Author: Howard D. Geneslaw

NJABC Relaxes Additional Regulations in Response to COVID-19 Crisis

On April 7, 2020, we published a blog explaining the guidance and forms of relief recently provided by the New Jersey Division of Alcoholic Beverage Control (“Division”) to liquor license holders throughout the state. The issued guidance and relief pertain to operations of alcoholic beverage licensees and permittees during the state of emergency declared to address the COVID-19 crisis. Since that time, the Division has issued three new special rulings to address additional COVID-19 related issues. Each special ruling is summarized briefly below. Special Ruling Granting Relaxation of Signature Requirement, Product Returns, Credit, Notices of Obligation, and Bill and Hold This special ruling grants relaxation of several regulations promulgated under the Alcoholic Beverage Control Act (the “Act”), as well as under a previous special ruling. Signature on Invoices: To comply with social distancing protocols, the Division temporarily suspended the requirement that a licensee must sign and date a delivery slip, invoice, manifest, waybill, or similar document at the time of delivery of any alcoholic beverage by a licensed manufacturer, importer, or wholesaler. It sets forth acceptable alternative methods for signature, which includes methods like sending a contemporaneous email confirming receipt, photographing the invoice and confirming electronically with the wholesaler, or using the retailer’s own pen to acknowledge receipt. This modification runs through the period of...

NJABC Issues Guidance and Provides Relief to Certain Licensees and Permit Holders During COVID-19 Crisis

The COVID-19 pandemic has presented unforeseen challenges to countless businesses across the country. Businesses that serve alcoholic beverages for on-premises consumption have been hit particularly hard. Through Executive Order No. 107 (the “Order”), and in connection with the declared State of Emergency, New Jersey Governor Phil Murphy imposed certain restrictions on restaurants and bars. On March 30, 2020, the State of New Jersey Division of Alcoholic Beverage Control (“Division”) issued Advisory Notice 2020-03, which outlines the Division’s interpretation of the Order and provides guidance to licensees concerning the activities in which they may engage in during the COVID-19 crisis. All license holders in the state should review the advisory notice in full, in addition to some of the major points outlined below. Following those points is an explanation of the special ruling regarding Limited Brewery License holders that was issued by the Division concurrently with the advisory notice, and a summary of some recent changes in protocol for interactions with the Division and its staff. Lastly, there is a brief summary of the April 1, 2020 order issued by the Division authorizing the extension of certain alcoholic beverage permits. Advisory Notice 2020-03 Retail consumption licensees: Bars, restaurants, or other establishments holding retail licenses may be open during this time and sell alcoholic beverages in their...

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

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

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

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

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

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

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

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

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,...