January 1, 1900

by Henry A. Hill

In this Special Atlantic Builders Conference Edition of the Hill Wallack Quarterly, we provide builders and others in the real estate development industries with our analysis of the state of land use law in New Jersey, along with our best assessment of where the State's policies are likely to take us in the months and years ahead. As attorneys who represent builders, we can best accomplish such goals by first discussing where we are currently devoting our efforts, and by noting how our active practice in land use law has changed over the course of the past year.

A review of our current land use caseload indicates that we are now handling Mount Laurel challenges involving 36 different municipalities, either by enforcing prior settlements through the courts or the Council on Affordable Housing, or by bringing new exclusionary zoning actions. This is a substantial increase over last year's total. We are also seeing a sharp increase in the number of cases against municipalities that have downzoned residential sites, with such downzonings typically increasing minimum lot sizes from the 1-3 acre range to the 6-10 acre range. Our caseload involving municipal attempts to acquire land for open space, through condemnation or otherwise, has also been increasing. We have our usual number of ordinary appeals from planning board and zoning board denials. Other categories of cases remain steady, or are slowly increasing. Clients increasingly are focused on expediting DEP approvals, as they hear rhetoric from the DEP Commissioner to the effect that new regulations, designed to thwart development in many areas, are being drafted.

The changes in our case load seem to reflect the recent legal and policy developments in the State. Those external events include: (1) the Supreme Court's recent reaffirmation, in Toll v.West Windsor, of the Mount Laurel doctrine and the "builder's remedy"; (2) the continued escalation of new housing prices making it appear to be sensible, for the first time, to embark on protracted and expensive litigation in order to secure the right to build housing, sometimes on smaller tracts of land not previously considered sizable enough to warrant that course of action; (3) increased resistance to all housing developments as a result of the administration's "anti-sprawl" rhetoric, as evidenced by the recent water moratorium; (4) recent decisions in which courts have upheld 6 and 10 acre zoning in towns that have met their Mount Laurel obligation; and (5) an overall sense within the building community that state policies impacting home builders are not going to get better, that the proven technique of hiring local consultants and lawyers who are well received in the community is not going to work, and that, unless approvals are vigorously pressed immediately, backed by litigation or the threat of same, the project is simply not going to be built. Given these circumstances, the litigation barrier, which can significantly add to the front-end costs, is being crossed more and more as time goes on.

The Governor's recent anti-sprawl rhetoric and the DEP Commissioner's statements to the effect that he will redraw the State Plan do not themselves prohibit new development in any targeted area of the State, such as the "Clinton corridor," but new regulations have spawned, and will spawn, the necessary legal challenges. We therefore provide this issue summarizing the state of land use law and analyzing the likely change in course we confront. We also focus this Special Edition on maximizing the case for vesting of development rights and grandfathering, which will be needed to avoid the impact of the new regulations we are likely to see. We trust that our readers will find our efforts helpful in confronting this evolving land use world, and we welcome your inquiries.

Henry A. Hill is a senior partner of Hill Wallack. He is head of the firm's Land Use Division and 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.