Time of Application Rule is Now The Law

As we noted back on March 1, 2011, the judicially-created “time of decision” rule’s expiration date was coming. 

Effective today, developers may file applications and, with limited exception, get the benefit of the zoning ordinances in effect at the time of filing pursuant to the “time of application” amendment to the Municipal Land Use Law signed on May 5, 2010 by Governor Chris Christie.

For a look at the full text of the law, see: http://njzoningwatch.com/2011/03/01/time-of-application-law-becomes-effective-in-two-months/

Time of Application Law Becomes Effective In Two Months

Just a reminder to those municipal elected officials, land use board members, professional planners and zoning officers (as well as the private developers) who may have forgotten about a change in municipal land use law passed almost 10 months ago — the “time of application” rule becomes effective one year after its adoption.  As it was signed into law on May 5, 2010, it becomes effective May 2011. 

Some have questioned whether the law applies to applications filed and deemed administratively “complete” or if it simply is the mere filing of the application for development that grandfathers the existing zoning.  Based upon the fact that the language of the new law speaks in terms of “submission of an application for development,” it appears that the time of filing, not the determination of completeness, will control. 

Nevertheless, one question that may ultimately need to be decided by an appellate court is what constitutes a “submission”?  In other words, if the application for development is so deficient that it appears clear that it was filed solely for the purpose to circumvent contemplated zoning changes, will a court create an exception to the rule?

The complete language of the new section of the law is below:

N.J.S.A. 40:55D-10.5 Developmental regulations, certain, govern review of application.

1. Notwithstanding any provision of law to the contrary, those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development and any decision made with regard to that application for development. Any provisions of an ordinance, except those relating to health and public safety, that are adopted subsequent to the date of submission of an application for development, shall not be applicable to that application for development.

2. This act shall take effect one year next following enactment.

 Approved May 5, 2010.

Governor Christie Signs “Time of Application” Legislation

On Wednesday, May 5, Governor Chris Christie signed S-82 into law.  The new law amends the Municipal Land Use Law to abolish, except in limited circumstances, the “Time of Decision” rule adopted by the courts which had previously allowed municipalities to change zoning ordinances, including eliminating permitted uses, at any time prior to a final decision of a land use board.  The new law creates a “Time of Application” standard, under which an applicant may proceed before a land use board based upon the zoning ordinances in effect at the time of filing an application without fear that a subsequent ordinance adoption will scuttle their application.  Many municipal officials opposed the signing of this bill; however, it enjoyed widespread bipartisan support in both houses of the Legislature and the Governor had previously committed to signing some form of change to the “Time of Decision” rule during his campaign.

According to a statement from the Governor’s Office:

Governor Chris Christie today signed legislation to simplify and make more predictable regulations governing land-use development applications at the municipal level, encouraging development and lowering costs for New Jersey businesses and job creators.

S-82, commonly referred to as “time of application” or “time of decision” legislation, provides that a land-use development application will be governed by the municipal development regulations in effect at the time of the application.  Exceptions are provided for those rules related to health and public safety. 

The legislation does not guarantee approval of a land-use application, but instead allows for the application process to move forward without the unnecessary hurdle of constantly changing requirements while the application is pending.

“New Jersey’s businesses and entrepreneurs – the job creators of our state – invest considerable amounts of financial and human resources in navigating a vast landscape of rules and regulations at the state and local level,” said Governor Christie.  “Prior to the signing of this legislation, the system allowed for those rules to be changed in the middle of the process, even after an application has been submitted.  This legislation makes common sense changes to improve the application process and move New Jersey in the right direction of providing a friendlier environment for job creation, while keeping safeguards for public health and safety in place.”

Currently, regulations do not “lock-in” until preliminary approval is granted for an application, allowing municipalities to change the requirement of an application after its initial submission, resulting in a business that is investing in New Jersey having to start the costly, time-intensive application process over, or abandoning the project altogether.

Assembly Passes Time of Decision Bill

As expected, the State Assembly passed A-437, the “Time of Decision” bill, amending the Municipal Land Use Law to codify a change to the judicially-created “time of decision” rule by a vote of 51-14-11 (for-against-abstain) with 4 members of the lower house not voting. 

The bill states that municipal development regulation in effect on the date of filing of an application for development will control the review and any determinations relating to the application.   As a result, any changes to local ordinances following the filing of an application, except ordinances relating to health and public safety, shall not apply to pending applications.

The bill (S-82/A-437) will now move to the Governor for consideration.  The Governor is expected to sign the bill.

Time Running Out on “Time of Decision” Rule?

