Gibbons Law Alert

Gibbons Law Alert

Author: Howard D. Geneslaw

New Jersey Issues Guidance to Assist Land Use Boards in Holding Electronic Meetings and Hearings

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Posted in Development/Redevelopment

On April 6, 2020

In the wake of Executive Order 103 declaring the COVID-19 public health emergency and Executive Order 107 concerning restrictions on public gatherings, most planning boards and zoning boards of adjustment in New Jersey cancelled their scheduled meetings and have since been evaluating how to resume meeting in a manner that complies with social distancing requirements and Executive Order 107. This has left applicants uncertain when and in what manner their applications for development will be considered and decided. Following enactment of emergency legislation to facilitate the conduct of electronic meetings, the New Jersey Department of Community Affairs, Division of Local Government Services, has issued guidance to specifically assist planning boards and zoning boards of adjustment with conducting public hearings electronically on applications for development. The guidance, titled “Planning Board and Zoning Board of Adjustments Operational Guidance – COVID-19: N.J.S.A. 40:55D-1, Recommendations for Land Use Public Meetings in New Jersey,” is a first step in assisting land use boards – some of which have been hesitant to begin holding “virtual” meetings – with the mechanics of arranging for and conducting electronic meetings and public hearings. The Municipal Land Use Law (MLUL) requires land use boards to hold meetings at least monthly. Such boards must meet as scheduled unless there is a lack of applications for development to...

Appellate Division Underscores Need for Findings, and Potentially More Testimony, to Approve Reduction of Variance

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Posted in Development/Redevelopment

On March 23, 2020

It’s a common scenario: after a series of public hearings, the scope of variance relief sought is reduced by the applicant or at the direction of the board, and the board then approves the application. A recent unreported opinion from New Jersey’s Appellate Division underscores that the resolution of approval must explain how and why the reduced scope of relief satisfies the variance criteria when the original proposal did not. This may require presentation of additional testimony by the applicant in support of the modifications. In 440 Company-Carriage House, LP v. Zoning Bd. of Adjustment for the Borough of Palisades Park, the Zoning Board of Adjustment for the Borough of Palisades Park (“Board”) granted three use variances (along with final site plan approval and certain bulk variance relief) to enable the construction of a 14-story, 121-unit, residential building. The relief granted by the Board represented a substantial reduction from what the applicant-developer had actually sought and presented testimony in support of over the course of a public hearing which extended for nine meetings. The developer had originally applied for use variances to permit a 17-story building, with 154 units. Rather than approving the project as presented, or denying it, the Board, acting on its own, voted to grant the variances with a reduction from 17...

New Jersey Expands Redevelopment Law to Include Stranded Shopping Centers and Office Parks

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Posted in Development/Redevelopment

On August 13, 2019

Last week, New Jersey’s redevelopment law was amended to recognize that shopping centers and office parks which have experienced significant vacancies for a period of at least two consecutive years may be deemed an “area in need of redevelopment.” The amendment, designated A-1700 and enacted as P.L.2019, c.229, expands criteria b. of the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-5, and takes effect immediately. Prior to the amendment, criteria b. authorized an “area in need of redevelopment” designation where the delineated area was characterized by the “discontinuance of the use of buildings previously used for commercial, manufacturing, or industrial purposes; the abandonment of such buildings; or the same being allowed to fall into so great a state of disrepair as to be untenantable.” The amendment contains three significant components: Buildings previously used for retail purposes, shopping malls or plazas, and office parks were added, so that discontinuance of use or abandonment of those stranded assets is now expressly within the statute; Experiencing significant vacancies “for at least two consecutive years” was added as a new threshold criteria, which applies not only to buildings used for retail purposes, shopping malls or plazas, and office parks, but also to buildings used for commercial, manufacturing or industrial purposes which were already encompassed by criteria b. of the redevelopment...

