This blog, maintained by Henry Chou, a partner in the land use practice group of Hill Wallack LLP, provides a clearinghouse of information and forum for open discussion of laws, regulations, court decisions and government policies and affairs that impact the use of land in New Jersey. It examines new trends affecting zoning and planning standards, affordable housing requirements, environmental regulations, eminent domain and redevelopment of property throughout the Garden State. Readers are welcome to post their opinions in the comment section of each topic.
By: Henry T. Chou, Esq.
In response to the State's recession woes, the Legislature has passed an omnibus economic stimulus bill (A-4048/S-2299) aimed at reinvigorating the real estate development industry through innovative tax incentives and fee moratoriums, among other measures.
By: Henry T. Chou, Esq.
In a unanimous decision styled New Jersey Shore Builders Association v. Jackson Township, the Supreme Court has affirmed the Appellate Division’s ruling that municipalities cannot require builders to set aside open space and recreation facilities or make monetary “in lieu” payments as a condition of receiving development approval under the Municipal Land Use Law (MLUL).
Continue reading "Supreme Court Ends Municipal Practice of Exacting Open Space From Homebuilders" »
By: Henry T. Chou, Esq.
After 18 months of negotiations, Senator Ronald Rice (D-Essex) and Assemblyman John Burzichelli (D-Gloucester) have introduced a compromise bill that proposes to maintain the government's ability to condemn property for redevelopment, while attempting to reign in past practices that have been deemed abusive.
Continue reading "Legislators Introduce New Eminent Domain Bill" »
By: Henry T. Chou, Esq.
Last summer, the New Jersey Department of Environmental Protection (NJDEP) changed its rules to reassign the responsibility of mapping public sewer service areas from local agencies to county governments. The new rules require counties to promptly approve and submit county-wide wastewater management plans (WMPs) - the plans that govern which properties may be serviced by public sewer - although NJDEP has indicated that it may grant extensions for certain counties.
Continue reading "What’s the Big Stink With DEP’s New Sewer Rules?" »
By Michael J. Lipari, Esq.
As developers and building professionals are aware, a request for a height variance can be granted by the planning board in certain circumstances and the zoning board of adjustment in others. One developer recently found out that a difference of one inch in the requested relief from the height limitation ordinance was enough to invalidate the entire approval and force the developer to start over in front the appropriate board.
Continue reading "An Inch Can Go a Long Way, Sometimes All the Way Back to the Drawing Board" »
By: Henry T. Chou, Esq.
In a highly anticipated move, Governor Corzine signed the "Licensed Site Remediation Professional" (LSRP) bill into law this morning. The legislation - based on a successful model developed by the State of Massachusetts - creates a 13-member board comprised of public and private representatives that licenses professionals to oversee site cleanups that are currently under the jurisdiction of New Jersey Department of Environmental Protection (NJDEP).
By: Henry T. Chou, Esq.
Apparently bowing to the pressure of mayors throughout the State, Governor Corzine has conditionally vetoed legislation that would have allowed builders to convert age-restricted (55+) residential developments to non-age restricted developments that would be open to persons of all ages.
Continue reading "Governor Corzine Conditionally Vetoes Housing Bill" »
By: Henry T. Chou, Esq.
Over a month ago, both Houses of the New Jersey Legislature passed a bill (A3772/S2577) that would allow certain approvals for age-restricted (55+) developments to be converted to approvals for non-age restricted developments, provided the builder meets certain conditions and agrees to provide a percentage of affordable housing as part of the development.
Continue reading "Possibility of school-age children (gasp!) threatens housing bill" »
By: Henry T. Chou, Esq.
Last week, the New Jersey Council on Affordable Housing (COAH) finally began granting substantive certification to municipalities for the "third round" compliance period concerning affordable housing obligations from 2008 to 2018. Substantive certification is COAH's determination that housing plans created by municipalities adequately address the need for affordable housing in those communities.
By: Henry T. Chou, Esq.