Time Running Out on Time of Decision Rule?

A bill (S-82) to amend the Municipal Land Use Law to change the judicially-created “time of decision” rule has passed the State Senate (27-7).  Passage of the bill is seen as a win for developers as it eviscerates a municipality’s ability to change zoning requirements in response to an application for development.  Critics, including the State League of Municipalities and environmental groups such as the Sierra Club, argue that municipalities should have the ability to update their zoning ordinances following the filing of an application as the zoning may be inconsistent with the municipality’s master plan or the impact of a proposed use or the density of the development may not have been contemplated when the zoning ordinance was originally enacted. 

The focus now moves on to the Assembly, where the lower house is expected to take up the bill (A-437) on Monday, March 15.

While Governor Chris Christie has not publicly expressed his support for the bill, it is expected that the Governor will sign the bill if it passes the Assembly.  The Governor, when questioned about the “time of decision” rule during the 2009 gubernatorial campaign, voiced his support for a legislative change to the current rule and enacted a similar “time of application” standard for agency approval and permits for the State of New Jersey through Executive Order No. 2.

Time of Decision Bill Up For Senate Vote on March 11

The New Jersey State League of Municipalities issued an alert which states that the full Senate is scheduled to vote on the “Time of Decision” bill, S-82, at its session on Thursday, March 11.  As noted in an earlier post, the “time of decision” is a judicially-created rule which holds that land use boards are to apply the zoning ordinances in place as of the time the board’s decision is rendered.  The bill will change current law and require, except in limited circumstances, that land use boards apply the zoning requirements as of the time of filing of an application for development.

The Assembly version of the bill, A-437, has also passed committee and, according to the League, will likely be scheduled for a vote prior to the budget break in late March.

Christie Energy Plan Would Have Land Use Impact

Republican gubernatorial candidate Chris Christie unveiled his Energy Plan earlier this week with a strong emphasis on encouraging the manufacturing and installation of wind and solar technologies within New Jersey.   Under Christie’s plan, the manufacturing of wind turbines and photovoltaic equipment in New Jersey will be supported through substantial tax incentives, solar farms will be treated as a permitted use under the MLUL, installation of solar farms as part of a landfill closure plan will be mandated and the installation of solar technology on a portion of preserved farmland will be permitted.

Several of his proposals would make even the most environmentally conscious politicians “green” with envy while still emphasizing job creation.

According to a release from the Christie campaign, Christie’s Energy Plan includes the following initiatives:

The “Choose New Jersey Energy” Campaign. A Christie Administration will leverage New Jersey’s skilled workforce, technology base, manufacturing base and port facilities to make New Jersey a leader in manufacturing renewable energy.  New Jersey will undergo a brand makeover as part of the “Choose New Jersey Energy” campaign.  Governor Christie will lead a campaign that will market and sell New Jersey’s resources and undeniable potential to energy producers, innovators and developers.

 Establish “Renew NJ” to consolidate all renewable energy manufacturing efforts.  As part of the New Jersey Partnership for Action, “Renew NJ” will focus exclusively on the promotion of New Jersey resources and the development of renewable energy manufacturing. The Christie Plan will move all economic development efforts related to renewable energy from the BPU, which is not in the business of growing jobs, to “Renew NJ.”  “Renew NJ” will serve as a one-stop shop for companies – working to promote the state, market to prospective energy manufacturers both at home and abroad, deliver grants, loans and other state incentives in an efficient and timely manner.

 Incentivize Energy Manufacturing with Tax Credits. In order to make New Jersey an attractive place to manufacture energy, the Christie Administration will offer a tax credit up to 100% of the corporate business taxes or the insurance premium tax for any wind turbine and manufacturing facility that locates in New Jersey.  The incentive will significantly erase the current disincentives in the state’s tax policy, and will be an important tool to lure manufactures to the state.

 Install Solar Farms on Every Landfill.  Considering there are currently over 800 active and closed landfills covering over 10,500 acres in our state, what better way to utilize this space more effectively than with solar farms.  The Christie Plan requires that all New Jersey landfills regulated by the NJ DEP be required to install solar farms as part of their closure plans and on-going maintenance permits.  New Jersey’s landfills represent hundreds of acres able to support significant solar capacity, and the Christie Administration will take advantage of it.

Encourage Solar Farms by Making it a Permitted Land Use. Solar applications should not have to seek use variances or zone changes.  A Christie Administration will make it easer for prospective solar developers to site and build these facilities. Removing the uncertainty and delays inherent in local land use approvals would greatly incent incentivize landowners and potential solar developers.

