New Jersey Land Use Law

By: Michael J. Lipari, Esq.

In a decision just issued by the Appellate Division, the court held that if a trial court hearing a challenge to a planning board decision perceives a substantial question concerning the validity of the zoning ordinance under which the approval was sought, the court should join the governing body to the action and determine the validity of the zoning ordinance prior to hearing the merits of the board’s decision. (See Jackson Holdings, Inc. v. Jackson Township Planning Board.)

Continue reading "Challenges to Planning Board Decisions Get More Complex" »

Posted by Henry T. Chou, Esq. at 03:12 PM | Permalink | Comments (0) | TrackBacks (0)

By Henry T. Chou, Esq.

Both the Senate and Assembly have passed a bill (S917) that creates a 13-member Fort Monmouth Economic Revitalization Authority, which replaces the outgoing Fort Monmouth Economic Revitalization Planning Authority as the agency responsible for overseeing the redevelopment of the Army base that was ordered closed by a federal panel in 2005.

Continue reading "Legislature Passes Bill to Establish Fort Monmouth Economic Revitalization Authority" »

Posted by Henry T. Chou, Esq. at 04:32 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

Marking a significant victory for private property rights, the New Jersey Supreme Court has ruled in Klumpp v. Borough of Avalon that owners of beachfront property must be compensated for the taking of their property by a municipality nearly fifty years ago. The property, owned by Edward and Nancy Klumpp, was physically taken by Avalon for the construction of protective dunes after the nor'easter of 1962. It has been the subject of contentious litigation since 2004, when the Klumpps were denied permits to build a new home on the property. While the Supreme Court has ruled for the Klumpps, the case is not over, as it has been sent back to the trial court for a determination of the amount of compensation due to the Klumpps.

Continue reading "N.J. Supreme Court Rules Landowner Must Be Compensated in Beachfront Takings Case" »

Posted by Henry T. Chou, Esq. at 05:03 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

On June 10, 2010, the Senate passed S1, a bill that proposes to eliminate the New Jersey Council on Affordable Housing ("COAH") and implement a new, statewide affordable housing scheme. The bill, sponsored by Senator Raymond Lesniak, was previously approved by the Senate Economic Growth Committee with amendments on June 3, 2010 without any public testimony, much to the displeasure of numerous public interest groups opposed to the legislation. The bill now heads to the Assembly, where it will likely be posted for a full vote by the end of June.

Continue reading "Senate Passes Bill to Eliminate COAH and Revamp Affordable Housing Rules" »

Posted by Henry T. Chou, Esq. at 03:28 PM | Permalink | Comments (0) | TrackBacks (0)

By: Michael J. Lipari, Esq.

Governor Christie has unveiled his new housing reform proposal, which seeks to drastically change affordable housing policies that have been in place for decades. As promised, the Governor proposes to eliminate the Council on Affordable Housing (“COAH”) and limit State involvement in the affordable housing process. The proposal is generally consistent with the report issued in March by the Governor’s Affordable Housing Task Force.

Continue reading "Governor Christie Reveals Plan for Affordable Housing and COAH" »

Posted by Henry T. Chou, Esq. at 12:17 PM | Permalink | Comments (0) | TrackBacks (0)

By Henry T. Chou, Esq.

Marking a major victory for the development community, Governor Christie has signed into law a measure that abolishes the longstanding "Time of Decision" rule governing zoning determinations. The bill, which was passed by both houses of the Legislature earlier this year and is commonly referred to as the "Time of Application" bill, was signed by Governor Christie on May 5, 2010, and takes effect in one year. It will essentially lock in the zoning that is in effect at the time the development application is filed (with the exception noted below).

Continue reading "Governor Christie Signs "Time of Application" Bill Into Law" »

Posted by Henry T. Chou, Esq. at 10:10 AM | Permalink | Comments (0) | TrackBacks (0)

By: Michael J. Lipari, Esq.