The State's goal of transitioning the public's reliance on fossil fuels to renewable energy sources came one step closer to reality when Governor Corzine signed Bill A1558/S2265 into law on March 31, 2009. The bill requires developers of 25 or more homes to offer new home buyers the option of installing solar panel systems. It also requires the Board of Public Utilities to adopt minimum standards of efficiency for solar panel systems installed by developers.
Continue reading "Governor Corzine Signs Bill to Encourage Solar Panel Use" »
By: Henry T. Chou, Esq.
In response to the massive backlog of contaminated sites in need of remediation, the New Jersey Legislature has passed a bill that would grant private consultants and engineers the authority oversee site cleanups in place of the New Jersey Department of Environmental Protection (NJDEP).
By: Henry T. Chou, Esq.
As you drive by the industrial warehouse district in your town, imagine for a minute that the large, drab buildings have been replaced with solar panel fields and windmills. As improbable as that may sound, the New Jersey Legislature has envisioned such a result for the State's suburban and urban areas.
By: Henry T. Chou, Esq.
On March 16, 2009, the New Jersey Senate approved an 18-month temporary moratorium on payments of affordable housing development fees made by commercial and industrial developers to municipalities. The fee - 2.5% of the equalized assessed value of non-residential development projects - was authorized as part of the "Roberts Bill" adopted in the summer of 2008. However, the dramtic economic downturn in late 2008 prompted the Governor to propose a temporary moratorium against such fees until the end of 2009.
By: Henry T. Chou, Esq.
On March 16, 2009, the New Jersey Assembly and Senate adopted a bill (A3772/S2577) that would allow certain approvals for age-restricted (55+) developments to be converted to approvals for non-age restricted developments. The bill would allow developers who have obtained approvals for age-restricted projects to apply to planning boards to remove the age-restriction, provided that the developer is not holding any deposits for the sale of age-restricted homes or has not already conveyed any such units.
By: Henry T. Chou, Esq.
In today’s depressed real estate market, certain products that were attractive as little as two years ago are no longer in demand. In most circumstances, economically rational builders who have approvals or zoning for such products cannot carry their undeveloped land indefinitely while hoping that the demand will improve some years down the line. In today’s climate of frequent regulatory changes, economic realities require builders to explore alternative strategies for turning a profit on their properties.
By: Henry T. Chou, Esq.
Earlier this month, the the Third Circuit Court of Appeals ruled that Toll Brothers, which held an option to purchase real estate in Readington Township, had standing to challenge the Township's rezoning of the property, even though Toll Brothers did not fall into the typical categories of parties with standing.
Continue reading "Third Circuit Holds That Option Purchaser Has Standing to Challenge Ordinance" »
Published in January 15, 2009 Special COAH Edition of New Jersey Builders Association Dimensions Newsletter
By Stephen Eisdorfer, Esq.
In a flurry of activity over the past several weeks, COAH has established timetables and procedures for municipalities to file housing plans. These new timetables and procedures create both potential opportunities and potential frustrations for builders.
Continue reading "Hurry Up and Wait: Seeking Rezonings Under COAH's New Rules" »
Published in December 2008 Issue of Builder/Architect Magazine, Greater New Jersey Edition
By: Thomas F. Carroll, III, Esq. and Michael J. Lipari, Esq.
Builders, architects, planners and designers see the increasing need to explore environmentally friendly or “green” elements of construction. But these efforts are sometimes halted by the cost of implementing green systems, the time required to keep up with new technologies, and the time and cost associated with learning about the new technologies. The dilemma of whether to invest in green building in New Jersey may soon be resolved, at least with regard to the use of solar power to generate electricity into new projects. Several initiatives have been introduced in the Legislature that, if passed, will require builders and developers to incorporate solar energy systems into their projects as a prerequisite to governmental approval. At first glance this may appear to be yet another barrier to achieving an economically feasible building project in New Jersey, but certain initiatives such as roof warranty funds and state and federal tax credits are also on the horizon, which may provide enough incentive for building professionals and property owners to “go green.“
Continue reading "New Legislation Governs "Green" Construction" »
By: Henry T. Chou, Esq.