 New Jersey Farmland Isn’t Just for Agriculture. Keeping with New Jersey’s commitment to preserve and protect our natural resources, the Christie Plan will allow Permanently Preserved Farmland to use up to 20% for solar panel installation.

For a link to the Star Ledger article discussing the Christie Energy Plan, click here.

For a link to the Daily Record article on Chris Christie’s and Governor Jon Corzine’s same day visit to two different solar manufacturing plants, click here.

Governor Signs Age-Restricted Housing Bill

On July 2, Governor Corzine signed into law the controversial bill which allows applicants who received land use approval for an age-restricted development to reapply to land use boards for relief from the age-restrictions. 

The law now includes several additional hurdles for developers to lift age-restrictions and reduces the time for an appeal of a denial of a conversion to 30 days from the board’s resolution as opposed to 45 days from publication of notice of the decision.

A press release from Assemblyman Louis Greenwald (D-Camden) details the highlights of the new law:

Greenwald stressed that no 55-and-over development will be eligible for conversion if even one individual has already purchased or put down a deposit on a unit. Age-restricted developments where residents have already moved into homes similarly will be prohibited from conversion.

As reported by the Star-Ledger on Feb. 15, 2009, New Jersey’s municipalities have approved an overabundance of 55-and-older age-restricted housing developments. Estimates suggest the oversupply of such age-restricted homes is between 15 to 20 years into the future, far outweighing current demand.

“Because of the supply glut in the age-restricted housing market, projects have stopped. Yet many young professionals – teachers, police officers and firefighters among them – are finding themselves increasingly unable to afford homes in the very communities they serve,” said Greenwald. “We must provide a limited and responsible avenue to build homes for the middle-class residents who need them while putting New Jerseyans back to work.”

Under the law, a developer seeking to convert an age-restricted community will be required to file an application with the local planning board or zoning board of adjustment that granted the initial approval of the development. Prior to issuing an amended approval for the conversion, the local board will be required to have received documentation from the developer demonstrating that the stringent site improvements and infrastructure requirements have been satisfied.

For the complete press release, click here.

Legislative Fix Sought For Saturated 55+ Housing Market

An article in the Sunday Star Ledger by Nyier Abdou highlights how the combination of the downturn in the housing market coupled with the glut of age-restricted developments burdened with low occupancy (or stalled due to lack of financing) are forcing developers back to governing bodies and planning boards in the hope of lifting age-restrictions. Many municipalities are working with developers (either willingly or grudgingly) to eliminate the restrictions in exchange for creating additional on-site affordable housing or recreational improvements within the community.

According to the Ledger:

That leaves the state’s vast amount of age-restricted housing in limbo. [Real estate research firm President Jeffrey] Otteau estimates there is enough age-restricted housing built and in the pipeline to meet demand for the next 15 to 20 years. Developers, planners, and townships are taking a hard look at age-restricted developments on their books and asking: will it sell?

“This boom of 55-plus housing has run its course for now in New Jersey,” said Phil Morin, special counsel in the real estate department at the law firm of Saul Ewing in Newark, which has many builders as clients.

At least some lawmakers agree. Last week, identical bills were introduced in the state Assembly and Senate aimed at addressing the state’s glut of age-restricted housing. The proposed law offers incentives in the form of reduced Council on Affordable Housing obligations for towns that remove age restrictions on developments that have not yet been built.

The recognition that stalled development and the large inventory of vacant (or approved but unbuilt) 55+ housing hurts the economy has prompted a bipartisan team of legislators to introduce bills in the State Senate and Assembly (A-3772/S-2577) which eliminate the age-restrictions in exchange for meeting certain development standards and which further provide incentives for communities to agree to lifting the restrictions — such as reduced Council on Affordable Housing obligations for the municipality.

The Statement to the bill reads as follows:

This bill would allow for the conversion of age-restricted housing units, pending approval by the local planning or zoning board and/or the Smart Growth Ombudsman.

To be eligible for conversion, a developer must agree to set aside a percentage of the units in the development, not to exceed 20 percent, for the provision of affordable housing. These units would automatically count towards fulfilling a municipality’s affordable housing obligation and neither those affordable units nor market rate units within such a development would generate an additional growth share obligation.

The bill also provides that to be eligible for conversion, preliminary or final approval for the construction of the development must have been granted prior to the bill’s effective date. Additionally, the developer must not be holding any deposits for the sale of units within the community.

Under the bill, a developer seeking to convert an age-restricted community must file an application with the local planning board or zoning board of adjustment that granted initial approval of the age-restricted development as to which conversion is to be sought.

