January 1, 1900

by Stephen M. Eisdorfer and Henry T. Chou

You wish to develop a site of 100 acres or more. Should you seek general development plan ("GDP") approval prior to preliminary site plan or subdivision approval? Will GDP approval insulate you from future uncertainties in your application?

Since 1987, builders have had the option under the Municipal Land Use Law (MLUL) to seek GDP approval for developments on sites of 100 acres or more. Many municipal ordinances authorize GDP approvals on smaller developments, and some ordinances require a GDP application. A GDP is basically a set of conceptual plans submitted to the municipal planning board prior to any application for subdivision or site plan approval. Under the MLUL, once GDP approval is granted the builder has the right to develop the property in accordance with the GDP regardless of any subsequent changes in local ordinances or other local requirements. This right can extend for as long as 20 years.

The Rationale For GDP Ordinances

The Legislature provided for GDP approvals in reaction to the complexities of planned development ordinances. A planned development ordinance permits a variety of different possible uses and intensities of use within the zone. It permits the builder and the planning board to work out an acceptable combination and layout of uses. Because the application process in a large development may extend over many years, including approvals for various stages, builders feared that the very flexibility authorized by a planned development ordinance created the risk that the views of the local elected officials or the planning board might change during its course. This risk made it hard for builders to plan their finances accurately, to invest their own money, or to get loans. The Legislature sought to provide relief from this uncertainty by enabling the developer to secure approval for a GDP early in the process, which would fix the key components of the development, even if the municipal officials or planning board should later have a change of heart.

Advantages Of GDP Approvals

The opportunity to seek GDP approval offers the builder-especially the builder of a large project in a PUD zone-a number of advantages. The GDP can be very generalized. It need only set forth the general location of the various uses on the site, the permitted number of dwelling units, the amount of nonresidential floor space, the residential density, the nonresidential floor area ratio for the planned development, and a schedule for timing of the various sections of the development. It is relatively quick and inexpensive to prepare. It enables the developer to lock in the general parameters of the development early- perhaps before local opposition has had a chance to crystallize. It need not include the details that often become a lightning rod for local opposition, such as the location of dumpsters, the type of lighting, the architectural features of the buildings, or the like.

However, beyond these minimums the GDP can be very specific if the developer so chooses. By statute it may include any or all of the following elements: a circulation plan showing the general location and types of transportation facilities; an open space plan showing the general location of parks and other areas set aside for conservation or recreation; a utility plan indicating proposed sewage and water lines; a storm water management plan showing the proposed method of controlling storm water; an environmental inventory including a general description of the vegetation, soils, topography, geology, surface hydrology, climate, and cultural resources of the site, and the probable impact of development; a community facility plan indicating the scope and type of supporting facilities needed for the development; a housing plan outlining the number of units to be provided and fulfillment of any housing obligations; a local service plan indicating public services the applicant proposes to provide; a fiscal report describing the anticipated impact on municipal services; a proposed timing schedule for staggered development; and a municipal development agreement between the municipality and developer relating to the planned development.

A GDP application thus permits the builder to pin down the specific details that may be important to the design of that particular project: the number and location of ingress roads to the project; the location of open space areas; the configuration of the internal roads; the location of common facilities, etc. Moreover, it may give the builder useful feedback from the board, the board's consultants or members of the public, feedback that enables the builder to redesign the plans early to avoid problematic features before spending too much money on detailed plans and engineering.

GDP Approvals Carry Some Risks

There are certain risks and uncertainties inherent with a GDP application. First, it is not entirely clear exactly what protection a GDP gives. Although the statute and its history compellingly suggest that at the subdivision or site plan application phase a planning board cannot impose any requirements on the development that conflict with the GDP, no court has ever addressed this issue.

Second, although the statute appears to permit very generalized GDP plans, it is unclear whether a planning board can deny the GDP if the builder refuses to comply with its demand for more detail. For example, can the planning board insist that the plan show all of the specifics for drainage? A GDP application might become so specific that it is indistinguishable from a site plan application, even though the GDP approval does not itself grant the builder a preliminary site plan approval.

Third, a GDP application must be noticed in precisely the same manner as a site plan or subdivision application. If public opposition is already crystallizing, the public questioning and testimony may be just as protracted and burdensome as in the site plan or subdivision application. The result may be not just one lengthy and expensive set of hearings, but two. Moreover, the GDP application gives opponents a trial run, which may enable them to mount a more effective campaign when the builder applies for site plan or subdivision approval.

Fourth, the GDP may legally bind the builder as well as the town. A successful GDP application may commit the builder prematurely to plans which ultimately appear to be unfavorable. The builder could wind up in the position of explaining to the Board why the GDP that the board liked just a few years ago should now be amended. While there seems to be no logical reason why a builder should not be permitted to combine an application to amend a GDP with a site plan or subdivision application, no court has expressly held that the builder can combine such applications.

The decision whether to seek-or forego-GDP approval is, if not required by the ordinances, often a complex and important one. It may have very significant legal and practical consequences for the success and profitability of the development and such considerations must be carefully evaluated before proceeding.

Stephen M. Eisdorfer is also a partner within the Land Use Division of Hill Wallack. A Member of the Board of Directors of the New Jersey State Bar Association's Land Use Section, he concentrates his practice in land use litigation, including Mount Laurel litigation and litigation involving the civil rights statutes.

Henry T. Chou is an associate of the firm and member of the Land Use Division. He concentrates his practice in diverse land use matters.