By the end of the day on December 31, 2008, 234 out of 302 eligible municipalities had filed housing elements and fair share plans ("housing plans") with the New Jersey Council on Affordable Housing ("COAH"). By doing so, those municipalities maintained their immunity from builder's remedy lawsuits. With the exception of municipalities in the Highlands that were previously under COAH's jurisdiction, municipalities that have not filed housing plans with COAH are now vulnerable to builder's remedy lawsuits. In mid-December 2008, the New Jersey State League of Municipalities and several legislators requested COAH and Governor Corzine to grant an extension of the December 31 deadline, but the requests were denied.
By: Henry T. Chou, Esq.
In response to numerous public inquiries, the New Jersey Council on Affordable Housing ("COAH") posted a letter on its website on December 17, 2008, clarifying the scope of the scarce resource restraints it previously imposed upon on municipalities in the Highlands Region.
Continue reading "COAH Clarifies Scope of Highlands Scarce Resource Restraints" »
By Michael J. Lipari, Esq.
In a case styled Price v. Strategic Capital Partners, LLC, et al., approved for publication on December 16, 2008, the Appellate Division upheld a trial court determination that a zoning ordinance violates the Municipal Land Use Law if it prohibits a zoning board from hearing an application for use variance. The Court also stated that a density variance allowing a project with three-times the permitted density was closer to a change in zoning than it was to a variance.
By Michael J. Lipari, Esq.
The New Jersey Supreme Court upheld an Appellate Division decision that dismissed a challenge to the Highlands Water Protection and Planning Act, N.J.S.A. 13-20-1 et seq. The result of this decision, which is the first challenge to the Highlands Act to be heard by the Supreme Court, further stymies any chance of judicial invalidation of the Act. The opinion itself does not provide any additional reasons, but merely relies upon the August 10, 2007 opinion issued by the Appellate Division.
Continue reading "New Jersey Supreme Court Upholds Challenge to Highlands Act" »
By Henry T. Chou, Esq.
Wtih the closing of Fort Monmouth approaching in just over two years, the Fort Monmouth Economic Revitalization Planning Authority (FMERPA) moved promptly to adopt its "Fort Monmouth Revitalization Plan" on September 3, 2008. The Plan, which provides proposals for the reuse of the base, calls for various types of development, including market-rate and affordable housing.
By: Henry T. Chou, Esq.
On November 12, 2008, the New Jersey Council on Affordable Housing (COAH) issued a Resolution imposing scarce resource restraints, indefinitely barring development in Highlands towns that are within COAH’s jurisdiction, with the exception of single-family or duplex homes on existing lots, residential housing that includes a 20 percent set-aside for affordable housing, or projects that are exempt or have obtained a waiver under the Highlands Act. COAH’s stated purpose for the moratorium was to “preserve scarce land, water and sewer resources” that might be needed for the future development of affordable housing in the Highlands.
Published in November 2008 Edition of New Jersey Builders Association Dimensions Newsletter
By Thomas F. Carroll, III, Esq.
In a notice appearing in the October 6, 2008 edition of the New Jersey Register, the Highlands Council has unilaterally declared that no approvals in the Highlands Region are subject to the Permit Extension Act. This rather remarkable edict applies, in the opinion of the Highlands Council, to both the Highlands Preservation Area and the Highlands Planning Area.
By Henry T. Chou, Esq.
On September 22, 2008, COAH adopted a set of rule amendments affecting affordable housing development. The rule amendments concerning the so-called "third round" compliance period (2004-2018) represent a significant departure from COAH's previous "third round" policies, which allowed municipalities to "pass through" affordable housing obligations directly to builders without providing any real offsetting benefits such as increased densities. The new rule amendments require presumptive minimum densities and/or density bonuses for inclusionary developments (developments containing both market rate housing and lower income housing), with the required densities varying depending upon the applicable State Development and Redevelopment Plan (“State Plan”) planning area designation and other criteria.
