Gibbons Law Alert

Gibbons Law Alert

Tagged: Application

Appellate Division Underscores Need for Findings, and Potentially More Testimony, to Approve Reduction of Variance

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Posted in Development/Redevelopment

On March 23, 2020

It’s a common scenario: after a series of public hearings, the scope of variance relief sought is reduced by the applicant or at the direction of the board, and the board then approves the application. A recent unreported opinion from New Jersey’s Appellate Division underscores that the resolution of approval must explain how and why the reduced scope of relief satisfies the variance criteria when the original proposal did not. This may require presentation of additional testimony by the applicant in support of the modifications. In 440 Company-Carriage House, LP v. Zoning Bd. of Adjustment for the Borough of Palisades Park, the Zoning Board of Adjustment for the Borough of Palisades Park (“Board”) granted three use variances (along with final site plan approval and certain bulk variance relief) to enable the construction of a 14-story, 121-unit, residential building. The relief granted by the Board represented a substantial reduction from what the applicant-developer had actually sought and presented testimony in support of over the course of a public hearing which extended for nine meetings. The developer had originally applied for use variances to permit a 17-story building, with 154 units. Rather than approving the project as presented, or denying it, the Board, acting on its own, voted to grant the variances with a reduction from 17...

NYSDEC Adopts Update to SEQR Regulations

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Posted in Development/Redevelopment / Environmental and Green Issues

On August 2, 2018

The New York State Department of Environmental Conservation (“DEC”) announced on June 28, 2018 that it had adopted a rulemaking package directed at updating its regulations relating to the State Environmental Quality Review (“SEQR”). The updates – DEC’s first to its SEQR regulations in more than two decades – are the product of an effort that began in February 2017 with the DEC’s filing of an initial notice and, following a series of public comment periods and subsequent revisions, culminated with its publication of the Final Generic Environmental Impact Statement (“FGEIS”) and revised text of the regulations. As revised, the regulations become effective on January 1, 2019 and apply to all actions for which a determination of significance has not been made by January 1, 2019. For projects that receive a determination of significance made prior to January 1, 2019, the existing SEQR regulations (which originally took effect in 1996) will continue to apply. Once effective, the revised regulations could have a significant impact on SEQR’s applicability to future development projects. The new regulations contemplate a number of mechanical changes to the environmental review process itself, including mandatory scoping of environmental impact statements, changes to the required content of environmental impact statements (“EIS”), as well as new requirements relating to the preparation and filing environmental impact...

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 Appellate Division Warns Planning Boards That Avoiding Controversy Risks Automatic Approval

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Posted in Development/Redevelopment

On August 30, 2017

When reviewing land use applications, “the rule of law is paramount and cannot be sidestepped to avoid deciding unpopular land use applications.” In issuing this reminder, the New Jersey Appellate Division recently affirmed the automatic approval of a site plan application that modified a planned unit development approval (PUD) dating back to 1997, underscoring the principle that land use applications are to be adjudicated on the merits in a timely fashion. In Shipyard Associates v. Hoboken Planning Board, et al., an unpublished decision, a developer was granted PUD approval in 1997 for a mixed use waterfront project that included residential high-rise apartment buildings, commercial retail space, a parking garage, and tennis courts. The developer constructed the project, except for the tennis facilities, and, in 2011, applied for site plan approval to build two additional residential towers instead of the tennis courts. Although the applicant was deemed complete in October 2011, the matter was not scheduled to be heard at a Planning Board meeting until approximately eight months later. In the interim, the City sued the developer seeking to enforce its perceived rights under the developer’s agreement for the 1997 PUD approval. Due to the filing of that lawsuit, when the Planning Board finally turned to the application in July 2012, the Planning Board refused to consider...

Mere Fact That Application Would Bring Development Closer Into Compliance With Zoning Code Insufficient to Warrant Grant of Site Plan Approval and Variance, N.J. Appellate Division Affirms

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Posted in Development/Redevelopment

On August 2, 2017

The New Jersey Appellate Division recently affirmed denial of an application for site plan approval and variance relief despite an applicant’s contention that the application’s issues identified by the Planning Board were too minor to justify denial of the application that would bring the subject property into conformity with the zoning code. Although unpublished and nonbinding, the decision confirms New Jersey courts’ broad deference to local boards in this state, making clear that if a land use board’s legitimate concerns are not addressed by an application, the mere fact that the application would bring a property into conformity with the local zoning code is insufficient to secure a variance under New Jersey’s Municipal Land Use Law. In World Wheat Foundation, Inc. v. Planning Board of the Township of Saddle River, et al., a church-based, not-for-profit organization, sought site plan approval and variance relief to convert a property that previously served as a residential facility for the elderly into a vocational school to assist Korean families with language and the arts. The previous facility ceased operations more than two years prior to the application. The property was situated in the Township’s Secondary Business Zone, in which the former residential facility was not a permitted use, but the proposed vocational school was permitted. The applicant also sought...