In yet another move to ease the burden on environmentally friendly development in New Jersey, the legislature passed the bill known as S-921, which exempts solar panels from surfaces classified as impervious. One of the most fundamental land use restrictions in New Jersey concerns the amount of impervious coverage (e.g. buildings, pavement, decks and patios) permitted on any single project or property. It was previously unknown whether solar panels were pervious or impervious because the panels usually sit on brackets and are typically not flush on the ground or a building and therefore do not necessarily reduce or prevent absorption of stormwater into the land.

Continue reading "Solar Panels No longer Considered in Calculating Impervious Coverage" »

Posted by Henry T. Chou, Esq. at 01:21 PM | Permalink | Comments (0) | TrackBacks (0)

By Henry T. Chou, Esq.

Senators Jennifer Beck (R-Monmouth) and Raymond Lesniak (D-Union) have introduced a bill that proposes to create a 13-member Fort Monmouth Economic Revitalization Authority, which would replace the outgoing Fort Monmouth Economic Revitalization Planning Authority as the agency responsible for overseeing the redevelopment of the Army base that was ordered closed by a federal panel in 2005.

Continue reading "Legislation Introduced to Establish Fort Monmouth Economic Revitalization Authority" »

Posted by Henry T. Chou, Esq. at 11:23 AM | Permalink | Comments (0) | TrackBacks (0)

By: Stephen Eisdorfer, Esq.

The Commissioner of the New Jersey Department of Environmental Protection (NJDEP) has issued a highly anticipated administrative order, which creates new opportunities for property owners and builders to protect their rights to develop with public sanitary sewer service.

Continue reading "NJDEP Extends Deadline for Wastewater Management Plans" »

Posted by Henry T. Chou, Esq. at 03:59 PM | Permalink | Comments (0) | TrackBacks (0)

By: Michael J. Lipari, Esq.

The task force created by Governor Christie to examine and provide the Governor with recommendations on how to handle COAH and the future of affordable housing in New Jersey, has issued its findings and recommendations, which was published by the Governor’s office on March 23, 2010.

Continue reading "Affordable Housing Task Force Issues Report; Suggests 10% of All New Housing Be Deemed Affordable" »

Posted by Henry T. Chou, Esq. at 06:05 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

*Update: Both Houses of the Legislature have now passed this bill, which will become law if and when Governor Christie signs it.*

Committees of both houses of the New Jersey Legislature have now approved a proposed bill that would change New Jersey's longstanding "time of decision" rule, and the full Legislature is now poised to vote on the measure. On March 4, 2010, the Assembly Housing and Local Government Committee referred A-437 to the full Assembly. One month prior, on February 4, 2010, the Senate Community and Urban Affairs Committee referred its identical version of the bill, S-82, to the full Senate.

Continue reading "Legislature Primed to Nullify "Time of Decision" Rule" »

Posted by Henry T. Chou, Esq. at 09:18 PM | Permalink | Comments (0) | TrackBacks (0)

By Henry T. Chou, Esq.

The New Jersey NAACP has filed an ethics complaint against Senators Ray Lesniak (D-Union) and Christopher "Kip" Bateman (R-Somerset), alleging that the Senators' joint sponsorship of a new affordable housing bill that would, among other things, eliminate the New Jersey Council on Affordable Housing poses a conflict of interest because the Senators' respective firms would stand to prosper financially from the proposed legislation.

Continue reading "NAACP Files Ethics Complaint Against Senators Lesniak and Bateman For Sponsoring Affordable Housing Bill" »

Posted by Henry T. Chou, Esq. at 08:07 PM | Permalink | Comments (0) | TrackBacks (0)

By: Thomas F. Carroll, III, Esq.

On February 9, 2010, Governor Chris Christie issued an Executive Order staying proceedings of the Council on Affordable Housing (“COAH”) for 90 days, and creating a task force charged with devising a way to replace the COAH process. On February 19, 2010, the Appellate Division issued an order enjoining the halting of COAH proceedings, but allowing that task force to commence its work.