Prior to issuing an amended approval for such a converted development, the local board must receive documentation from a developer demonstrating that the following site improvement and infrastructure requirements have been met:

· the site meets parking standards established in the Residential Site Improvement Standards;

· the recreation improvements and other amenities have been revised, as needed;

· the water supply and sanitary sewer systems are adequate for the needs of the converted development;

· if additional water supply or sewer capacity is needed and the developer is unable to obtain it, the number of dwelling units has been reduced;

· if additional parking is needed, and the developer is unable to provide it, the number of dwelling units has been reduced; and

· if additional parking is provided and increases the amount of impervious cover by more than one percent, the storm water system calculations and improvements have been revised accordingly.

The bill also provides that a converted development must conform to applicable building codes, and requirements for, and limitations on, size and square footage imposed pursuant to a preliminary approval. Additionally, it is the intent of this bill that the layout of a subdivision or site plan should not ordinarily be revised other than to accommodate parking, recreational improvements, infrastructure enhancements, a reduction in the number of units, and to accommodate the affordable units as attached housing. Similarly, the size, height, footprint, number of bedrooms and square footage of buildings must not be increased, but may be decreased. However, the number of bedrooms for the affordable units must meet Uniform Housing Affordability Controls requirements.

Finally, the bill allows for appeals to the Smart Growth Ombudsman if local approval for a converted development is denied.

For a copy of A3772, click here: Age-Restricted Housing Conversion

For the full Star Ledger article (and not just the self-serving portion with my quote), click here.

Judge Rules Vineland Master Plan Void: Ad-Hoc Committee Violated Open Public Meetings Law

The Daily Journal is reporting that a Cumberland County trial court invalidated Vineland’s revised master plan and subsequent zoning changes as meetings involving an ad-hoc committee (which included four planning board members) appointed to provide suggestions on updating the master plan failed to comply with the Open Public Meetings Act. 

The court found that the failure to provide notice of the committee’s 16 work meetings between April 2005 and September 2006 was fatal to the process.

From the Daily Journal article:

Lakewood-based developer Rudy’s Airport LLC filed a lawsuit in late 2006 seeking to invalidate the master plan. . . . Rudy’s Airport LLC owns a 180-acre former landing strip off Weymouth Road near Willow Grove Lake. The company had proposed building about 360 age-restricted homes on the property. Current zoning rules limit the number of homes to one per 2.5 acres.

The developer alleged the city violated statewide land-use law by allowing the committee to create revisions to the master plan. Rudy’s Airport LLC also alleged the city violated the Open Public Meetings Act when it did not allow the public to attend its meetings. “The idea of the Open Public Meetings Act is, not only are you allowed to make public comments, but you’re allowed to observe the process,” argued the developer’s attorney, Kevin D. Sheehan of Parker McCay in Marlton. “If you can’t observe the process, you can’t be a meaningful participant when it’s time to make public comment.”

Vineland Planning Board Solicitor Frank DiDomenico argued public notice wasn’t required because the committee merely advised the Planning Board and didn’t make any decisions regarding the master plan.

The City has not yet determined whether it will seek a stay of the trial judge’s ruling and appeal or attempt to salvage the master plan through additional public hearings.

While I have not had the opportunity to review the judge’s ruling as it was an oral opinion from the bench, it appears that the judge broadly construed the OPMA in finding that an ad-hoc committee which contained less than a majority of planning board members was in violation of the public meeting notice requirements. 

The ruling, as reported, appears to be a “win” for property owners, developers, citizen activists and any other interested party who claims that key decisions on land use policy have been predetermined before the formal master plan public hearing process has begun.  From the municipal government perspective, it severely constrains a public entity from a process standpoint in that it appears to require that even advisory committees, with no power to take formal action or adopt policy, provide public notice of all meetings.   Here, while Vineland held seven public hearings prior to the master plan adoption, this was not enough to cure the apparent OPMA violation.

However, this may only be the first ruling in a long legal battle.  Before definitive conclusions can be drawn about the impact of this decision, the court’s opinion and the underlying legal rationale for the decision must be carefully examined.  Regardless of the basis for the decision, since this is an unreported decision of a trial court, board members, elected officials, property owners and activists need to put the ruling into context as it has no binding effect on other communities at this point.

For the full Daily Journal article, click here.

For the Press of Atlantic City article on this case, click here.

Editor’s Note:  It appears that the City will appeal the trial judge’s ruling.  See the March 25 Press of Atlantic City article here.