New Jersey Land Use Law

By: Henry T. Chou, Esq.

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)

By: Henry T. Chou, Esq.

DCA Commissioner and COAH Chairman Joseph Doria resigned on July 23, 2009 after the FBI raided his home in Bayonne and his office in Trenton in connection with an ongoing corruption probe.

Continue reading "COAH Chairman Joseph Doria Resigns Amidst Corruption Probe" »

Posted by Henry T. Chou, Esq. at 01:42 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

On July 16, 2009, the Highlands Water Protection and Planning Council (Highlands Council) released its "buildout analysis" for 17 municipalities located in the Highlands "Planning Area." While the Highlands Act had designated the Planning Area as a "growth" region, the actual buildout analysis paints a far different picture for the 17 municipalities in Warren and Hunterdon County, including Allamuchy, Pohatcong, Bloomsbury, Califon, Glen Gardner, Milford, Clinton and Tewksbury Township.

Continue reading "Highlands Council Releases Buildout Analysis for 17 Towns in Planning Area" »

Posted by Henry T. Chou, Esq. at 11:05 AM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

On July 2, 2009, Governor Corzine signed into law a bill (S2577) that allows builders to apply to local planning boards 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 Signs Bill to Allow Conversion of 55+ Housing" »

Posted by Henry T. Chou, Esq. at 10:49 AM | Permalink | Comments (0) | TrackBacks (0)

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.

Continue reading "Legislature Passes Economic Stimulus Bill and Eliminates 2.5% Non-Residential Development Fee" »

Posted by Henry T. Chou, Esq. at 05:43 PM | Permalink | Comments (2) | TrackBacks (0)

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" »

Posted by Henry T. Chou, Esq. at 10:56 AM | Permalink | Comments (0) | TrackBacks (0)

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" »

Posted by Henry T. Chou, Esq. at 01:34 PM | Permalink | Comments (0) | TrackBacks (0)

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?" »

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

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" »

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

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).

Continue reading "Governor Corzine Signs Bill Allowing Private Professionals to Oversee Site Cleanups" »

Posted by Henry T. Chou, Esq. at 05:36 PM | Permalink | Comments (0) | TrackBacks (0)

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" »

Posted by Henry T. Chou, Esq. at 03:23 PM | Permalink | Comments (2) | TrackBacks (0)

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" »

Posted by Henry T. Chou, Esq. at 12:35 PM | Permalink | Comments (1) | TrackBacks (0)

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.

Continue reading "Council on Affordable Housing Finally Grants Substantive Certification to Municipalities" »

Posted by Henry T. Chou, Esq. at 05:57 PM | Permalink | Comments (0) | TrackBacks (0)

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" »

Posted by Henry T. Chou, Esq. at 12:06 PM | Permalink | Comments (1) | TrackBacks (0)

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).

Continue reading "Legislature Passes Bill Allowing Licensed Site Professionals to Oversee Site Cleanups" »

Posted by Henry T. Chou, Esq. at 04:33 PM | Permalink | Comments (0) | TrackBacks (0)

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.

Continue reading "Legislature Approves Bill Permitting Wind and Solar Facilities in Industrial Zones" »

Posted by Henry T. Chou, Esq. at 06:00 PM | Permalink | Comments (1) | TrackBacks (0)

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.

Continue reading "New Jersey Senate Proposes Delay of Affordable Housing Development Fee Until 2010" »

Posted by Henry T. Chou, Esq. at 02:20 PM | Permalink | Comments (2) | TrackBacks (0)

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.

Continue reading "Legislature Adopts Bill to Allow Conversion of 55+ Housing to Non-Age Restricted Housing" »

Posted by Henry T. Chou, Esq. at 02:35 PM | Permalink | Comments (0) | TrackBacks (0)