Continue reading "Court Enjoins Portion of Governor Christie's Executive Order Imposing Moratorium on COAH Proceedings" »

Posted by Henry T. Chou, Esq. at 02:24 PM | Permalink | Comments (0) | TrackBacks (0)

By: Michael J. Lipari, Esq.

Last week Governor Christie issued Executive Order 12 to stay COAH for 90 days, from “taking any further action to process applications for substantive certification or to take any other actions to implement [COAH’s] Third Round regulations.” The Executive Order also created the “Housing Opportunity Task Force” to provide the Governor with recommendations on how to handle COAH and the future of affordable housing in New Jersey.

Continue reading "Governor Christie Appoints Members to Housing Opportunity Task Force; COAH Endorses Executive Order 12" »

Posted by Henry T. Chou, Esq. at 08:49 PM | Permalink | Comments (0) | TrackBacks (0)

By : Henry T. Chou, Esq.

On February 9, 2010, Governor Chis Christie signed an executive order creating a five-member panel called the "Housing Opportunity Task Force" to undertake a review of the Fair Housing Act, the State Planning Act and the prior and current regulations of the Council on Affordable Housing (COAH). The executive order directs the Housing Opportunity Task Force to produce within 90 days a report containing findings and recommendations concerning the future of affordable housing in New Jersey.

Continue reading "Governor Christie Orders 90-Day Moratorium on COAH Proceedings" »

Posted by Henry T. Chou, Esq. at 05:34 PM | Permalink | Comments (0) | TrackBacks (0)

By Henry T. Chou, Esq.

Last week, State Senators Ray Lesniak (D-Union) and Kip Bateman (R-Somerset) introduced a bipartisan bill that proposes to abolish the New Jersey Council on Affordable Housing (COAH), and place all State authority over affordable housing issues within the jurisdiction of the State Planning Commission.

Continue reading "Legislators Introduce Bill to Abolish COAH" »

Posted by Henry T. Chou, Esq. at 03:58 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

Governor Christie has nominated Lori Grifa as the next Commissioner of the Department of Community Affairs (DCA). Grifa, a resident of Montclair, is currently a partner in the government and regulatory affairs group at Wolff Samson, and was previously a prosecutor in New York and Chief of Staff to former New Jersey Attorney General David Samson. Ms. Grifa is subject to confirmation by the New Jersey Senate.

Continue reading "Christie Nominates New DCA Commissioner" »

Posted by Henry T. Chou, Esq. at 03:19 PM | Permalink | Comments (0) | TrackBacks (0)

By Michael J. Lipari, Esq.

In his last full day in office, ex-Governor Jon Corzine signed legislative bill A-4347 that extends all permits and approvals that were subject to the Permit Extension Act of 2008 (“PEA”) through 2012. Corzine did not sign legislative bill A-4345 that would have extended the requirement of wastewater management planning agencies to establish or update wastewater management plans, and extended validity of sewer service areas and wastewater service areas, until April 7, 2011.

Continue reading "Ex-Governor Corzine Acts (and Fails to Act) on Legislation in Final Full Day in Office" »

Posted by Henry T. Chou, Esq. at 02:09 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

Governor-Elect Chris Christie has selected Bob Martin, a retired utility consultant, as the next Commissioner of the New Jersey Department of Environmental Protection (DEP). Martin, formerly of the consulting firm Accenture LLP, served as Christie's energy and environmental policy advisor during last year's gubernatorial campaign.

Continue reading "Christie Picks New DEP Commissioner" »

Posted by Henry T. Chou, Esq. at 11:50 AM | Permalink | Comments (0) | TrackBacks (0)

By Michael J. Lipari, Esq.