New York Appeals Court Decision Highlights the Risks of Not Filing Decisions and Not Holding Duly Noticed Public Hearings

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Posted in Development/Redevelopment

On April 4, 2019

A recent decision by New York’s Appellate Division, Second Department, serves as a reminder of the importance of promptly filing administrative determinations, holding required duly noticed public hearings, and the consequences of failing to do so. In Corrales v. Zoning Board of Appeals of the Village of Dobbs Ferry, Livingston Development Group in November 2012 submitted an application for the development of twelve condominiums. The Building Department forwarded the application to the Planning Board, which conducted a public hearing after which it recommended approval subject to certain conditions. The Village Board of Trustees, which retained site plan approval authority, granted site plan approval conditioned on, among other things, the applicant obtaining approval from the Architectural and Historic Review Board (the “AHRB”). Thereafter, the applicant applied to the AHRB, which denied its application. The applicant appealed the denial to the Zoning Board of Appeals (“ZBA”). While that appeal was pending, neighbors – one of whom did not receive notice of the Planning Board’s earlier public hearing – asserted that the proposed condominium use was not permitted in the zoning district. The neighbors’ attorney also raised this issue at a subsequent meeting of the AHRB, during which the assistant building inspector gave the opinion that the proposed use complied with applicable zoning regulations. The neighbors, viewing the...

NYSDEC Adopts Update to SEQR Regulations

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Posted in Development/Redevelopment / Environmental and Green Issues

On August 2, 2018

The New York State Department of Environmental Conservation (“DEC”) announced on June 28, 2018 that it had adopted a rulemaking package directed at updating its regulations relating to the State Environmental Quality Review (“SEQR”). The updates – DEC’s first to its SEQR regulations in more than two decades – are the product of an effort that began in February 2017 with the DEC’s filing of an initial notice and, following a series of public comment periods and subsequent revisions, culminated with its publication of the Final Generic Environmental Impact Statement (“FGEIS”) and revised text of the regulations. As revised, the regulations become effective on January 1, 2019 and apply to all actions for which a determination of significance has not been made by January 1, 2019. For projects that receive a determination of significance made prior to January 1, 2019, the existing SEQR regulations (which originally took effect in 1996) will continue to apply. Once effective, the revised regulations could have a significant impact on SEQR’s applicability to future development projects. The new regulations contemplate a number of mechanical changes to the environmental review process itself, including mandatory scoping of environmental impact statements, changes to the required content of environmental impact statements (“EIS”), as well as new requirements relating to the preparation and filing environmental impact...

An Application for Development Must Include All Checklist Items for Protection of “Time of Application” Rule to Apply, New Jersey Supreme Court Says

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Posted in Development/Redevelopment

On June 20, 2018

The New Jersey Supreme Court ruled today, in a unanimous opinion in a case of first impression captioned Dunbar Homes, Inc. v. Zoning Board of Adjustment of the Township of Franklin, et al., that to receive the protection of the “time of application” rule, an application must comply with the definition of “application for development” in the Municipal Land Use Law (“MLUL”), meaning that it must include all of the items required by the submission checklist which the municipality has adopted by ordinance. This case constitutes the first time the Supreme Court has interpreted the “time of application” rule, and its decision will impact the review of development applications throughout the state. The MLUL’s “time of application” rule provides that the ordinances and regulations in effect “on the date of submission of an application for development” govern review of that application. This reversed the longstanding “time of decision” rule whereby municipalities could change the zoning regulations at any time prior to the approval of an application for development, even where the change was enacted during a public hearing process specifically for the purpose of derailing a pending application. Under the “time of application” rule, the date upon which “an application for development” was submitted for review is key to determining what ordinances apply to it...

