Gibbons Law Alert

Gibbons Law Alert

Tagged: New Jersey

New Jersey Future Report: Changes to Low Income Housing Tax Credit Selection Criteria Change Locations of Affordable Housing Development

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Posted in Development/Redevelopment

On May 24, 2017

In 2013, the New Jersey Housing and Mortgage Finance Agency made significant changes to the Qualified Allocation Plan (QAP), putting in place caps on development in areas with significant concentrations of poverty and adding additional criteria to encourage development in areas that would grant low- and moderate-income families a better chance at greater economic opportunity. Specifically, these changes encouraged development in transit oriented districts and areas with ready access to public transit, as well as encouraging development in areas with high-quality, well performing schools. In a recent study, New Jersey Future has found that these changes to the QAP have effectively implemented a policy shift in moving a significant amount of affordable housing construction out of poverty-stricken areas and reallocating such construction to more suburban areas of the State. Prior to 2013, roughly half the tax credits awarded were for economically distressed areas; after the changes to the QAP, that allocation is down to approximately 20%. More projects are being awarded tax credits in suburban areas with transit access and quality schools due to these changes in statewide policy as announced in the QAP, and this trend will likely make the limited number of tax credits allocated to urban areas more competitive as well. Click here to read New Jersey Future’s summary of their report.

We Have to Talk: New Jersey Appellate Division Invalidates Discharge Permit for Failure of Agency to Consult with Highlands Council

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Posted in Environmental and Green Issues

On May 10, 2017

In the latest twist in a saga that began in 2002, the New Jersey Appellate Division held that the Department of Environmental Protection’s (DEP) failure to consult with the Highlands Council invalidated a wastewater discharge permit that DEP had issued to the prospective developer of a site located in the “planning area” covered by the state’s Highlands Water Protection and Planning Act (Highlands Act). As a result, the story is guaranteed to continue for several more months and perhaps, in light of likely appeals, several more years. Bellemead Development Corporation first received a New Jersey Pollution Discharge Elimination System (NJPDES) permit for the discharge of treated wastewater from a planned development in Tewksbury in 1998. In 2002, with the permit set to expire the next year, Bellemead applied for a renewal of its original permit. DEP’s denial of the application in 2006 set in motion a chain of administrative hearings, apparent settlements, and new applications that culminated in DEP’s issuance of a new permit in 2014. The Township of Readington and several citizen groups appealed. The appellants pointed to a number of procedural missteps by DEP, but the court focused on the department’s failure to consult the Highlands Council prior to issuing the permit. The Council was created by the 2004 Highlands Act, which regulates...

Sovereign Impunity?: State Cannot Be Sued Under New Jersey Spill Act for Pre-Enactment Discharges

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Posted in Environmental and Green Issues

On May 1, 2017

Since its original enactment in 1976, New Jersey’s Spill Compensation and Control Act (commonly known as the Spill Act) has been amended no fewer than ten times. The New Jersey Supreme Court had to grapple with that complicated history in its recent decision in NL Industries, Inc. v. State of New Jersey, No. A-44-15. Reversing the 2015 opinion of the Appellate Division, on which we have already written, the Court held that while the original statute made New Jersey subject to Spill Act liability by including the State in the definition of a “person,” subsequent amendments that (among other changes) expanded some portions of the statute to cover pre-enactment discharges did not “clearly and unambiguously” abrogate the State’s sovereign immunity for pre-enactment activities. As a result, the State can never face Spill Act liability associated with its discharges that occurred before the statute’s effective date of April 1, 1977. The case concerned the remediation of a contaminated site on the shoreline of Raritan Bay with an estimated cleanup cost of $79 million. Development plans for the area in the 1960s led to a proposal to construct a seawall. At least some of the material used in the seawall, which was completed in the early 1970s, allegedly consisted of furnace slag from a lead smelting facility operated...

Clarifying How New Jersey Counts Prospective Need and Evaluating Competing Proposals for Builder’s Remedies

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Posted in Development/Redevelopment

On March 24, 2017

Determining the municipal fair share housing obligation has been the subject of litigation for the better part of 18 years, since the last valid set of regulations for the New Jersey Council on Affordable Housing expired in 1999. As we have previously blogged, the Supreme Court’s recent decision in In re Declaratory Judgment Actions Filed by Various Municipalities, County of Ocean, – N.J. – (2017) established that the constitutional obligation to provide realistic opportunities for the construction of affordable housing is cumulative, leaving only the question of how to calculate the need during two periods: one from 1999 to 2015, and one from 2015 to 2025. The Appellate Division recently released for publication an edited version of Judge Wolfson’s trial court opinion in In the Matter of the Application of the Township of South Brunswick for a Judgment of Compliance and Repose and Temporary Immunity from Mount Laurel Lawsuits, in an effort to provide further clarity on how to calculate prospective need during the period from 2015 to 2025. The opinion addresses two fundamental questions: (1) how shall a municipality calculate its constitutional fair share housing obligation, and (2) how to evaluate competing claims for so-called “builder’s remedy” relief from intervening developers. The decision addresses how municipalities should determine their fair share housing obligation, and which methodology...