The Legislature adopted A-4345 that extends the requirement of wastewater management planning agencies to establish or update wastewater management plans, and extends validity of sewer service areas and wastewater service areas, until April 7, 2011. The bill just needs the endorsement of the Governor to become law.

Continue reading "Bill to Delay Adoption of Wastewater Management Plan Awaits Governor’s Approval" »

Posted by Henry T. Chou, Esq. at 05:31 PM | Permalink | Comments (0) | TrackBacks (0)

By Michael J. Lipari, Esq.

As the economic recession continues, the New Jersey Legislature took another proactive and necessary measure to aid builders and developers struggling to save approvals for jobs that are not currently able to proceed. On January 11, 2010, both houses passed legislative bill A-4347 that extends certain permits and approvals that were subject to the Permit Extension Act of 2008 (“PEA”) through 2012.

Continue reading "Legislature Adopts Bill to extend the “Permit Extension Act of 2008”" »

Posted by Henry T. Chou, Esq. at 05:27 PM | Permalink | Comments (0) | TrackBacks (0)

By Henry T. Chou, Esq.

I'm just about ready for the New Jersey Builders Association's first-ever "Virtual Green" Convention. The Convention is completely virtual, held between January 12 and 14 at a digital convention center hosted by Digitell, Inc. Along with the other attendees, exhibitors and presenters, I'll be attending via my avatar, which is not as awesome as the avatars in the big-screen movie, but does sport its own set of custom duds.

Continue reading "Getting Ready for NJBA's "Virtual Green" Convention" »

Posted by Henry T. Chou, Esq. at 11:23 PM | Permalink | Comments (2) | TrackBacks (0)

By: Henry T. Chou, Esq.

Applying the principles recently ennunciated by the New Jersey Supreme Court in Toll Brothers, Inc. v. Board of Chosen Freeholders of Burlington County, the Appellate Division has determined that the terms of a developer's agreement did not bar a developer from requesting an extension of time to finish the construction of improvements associated with a development project in South Brunswick.

Continue reading "Court Reiterates Effect of Developer's Agreements" »

Posted by Henry T. Chou, Esq. at 10:34 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

The New Jersey Supreme Court has agreed to consider arguments that the Appellate Division improperly imposed new, subjective notice requirements on developers applying for local land use approvals. On November 13, 2009, the Court granted the petitions for certification filed by a developer, American Properties, and the Ewing Township Planning Board, seeking to challenge the Appellate Division's decision in GF Properties v. Ewing Township Planning Board.

Continue reading "New Jersey Supreme Court to Review New Notice Requirements for Land Use Applications Imposed by Appellate Division" »

Posted by Henry T. Chou, Esq. at 07:47 PM | Permalink | Comments (0) | TrackBacks (0)

By Henry T. Chou, Esq.

On December 30, 2009, the Sierra Club petitioned the United States Environmental Protection Agency (USEPA) to halt New Jersey's implementation of the Licensed Site Remediation Program, which would shift regulatory oversight of contaminated sites from the New Jersey Department of Environmental Protection (NJDEP) to private engineers licensed by a State Board.

Continue reading "Sierra Club Petitions EPA to Stop New Jersey From Using Private Companies to Oversee Cleanups" »

Posted by Henry T. Chou, Esq. at 08:22 PM | Permalink | Comments (0) | TrackBacks (0)

By Henry T. Chou, Esq.

Reaching way back in time to void a site plan approval granted by the Independence Township Planning Board in 1989, the Appellate Division held that municipal land use boards lack jurisdiction to condition approvals for non-permitted uses upon future rezonings or use variances.

Continue reading "Appellate Division Holds Planning Boards Cannot Condition Approval on Variance or Rezoning" »

Posted by Henry T. Chou, Esq. at 09:04 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

The Appellate Division has determined that the provision of the Pinelands Protection Act requiring Pinelands Commission approval of municipal ordinances is a substantive review procedure that renders an unapproved ordinance invalid as a matter of law.