N.J. Appellate Division Affirms Default Approval of Substantially Complete Application for Redevelopment Project

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Posted in Development/Redevelopment

On July 7, 2017

The New Jersey Appellate Division recently affirmed a trial court’s grant of an automatic site plan approval for an 87-unit multi-family residential project with possible commercial space on the ground floor in Jersey City. The decision simultaneously sheds light on what it means for an application to be “complete” and when the Municipal Land Use Law’s proverbial 95-day stopwatch for the grant or denial of preliminary approval begins ticking. In Bright and Varick Urban Renewal Co. LLC v. Jersey City Planning Bd., after the City designated the subject property as an area in need of redevelopment and adopted a redevelopment plan, the designated redeveloper filed an application seeking site plan approval for the project. The City’s Principle Planner informed the redeveloper that it needed to submit an additional 12 outstanding items before the application would be considered. The redeveloper submitted 11 of the 12 outstanding items, and stated it would provide the twelfth item upon request. Thereafter, the Principle Planner confirmed in writing that the application was “substantially complete,” and requested the redeveloper make minor changes to its plans without mentioning the twelfth outstanding item. Two months later, the City had concerns about the density of the project, tabled the application for another approximately two months, and then ultimately denied the application due to the...

Time of Application Rule Protects Against Zoning Changes Only if an Application for Development Complies with All Ordinance Submission Requirements, New Jersey Appellate Court Rules

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Posted in Development/Redevelopment

On March 13, 2017

The New Jersey Appellate Division, in the published decision Dunbar Homes, Inc. v. The Zoning Board of Adjustment of the Township of Franklin, et al., recently declared what materials a developer must submit to a municipal land use board in order to constitute an “application for development” which triggers the protections of the Municipal Land Use Law’s (“MLUL”) “time of application” rule, N.J.S.A. 40:55D-10.5. Dunbar Homes establishes that an application is afforded the protections of the “time of application” rule from the time when an applicant submits an application form and all accompanying documents required by ordinance for approval. A formal finding that an application is “complete” by the municipality is not required. Thus, Dunbar Homes requires that the application essentially must be complete, even though that need has not yet been officially determined. 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 reverses 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,...

Funding Available for Site Remediation in New Jersey

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Posted in Development/Redevelopment

On December 27, 2013

On December 18, 2013, Susanne Peticolas, a Director in the Gibbons Real Property & Environmental Department, moderated a panel, “There May Be Money for Your Client for Site Remediation,” sponsored by the New Jersey Bar Association’s Environmental Law Section. The program focused on the Hazardous Discharge Site Remediation Fund (“HDSRF”). Michael Deely, Supervisor for NJDEP’s HDSRF program, cheered the audience by reporting that the long depleted fund once again has money for site remediation grants and loans.

Legislature Contemplates Extension of Moratorium on Statewide Non-Residential Development Fee

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Posted in Development/Redevelopment

On December 16, 2013

At the end of last week, the New Jersey State Senate (“Senate”) introduced Bill S3116 that proposes to continue the moratorium on the statewide non-residential development fee (the “Fee”) that expired on July 1, 2013. Since July 1, 2013, developers and land use attorneys have been in a state of flux with regard to whether the fee applies to development projects. If passed, this legislation would extend the moratorium to December 31, 2014.

Brand New Philadelphia Zoning Code Amended After Only 5 Months

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Posted in Development/Redevelopment

On January 31, 2013

Well that didn’t take long. Last August, following a four year process, the City of Philadelphia’s comprehensive new zoning code became law. Because of the law’s broad scope and sweeping changes, it was agreed that the Code would be revisited one year after its enactment to determine its effectiveness and to consider making any necessary changes. Yet, on January 24, 2013, a mere 5 months later ,the Philadelphia City Council, overriding a veto by Mayor Michael Nutter, passed Bill No. 120889 by a vote of 13-3 and amended the new Code, significantly complicating pre-hearing interaction between neighbors and developers which the Code was intended to streamline. While Council has enacted some minor “clean-up” amendments to the Code since August, this amendment could have substantial consequences.

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