, but expanding the definition of “present need” to include affordable housing need as it arose during the period from 1999 through the present. This decision recognized that the constitutional obligation to provide realistic opportunities for the construction of affordable housing did not stop in 1999, but has continued ever since, and provides some guidance for trial courts in how to determine the scope of that need. In effect, this decision modifies the decision of the Appellate Division by requiring trial courts to take the gap period need into consideration.

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