January 1, 1900

Henry A. Hill

Let's face it-this has been an awful year for those of us engaged in securing development approvals for the housing industry.

Spurred on by an administration openly hostile to all housing opportunities outside of New Jersey's core developed areas, new DEP and DCA regulatory actions threaten to choke off future and partially approved developments, and extend an already effective four year moratorium on the implementation of the Mount Laurel doctrine.

Recent decisions from the courts are no more promising. The Supreme Court has expanded municipal land use powers to include regulations within the "implied powers" of a municipality-those not explicitly authorized by the MLUL-and refused to hear lawsuits challenging the COAH moratorium.

New and impending DEP rules, including those governing stormwater, species protection, water quality management, wetlands, stream reclassifications and highlands protection, threaten to remove hundreds of thousands of acres from all but "mega lot" development, and such regulation is already being used to justify very large lot zoning. Indeed, the trial courts have upheld 10 and 12 acre minimum lot sizes, and municipalities currently debate whether 16 or 20 acre minimums will be upheld.

The only bright side for builders is that the regulatory chokehold on housing supply in the suburbs has had the effect of increasing the value of approved inventory held by builders, and it is making urban redevelopment opportunities more viable in a regulatory sense. Whether the market will accept additional urban redevelopment remains an untested proposition.

We have always been told that it is darkest before the dawn. As housing costs increase and housing availability diminishes, it has become clearer that New Jersey is becoming a poor choice for employers. As the perception of economic stagnation caused by these policies increases, the political dynamics should begin to change, and policies that promote a reasonable supply of housing choices should become more attractive. Logic tells us that this is the peak of the darkness in a political sense, but only time will tell for sure. In the interim, we at Hill Wallack provide you with this Special ABC Issue of the Quarterly, because no matter how dark it may be, it remains our goal to shine as much light as possible on the legal problems affecting the development industry.

Henry A. Hill is a senior partner of Hill Wallack. He is head of the firm's Land Use Division and partner-in-charge of the Division's Land Use Litigation Practice Group. A recognized national expert in the field of land use law, he is a past-Chair of the New Jersey State Bar Association's Land Use Section.