Gibbons Law Alert

Gibbons Law Alert

Tagged: Land Use

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...

Howard Geneslaw Argues Before NJ Supreme Court in Dunbar Homes on Behalf of NJ State Bar Association

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Posted in Development/Redevelopment

On May 1, 2018

On Monday, April 9, 2018, Howard D. Geneslaw, a Director in the Gibbons Real Property Department, argued before the Supreme Court of New Jersey on behalf of the New Jersey State Bar Association (“NJSBA”) as an amicus curiae in the matter of Dunbar Homes, Inc. v. Zoning Board of Adjustment of the Township of Franklin. The NJSBA was one of several amici involved in this case of first impression on the key question of when a submission to a municipal planning board is considered an “application for development” for purposes of being afforded protection under the “time of application” rule. The “time of application” rule provides that the zoning regulations which govern the review of an application for development are those in effect at the time it is submitted. The issue to be decided by the New Jersey Supreme Court centers on what constitutes submission of an application for development which allows the applicant to invoke the protection of the “time of application” rule. The Appellate Division, in a reported decision, ruled that protection is not available until an applicant submits all documents specified in the municipality’s application checklist adopted by ordinance, although the application need not have been deemed complete for protection to vest, but did not address what occurs when the checklist is...

New Jersey HMFA Announces 2018 Tax Credit Round – Applications Due July 24, 2018

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Posted in Development/Redevelopment

On March 8, 2018

The New Jersey Housing and Mortgage Finance Agency (HMFA) announced Tuesday that it is now accepting applications for federal low-income housing tax credits (“LIHTC”) for the development of family, senior, and supportive housing projects throughout New Jersey. This announcement relates to the competitive LIHTC, which provides a 9% tax credit as a mechanism of funding construction of affordable housing in New Jersey. HMFA has announced that there is a funding tranche of approximately $28 million dollars in LIHTC funding available. Applications for the family, senior, and supporting housing rounds are due July 24, 2018 at noon.

Casino Reinvestment Development Authority Releases Proposed Land Development Rules for Atlantic City Tourism District

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Posted in Development/Redevelopment

On October 9, 2017

The Casino Reinvestment Development Authority (“CRDA”) recently released for public comment its proposed land use regulations for the Tourism District within Atlantic City. CRDA oversees all land use planning within the Tourism District, which spans from the beaches and boardwalk of Atlantic City north to the Convention Center, and stretches from the Absecon Inlet south to Ventnor City. These rules are proposed to establish new procedural and substantive standards for applications for development being proposed within the Tourism District. The next public hearing on the proposed regulations is scheduled for October 10, 2017 at the Atlantic City Convention Center at 6:00 PM. Written comments may be submitted by November 17, 2017 to CRDA.

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...

New Jersey Appellate Division Warns Planning Boards That Avoiding Controversy Risks Automatic Approval

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Posted in Development/Redevelopment

On August 30, 2017

When reviewing land use applications, “the rule of law is paramount and cannot be sidestepped to avoid deciding unpopular land use applications.” In issuing this reminder, the New Jersey Appellate Division recently affirmed the automatic approval of a site plan application that modified a planned unit development approval (PUD) dating back to 1997, underscoring the principle that land use applications are to be adjudicated on the merits in a timely fashion. In Shipyard Associates v. Hoboken Planning Board, et al., an unpublished decision, a developer was granted PUD approval in 1997 for a mixed use waterfront project that included residential high-rise apartment buildings, commercial retail space, a parking garage, and tennis courts. The developer constructed the project, except for the tennis facilities, and, in 2011, applied for site plan approval to build two additional residential towers instead of the tennis courts. Although the applicant was deemed complete in October 2011, the matter was not scheduled to be heard at a Planning Board meeting until approximately eight months later. In the interim, the City sued the developer seeking to enforce its perceived rights under the developer’s agreement for the 1997 PUD approval. Due to the filing of that lawsuit, when the Planning Board finally turned to the application in July 2012, the Planning Board refused to consider...

Mere Fact That Application Would Bring Development Closer Into Compliance With Zoning Code Insufficient to Warrant Grant of Site Plan Approval and Variance, N.J. Appellate Division Affirms

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Posted in Development/Redevelopment

On August 2, 2017

The New Jersey Appellate Division recently affirmed denial of an application for site plan approval and variance relief despite an applicant’s contention that the application’s issues identified by the Planning Board were too minor to justify denial of the application that would bring the subject property into conformity with the zoning code. Although unpublished and nonbinding, the decision confirms New Jersey courts’ broad deference to local boards in this state, making clear that if a land use board’s legitimate concerns are not addressed by an application, the mere fact that the application would bring a property into conformity with the local zoning code is insufficient to secure a variance under New Jersey’s Municipal Land Use Law. In World Wheat Foundation, Inc. v. Planning Board of the Township of Saddle River, et al., a church-based, not-for-profit organization, sought site plan approval and variance relief to convert a property that previously served as a residential facility for the elderly into a vocational school to assist Korean families with language and the arts. The previous facility ceased operations more than two years prior to the application. The property was situated in the Township’s Secondary Business Zone, in which the former residential facility was not a permitted use, but the proposed vocational school was permitted. The applicant also sought...

N.J. Appellate Division Affirms Default Approval of Substantially Complete Application for Redevelopment Project

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Posted in Development/Redevelopment

On July 7, 2017

The New Jersey Appellate Division recently affirmed a trial court’s grant of an automatic site plan approval for an 87-unit multi-family residential project with possible commercial space on the ground floor in Jersey City. The decision simultaneously sheds light on what it means for an application to be “complete” and when the Municipal Land Use Law’s proverbial 95-day stopwatch for the grant or denial of preliminary approval begins ticking. In Bright and Varick Urban Renewal Co. LLC v. Jersey City Planning Bd., after the City designated the subject property as an area in need of redevelopment and adopted a redevelopment plan, the designated redeveloper filed an application seeking site plan approval for the project. The City’s Principle Planner informed the redeveloper that it needed to submit an additional 12 outstanding items before the application would be considered. The redeveloper submitted 11 of the 12 outstanding items, and stated it would provide the twelfth item upon request. Thereafter, the Principle Planner confirmed in writing that the application was “substantially complete,” and requested the redeveloper make minor changes to its plans without mentioning the twelfth outstanding item. Two months later, the City had concerns about the density of the project, tabled the application for another approximately two months, and then ultimately denied the application due to the...

Appellate Division Holds UHAC Regulations Preempt Local Code Provisions on Affordability Controls for New Developments

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Posted in Development/Redevelopment

On June 22, 2017

In an unpublished decision entitled Avalon Princeton, LLC v. Princeton et al., the Appellate Division has affirmed that certain state affordable housing regulations preempt pre-existing municipal ordinances, setting a period of affordability controls for “at least 30 years” on new construction. Although not precedential, this decision provides insight on how courts may view some of the regulatory framework, particularly regarding municipal versus state regulation of newly constructed affordable units, and potentially forecasts much more flexibility for municipalities in controlling their current and future stock of affordable housing. In order to assure that affordable housing units remain affordable for a period of time, municipalities have long required that properties that are affordable to low- and moderate-income families be encumbered with some form of restrictive covenant running with the land for both rental and owner-occupied properties. The length of term of these restrictions have varied, based on the municipality and the nature of the units, but typically ran for 30 years from the date of first occupancy, and traditionally have automatically expired after that period. Following the introduction of the Fair Housing Act, these standards varied as COAH’s regulations were refined and developed over the course of the various iterations of the First, Second, and Third Round Rules. In 2004, however, the Housing and Mortgage Finance Agency...

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