NJ Municipality’s Implied Acceptance of a Private Lane as a Public Road Requires Actions Consistent with Ownership or Evidencing Intent to Treat the Lane as Dedicated to Public Use

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Posted in Development/Redevelopment

On October 3, 2017

The New Jersey Appellate Division recently affirmed the Chancery Division’s determination that a municipality only impliedly accepts a private lane as a public road if it takes actions consistent with ownership or that otherwise evidence an intent to treat the land as dedicated to public use. In Holloway v. McManus, et al., an unpublished decision, an applicant sought to subdivide his property, which had access solely by way of a 25 foot wide unimproved dirt and gravel lane running across the McManus defendants’ land, into 13 residential lots. In connection with this application, the applicant requested the Township of Jackson provide permanent access to the property by declaring the unimproved lane a public road. The unimproved lane was depicted on a number of public documents, including: (i) a 1974 survey, which showed the path as a 10 to 12 foot “sand road”; (ii) the Township’s tax maps, which indicated the lane was a 25 foot “utility access easement”; and (iii) a 2002 subdivision map, submitted to the Township by another non-party development, which showed the path as a 25 foot “dirt and gravel utility access easement to be dedicated to [the] Township,” which was referenced in the legal description of the McManus defendants’ deed to their property. Nearby landowners, including the McManus defendants, objected to...

Time of Application Rule Protects Against Zoning Changes Only if an Application for Development Complies with All Ordinance Submission Requirements, New Jersey Appellate Court Rules

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Posted in Development/Redevelopment

On March 13, 2017

The New Jersey Appellate Division, in the published decision Dunbar Homes, Inc. v. The Zoning Board of Adjustment of the Township of Franklin, et al., recently declared what materials a developer must submit to a municipal land use board in order to constitute an “application for development” which triggers the protections of the Municipal Land Use Law’s (“MLUL”) “time of application” rule, N.J.S.A. 40:55D-10.5. Dunbar Homes establishes that an application is afforded the protections of the “time of application” rule from the time when an applicant submits an application form and all accompanying documents required by ordinance for approval. A formal finding that an application is “complete” by the municipality is not required. Thus, Dunbar Homes requires that the application essentially must be complete, even though that need has not yet been officially determined. The MLUL’s “time of application” rule provides that the ordinances and regulations in effect “on the date of submission of an application for development” govern review of that application. This reverses the longstanding “time of decision” rule whereby municipalities could change the zoning regulations at any time prior to the approval of an application for development, even where the change was enacted during a public hearing process specifically for the purpose of derailing a pending application. Under the “time of application” rule,...

NYSDEC Announces Proposed Amendments to SEQRA Regulations

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Posted in Environmental and Green Issues

On February 6, 2017

The New York State Department of Environmental Conservation (NYSDEC) recently announced proposed amendments to the regulations implementing the State Environmental Quality Review Act (“SEQRA”), 6 N.Y.C.R.R. Part 617. The amendments mark the first update to the SEQRA regulations in over 20 years. According to a press release issued by the NYSDEC, “[t]he update is designed to encourage smart growth and sustainable development across the state” and is intended to compliment the agency’s implementation of the New York State Lean Initiative, which the NYSDEC says has “improved public responsiveness and performance at DEC while maintaining high standards of environmental and natural resource protection.” The press release explains that “[t]he proposed amendments to SEQR will both streamline and strengthen the State’s environmental review process by expanding the actions not subject to further review, known as Type II actions, modifying certain thresholds for actions deemed more likely to require the preparation of an environmental impact statement (EIS), making scoping of an EIS mandatory rather than optional, and making the acceptance procedures for a draft EIS more consistent.” Examples of proposed Type II actions that would be added to the SEQR regulations include: installation of broadband within an existing right-of-way; green infrastructure upgrades or retrofits; installing 5 MW or less of solar arrays on landfills, cleaned-up brownfield sites, wastewater...

New Jersey’s Time of Application Rule Does Not Bar a Favorable Zoning Amendment

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Posted in Development/Redevelopment

On August 2, 2016

In a published decision, the New Jersey Appellate Division ruled on July 27 that the “time of application” rule, which mandates that development applications are governed by the regulations in effect at the time of submission, and was intended to protect applicants from negative zone changes while their applications were pending, does not apply to zone changes which benefit a project.

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