Continue reading "Court Confirms Pinelands Commission's Ordinance Review Procedure as Indispensible" »

Posted by Henry T. Chou, Esq. at 02:30 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

On November 10, 2009, the Supreme Court granted certification in the matter of Klumpp v. Borough of Avalon, in order to consider the issue of whether owners of beachfront property lost ownership of their land by virtue of a municipality's claim in 2005 that it acquired the property by inverse condemnation forty-three years ago in 1962.

Continue reading "New Jersey Supreme Court Agrees to Hear Arguments in Bizarre Inverse Condemnation Case" »

Posted by Henry T. Chou, Esq. at 11:11 AM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

In a move that went largely unnoticed, the New Jersey Department of Environmental Protection (NJDEP) has adopted new wetlands mitigation rules that impose onerous and costly mitigation requirements for minor wetlands disturbances.

Continue reading "New Freshwater Wetlands Rules Impose Onerous Mitigation Requirements for Minor Disturbances" »

Posted by Henry T. Chou, Esq. at 02:38 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

For the past two years, a coalition of developers and business groups called the Smart Growth Economic Development Coalition has sought to effect significant changes in land use use and environmental regulatory laws aimed at keeping businesses in New Jersey and attacting new business. It now hopes to push through some of its legislation in the lame duck Legislative session after the gubernatorial election in November.

Continue reading "Development Coalition Seeks Overhaul of Land Use and Environmental Procedures" »

Posted by Henry T. Chou, Esq. at 01:40 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

Lawmakers have reacted swifty to the Appellate Division's recent decision that affordable housing must be accorded "inherently beneficial" status when proposed in use variance applications, even if a town has already otherwise met all affordable housing obligations assigned by the Council on Affordable Housing (COAH).

Continue reading "Legislators to Introduce Bill Overriding Court Decision on Affordable Housing" »

Posted by Henry T. Chou, Esq. at 01:49 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

On August 24, 2009, the Appellate Division issued a decision in Homes of Hope v. Eastampton Land Use Planning Board that makes it harder for municipal land use boards to deny use variance applications by developers seeking to build affordable housing. At issue in the lawsuit was whether a 100% affordable housing project proposed by a non-profit developer should have been considered an “inherently beneficial use” by the Eastampton Land Use Board when evaluating the developer’s use variance application.

Continue reading "Appellate Division Holds Affordable Housing Qualifies as "Inherently Beneficial Use" in Use Variance Applications" »

Posted by Henry T. Chou, Esq. at 01:21 PM | Permalink | Comments (1) | TrackBacks (0)

By: Henry T. Chou, Esq.

On August 12, 2009, the New Jersey Council on Affordable Housing (COAH) granted a six-month extension for fitfy-one towns in the Highlands region to file their affordable housing plans with COAH. The resolution extends the previous deadline of December 8, 2009 to June 8, 2010, which gives Highlands towns additional time to formulate their affordable housing plans based upon "build-out" analyses prepared by the New Jersey Highlands Council.

Continue reading "Highlands Towns Get Six Month Extension to File COAH Plans" »

Posted by Henry T. Chou, Esq. at 04:39 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

On August 3, 2009, Governor Corzine signed Executive Order #148, “freezing state approvals for development projects in any city or town where a mayor has been charged with public corruption but refuses to step down.” See http://www.state.nj.us/infobank/circular/eojsc148.htm.

Continue reading "Governor Corzine Freezes State Development Approvals in Towns Run By Mayors Charged With Corruption" »

Posted by Henry T. Chou, Esq. at 02:24 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

On July 27, 2009, Governor Corzine signed into law an 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.

Continue reading "Governor Corzine Signs Economic Stimulus Bill Eliminating 2.5% Non-Residential Development Fee" »

Posted by Henry T. Chou, Esq. at 02:25 PM | Permalink | Comments (1) | TrackBacks (0)