Gibbons Part of Team Nominated by NAIOP for Mixed-Use Deal of the Year

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Posted in Development/Redevelopment / Real Estate / Transactional Real Estate and Leasing

On March 20, 2017

NAIOP New Jersey, the commercial real estate development association, has announced the finalists for its Deal of the Year Awards. Gibbons P.C. was part of the team nominated for Mixed-Use Deal of the Year for the project involving the disposition of the Hoffmann-La Roche US headquarters in Nutley and Clifton, New Jersey. Winners in the categories of Industrial Deal of the Year, Office Deal of the Year, and Mixed-Use Deal of the Year will be announced at the 30th Annual Commercial Real Estate Awards Gala on May 11, 2017. Gibbons was part of the team that led the successful sale of the former 116-acre headquarters and research and development campus of Hoffmann-La Roche, which spans the municipalities of Nutley and Clifton, to Prism Capital Partners and a Boston-based investment manager. As part of the transaction, a joint venture between Hackensack University Medical Center and Seton Hall University will lease two of the campus buildings and 16 acres of the property for the new Seton Hall–Hackensack Meridian School of Medicine, the first new private medical school in New Jersey in over 40 years. The new site will also house Seton Hall’s College of Nursing and its School of Health and Medical Sciences, along with a National Health Institute-designated Clinical Research Center that Hackensack Meridian plans to...

Sentence First – Verdict Afterwards?: N.J. Appellate Division Holds That Spill Act Allows Private Parties to Compel Participation in Investigation Based on Potential Responsibility

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Posted in Environmental and Green Issues

On March 16, 2017

The New Jersey Spill Compensation and Control Act (Spill Act) has long included a contribution provision that permits private parties to recover cleanup costs incurred to the extent that they exceed their equitable share of those costs. In its recent opinion in Matejek v. Howard, the New Jersey Appellate Division interpreted the statute to give private parties another powerful remedy: the ability to compel other private parties who may be responsible for the contamination to participate in the investigation of the contamination, even before any findings about their respective responsibility. The case arose in Hillsborough, where the Department of Environmental Protection (DEP) removed underground tanks from five units in a condominium project after oil was discovered in a nearby stream. After confirming the absence of oil in the stream a few months later, DEP took no further steps. Seven years later, with DEP’s file on the matter still open, the owners of one of the units sued the owners of the other four units, seeking to compel them to participate in and equally share in an investigation and, if necessary, cleanup of their property. Even though there was no evidence about the precise source(s) of the contamination, the trial court found the fact that DEP had removed all five tanks to be sufficient grounds 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,...

Emerging Trends: E-commerce Continues to Increase Demand for New Jersey Warehouse Space

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Posted in Development/Redevelopment

On February 17, 2017

The dramatic increase in the number of shoppers purchasing goods online continues to drive demand for warehouse and distribution space in the northeast. According to Census Bureau estimates, e-commerce now accounts for more than 8% of all U.S. retail sales, a near doubling of e-commerce’s retail market share in five short years. With internet shopping becoming the new norm, customers expect shorter and shorter delivery schedules. Speedy delivery options, such as same-day shipping, can create a competitive advantage in the New York metropolitan area, but retailers can only capitalize on that advantage if goods are stored close to their final destination. Enter the modern warehouse and distribution facility in northern New Jersey. With millions of affluent residents and easy access to Manhattan, this area is the perfect location for retail operators to establish a warehouse and distribution center. The problem is that existing, vacant warehouse space is not so easy to find in a competitive market that’s highly regulated and over-developed. According to The Wall Street Journal, certain savvy owners, developers, and redevelopers have already recognized the shortages on the supply side and are converting large office buildings into big box warehouse space. Vacant properties with good access to major highways, perhaps underutilized due to environmental, zoning or other constraints, also offer high upside potential. Of...

Governor Signs Off on Amendments to New Jersey’s Electronic Waste Management Act

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Posted in Environmental and Green Issues

On January 27, 2017

On January 9, 2017, Governor Christie signed into law a bill aimed at fortifying New Jersey’s existing Electronic Waste Management Act, by ensuring that manufactures of certain consumer electronics shoulder the burden for recycling all such devices actually collected in the state during a calendar year. While this new law is technically a recast of the existing statutory scheme, the changes it affects are, in many ways, transformative. This blog provides a broad description of the previous law, the apparent conditions which prompted its revision, and the key innovations of the new law.

New Jersey Supreme Court Decides “Gap Period” Affordable Housing Need is to be Included in Present Need, Returns Cases to Trial Courts

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Posted in Development/Redevelopment

On January 18, 2017

The Supreme Court of New Jersey today issued its opinion in In re Declaratory Judgment Actions Filed by Various Municipalities partially affirming the decision of the Appellate Division, but expanding the definition of “present need” to include affordable housing need as it arose during the period from 1999 through the present. This decision recognized that the constitutional obligation to provide realistic opportunities for the construction of affordable housing did not stop in 1999, but has continued ever since, and provides some guidance for trial courts in how to determine the scope of that need. In effect, this decision modifies the decision of the Appellate Division by requiring trial courts to take the gap period need into consideration.

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