Gibbons Law Alert

Gibbons Law Alert

Tagged: Municipal Land Use Law

Sweeping Affordable Housing Reform Signed Into Law in New Jersey

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Posted in Affordable Housing / Environmental and Green Issues / Transactional Real Estate and Leasing

On March 25, 2024

On March 20, 2024, Governor Phil Murphy signed what could be the most significant and impactful affordable housing reform legislation in New Jersey since the original enactment of the Fair Housing Act (FHA) in 1985 in A4/S50 (the “Law”). After the New Jersey Supreme Court declared the Council on Affordable Housing (COAH) “moribund” in 2015, municipalities and developers, as well as interested advocacy groups, have been engaged in constitutional compliance litigation in an attempt to determine how best to create realistic opportunities for the construction of affordable housing. These various cases resulted in a large number of settlements across the state, with some very public and prolonged litigation still pending.

NJDEP Unveils Resiliency Planning Toolkit

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Posted in Development/Redevelopment / Environmental Issues

On June 29, 2021

On February 2, 2021, Governor Phil Murphy signed P.L. 2021 c. 6, which requires municipalities to incorporate assessments of climate change hazards into Master Plan Land Use Elements adopted after its enactment. No doubt many municipal officials, faced with tight budgets and heavy obligations, greeted this news with trepidation. However, the New Jersey Department of Environmental Protection (NJDEP) has come to the rescue with an extensive and well-designed online toolkit. The launch of the toolkit was announced by NJDEP Commissioner Shawn LaTourette on June 10 at the New Jersey Planning and Redevelopment Conference. The toolkit provides detailed guidance to assist communities in developing and implementing public processes to assess local vulnerabilities and create strategies to address them. It provides step-by-step procedures for creating teams to engage local stakeholders in defining their vision and developing plans to gather data, assess vulnerabilities, and develop strategies. Each section of the toolkit provides useful training modules, prototype documents and templates, and links to critical informational resources. The final section assists in tracking progress and contains links to federal and state sites providing information on funding and financing options. The toolkit is comprehensive, flexible, and user-friendly. It will be invaluable to municipalities in meeting their statutory obligations. It also provides a valuable model for other states, regional planning agencies, and...

New Jersey Issues Regulations Governing the Conduct of Remote Public Meetings, Effective Immediately

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Posted in Zoning and Permitting

On October 9, 2020

The New Jersey Department of Community Affairs, Division of Local Government Services (“DCA”), has issued emergency regulations which, according to a recently issued notice, “establish standard protocols for remote public meetings held by a ‘local public body’ during a Governor-declared emergency, including minimum procedures to be followed to provide reasonable public notice and allowance for public input.” The DCA advises that the emergency regulations are presently in effect and have been concurrently proposed for permanent adoption in the upcoming October 19, 2020 New Jersey Register. Comments will be accepted through November 18, 2020. As we reported previously, soon after the declaration of the COVID-19 public health emergency and the issuance of Executive Order 107, which restricted public gatherings, most governing bodies, planning boards, zoning boards of adjustment, and other public bodies in New Jersey initially canceled their meetings. Then, gradually, many began meeting remotely, relying on both existing statutory authority and emergency legislation to facilitate the conduct of electronic meetings, enacted as P.L. 2020, ch. 11 and codified in the Open Public Meetings Act at N.J.S.A. 10:4-9.3, which provides that during a declared emergency, a local public body may, using communication or other electronic equipment, conduct a meeting and any public business to be conducted thereat; cause a meeting to be open to the public;...

New Jersey Issues Guidance to Assist Land Use Boards in Holding Electronic Meetings and Hearings

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Posted in Development/Redevelopment

On April 6, 2020

In the wake of Executive Order 103 declaring the COVID-19 public health emergency and Executive Order 107 concerning restrictions on public gatherings, most planning boards and zoning boards of adjustment in New Jersey cancelled their scheduled meetings and have since been evaluating how to resume meeting in a manner that complies with social distancing requirements and Executive Order 107. This has left applicants uncertain when and in what manner their applications for development will be considered and decided. Following enactment of emergency legislation to facilitate the conduct of electronic meetings, the New Jersey Department of Community Affairs, Division of Local Government Services, has issued guidance to specifically assist planning boards and zoning boards of adjustment with conducting public hearings electronically on applications for development. The guidance, titled “Planning Board and Zoning Board of Adjustments Operational Guidance – COVID-19: N.J.S.A. 40:55D-1, Recommendations for Land Use Public Meetings in New Jersey,” is a first step in assisting land use boards – some of which have been hesitant to begin holding “virtual” meetings – with the mechanics of arranging for and conducting electronic meetings and public hearings. The Municipal Land Use Law (MLUL) requires land use boards to hold meetings at least monthly. Such boards must meet as scheduled unless there is a lack of applications for development to...

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...

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...

Howard Geneslaw Argues Before NJ Supreme Court in Dunbar Homes on Behalf of NJ State Bar Association

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Posted in Development/Redevelopment

On May 1, 2018

On Monday, April 9, 2018, Howard D. Geneslaw, a Director in the Gibbons Real Property Department, argued before the Supreme Court of New Jersey on behalf of the New Jersey State Bar Association (“NJSBA”) as an amicus curiae in the matter of Dunbar Homes, Inc. v. Zoning Board of Adjustment of the Township of Franklin. The NJSBA was one of several amici involved in this case of first impression on the key question of when a submission to a municipal planning board is considered an “application for development” for purposes of being afforded protection under the “time of application” rule. The “time of application” rule provides that the zoning regulations which govern the review of an application for development are those in effect at the time it is submitted. The issue to be decided by the New Jersey Supreme Court centers on what constitutes submission of an application for development which allows the applicant to invoke the protection of the “time of application” rule. The Appellate Division, in a reported decision, ruled that protection is not available until an applicant submits all documents specified in the municipality’s application checklist adopted by ordinance, although the application need not have been deemed complete for protection to vest, but did not address what occurs when the checklist is...

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...

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