Continue reading "COAH Adopts New Rules Changing Affordable Housing Standards and Obligations" »
By order dated October 6, 2008, the Appellate Division has denied a motion by the League of Municipalities to postpone the December 31, 2008 deadline for some 280 towns to file new housing plans with the New Jersey Council on Affordable Housing (COAH). Towns that are subject to this deadline and who fail to file with COAH by that date lose their immunity from exclusionary zoning litigation until they do file. Because these towns have an urgent need to prepare and adopt new housing plans over the next 10 weeks, this is an opportune time for property owners and builders to propose projects that include both residential and mixed use low and moderate income housing. Thomas F. Carroll, III, Esq. and Stephen Eisdorfer, Esq. of Hill Wallack represented the New Jersey Builders Association opposing the application by the League.
By: Henry T. Chou, Esq.
Last month, Governor Corzine approved the Highlands Regional Master Plan ("Highlands Plan") and issued an executive order to facilitate its implementation. The Highlands Plan was adopted by the Highlands Council under the auspices of the Highlands Water Protection and Planning Act, which was intended to limit development in the northwest portion of the state and to ensure protection of the State’s water resources. The Governor’s executive order emphasizes that the need to protect water quality in the Highlands region trumps even the serious affordable housing concerns in New Jersey.
by: Stephen M. Eisdorfer, Esq.
The decision by the United States Supreme Court in Kelo v. New London triggered a nationwide backlash against what were perceived as abuses of the governmental redevelopment and eminent domain powers. In New Jersey, unlike some other states, this backlash has not resulted in legislative restrictions on redevelopment. None of the four bills currently pending before the Legislature, A-492 (Burzichelli), S-559 (Sweeney), S-757 (Rice), and S-1020 (Weinberg), have yet been reported out of committee in the State Senate. The backlash has, however, generated significant incremental changes by the New Jersey state courts. This article summarizes some of those changes.
Published in August 2008 Issue of Builder/Architect Magazine, Greater New Jersey Edition
By Henry T. Chou, Esq.
The New Jersey Department of Environmental Protection (DEP) has adopted amendments to its regulations, scheduled for publication on July 7, 2008, that will reduce the availability of wastewater treatment service and increase the regulation of septic systems. While DEP claims that the rule amendments will improve water quality and protect environmentally sensitive areas, it appears that the only certain consequence of the rule amendments is economic hardship for counties, municipalities, property owners and developers.
By: Thomas F. Carroll, III, Esq.
The New Jersey Legislature has had a busy year passing laws of interest to the real estate development industries. The first such bill is the “Roberts bill” (also known as A-500), now signed into law by Governor Jon Corzine. The Roberts bill makes a number of important changes affecting lower income housing obligations as applied to residential and nonresidential developers and builders.
The second significant bill is the Permit Extension Act. That bill has been passed by both houses of the Legislature but, as of this writing, has not yet been signed into law by Governor Corzine. Assuming it is signed into law as expected, the Permit Extension Act will extend many permits and approvals for the period of time specified in the legislation. A summary of these important legislative developments follows.
Published in August 6, 2008 Issue of New Jersey Builders Association Dimensions Newsletter
By: Henry T. Chou, Esq.
On June 16, 2008, the New Jersey Department of Environmental Protection (DEP) published adopted rules that reclassify 686 miles of waterways in the State to “Category One” status. The rules affect portions (or all) of more than 15 major rivers, reservoirs and their streams and tributaries throughout 14 counties.
Continue reading "DEP Adopts New Restrictions on Development Near Waterways" »
The information on this website is not intended, and should not be used, as a substitute for consultation with legal counsel. Any questions regarding specific legal issues and legal counseling should be directed to info@hillwallack.com. Additional information about the content of this website should be directed to Henry T. Chou at (609) 734-4447 or by email: htc@hillwallack.com.