Land Use Law Blog

News and Updates in Land Use Law Issues

A blog by attorneys
from Waters
McPherson
McNeill, P.C.

Permit Extension Act Extended One More Year But Only In Superstorm Sandy-Affected Counties

Posted on Friday, July 22, 2016 by Thomas J. O'Connor

On June 30, 2016, Governor Chris Christie signed Bill A3617 into law, which amends the Permit Extension Act of 2008 (“PEA”) and extends certain permits and approvals affecting the physical development of property located only    only   in the counties affected by Superstorm Sandy. These counties are: Atlantic, Bergen, Cape May, Essex, Hudson, Middlesex, Monmouth, Ocean, and Union counties.

The Permit Extension Act was originally signed into law on September 6, 2008, and was subsequently extended in 2010, 2012, and 2014. The Act suspends the expiration of an approval for a defined “extension period”. Depending on the original expiration date of the approval, the Act also limits the validity of the approval so that no approval can be extended more than six months beyond the one-year extension period. The previous 2014 PEA amendment extended some approvals through to December 31, 2015 and in other cases, up to June 30, 2016 (depending upon the remaining time on a permit when the legislation was enacted).

Bill A3617, introduced on June 16, 2016, now extends the expiring PEA by an additional year, limited to permits or approvals in the nine Superstorm Sandy-impacted counties. The bill’s Senate counterpart, S2390, was introduced four days later for projects within these counties. The new PEA extension period, at a minimum, runs through December 31, 2016, and as late as June 30, 2017, depending on the expiration date of the applicable permit.

Please direct questions or comments to Tom O’Connor at toconnor@lawwmm.com (201-330-7466).

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Meadowlands Development

Posted on Tuesday, December 08, 2015

If you have an interest in the Meadowlands, please read the attached Star Ledger story.   Our partner, Tom O’Connor, is featured prominently in the article, and can advise on all pertinent land use issues.   Please direct questions or comments to Tom O’Connor at toconnor@lawwmm.com or (201)330-7466.

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Despite Continued Litigation, New Jersey Affordable Housing Law Continues to Heavily Impact Private Residential Development

Posted on Wednesday, October 28, 2015 by James M. Spanarkel

Despite Continued Litigation, New Jersey Affordable Housing Law Continues to Heavily Impact Private Residential Development

One of the biggest uncertainties currently facing land owners seeking to develop residential or mixed use property in New Jersey, particularly in the more densely populated northern counties, is the ongoing determination of each municipality’s affordable housing obligation pursuant to the “Mount Laurel Doctrine”, and the impact these obligations will have on future development applications. Specifically, developers must consider carefully the potential number of affordable housing units they may be required to incorporate into such projects going forward.

Under the Mount Laurel series of New Jersey Supreme Court cases, all New Jersey municipalities are constitutionally required to actually take “affirmative” action to provide realistic opportunities to provide their “fair share” of affordable housing to satisfy the present and prospective regional need. In response, the State Legislature passed the Fair Housing Act (“FHA”) to create a procedure for municipalities to follow to ultimately meet their Mount Laurel obligations. The FHA in turn provided for the creation of the Council on Affordable Housing (“COAH”), a now essentially defunct state agency that was initially tasked with calculating each municipality’s respective fair share housing obligation, as rolled out over a series of three compliance “rounds” (from 1987 through 2025), and with overseeing and administrating municipal submissions of plans documenting their respective proposals for meeting these obligations.

Although COAH functioned relatively effectively during the first two rounds, a steady stream of litigation concerning regulations prescribing the methodology to be used to calculate municipal Third Round obligations (now, 1999-2025), and COAH’s ongoing failure to subsequently adopt valid regulations setting forth such a methodology, essentially overwhelmed COAH’s capacity to independently administer affordable housing requirements.

The New Jersey Supreme Court’s March 2015 Affordable Housing enforcement opinion (increasingly referred to as Mount Laure IV) saw the Supreme Court essentially divest COAH of its authority. Responsibility for setting municipal affordable housing obligations, and for ultimately evaluating and administrating each municipality’s proposed plan for meeting its respective obligation, has now been returned to the State’s Mount Laurel trial courts, for disposition in accordance with a declaratory judgment action procedure set forth by the Supreme Court in its March 2015 opinion and incorporated remand order. (221 N.J. 1)

Towns that had been seeking approval of compliance plans before COAH were authorized, in the Supreme Court’s March 2015 enforcement opinion, to file Declaratory Judgment Actions before the County Mount Laurel Judge for a final judgment declaring them compliant with Mount Laurel and essentially immune from the so-called “Builders’ Remedy” suits in which private developers can otherwise seek Court enforcement of affordable housing development opportunities.

Despite the ongoing uncertainty with respect to municipal Third Round affordable housing obligations, the Appellate Division of the Superior Court of New Jersey’s recent decision in Fair Share Housing Center v. The Zoning Board of the City of Hoboken, et al., (Appellate Docket No. 1535-12T2) (the “Fair Share case”) makes clear that private developers can and will be required to comply with state and local affordable housing law, even in urban municipalities which adopt affordable unit mandates as a matter of local policy rather than Constitutional compulsion.

In the Fair Share case, which centered upon the validity of residential zoning approvals held by a group of private developers that were conditioned on compliance with Hoboken’s affordable housing ordinance, the Appellate Division ultimately overturned the trial court’s decision that had invalidated the local ordinance on the incorrect grounds advanced by the developers that adoption of local affordable housing ordinances required approval from an essentially defunct COAH under the FHA.

In upholding Hoboken’s affordable housing ordinance, and clarifying that no state approval was required to adopt a municipal affordable housing ordinance, the Appellate Court noted that an urban municipality’s power to participate in the affordable housing process, though perhaps completely voluntary, was not suspended solely because of COAH’s failure to function as intended. The decision has created uncertainty in the affordable housing landscape in the urban setting, in addition to the on-going Declaratory Judgment actions filed by suburban communities, seeking judgments declaring them compliant with their Mount Laurel obligations, because each municipality is essentially left free to adopt its own variant of the Hoboken ordinance.

Despite the myriad of uncertainties surrounding New Jersey’s affordable housing laws, it is clear private developers and landowners, particularly in Northern New Jersey, will continue to be called upon by both local and state law to provide affordable housing units in conjunction with forthcoming residential projects, as municipalities continue to work towards meeting their Third Round fair share housing obligation. Accordingly, it is more essential than ever that property owners and developers engage skilled counsel to advise and guide them in navigating the ever evolving requirements of New Jersey affordable housing law in connection with real estate development projects moving forward.

This article can also be seen on the Meadowlands Chamber of Commerce's http://meadowlandsusa.com/2015/10/23/affordable-housing-development-implications/, and will be featured in the forthcoming edition of the Chamber's quartely magazine, "Meadowlands USA".

Waters, McPherson, McNeill, P.C. is a full service law-firm with a particular expertise in real estate development and all related matters. For more information, or to further discuss any of the issues discussed in this article, please contact James M. Spanarkel, Esq. at (201) 319-5740 or via email at js@lawwmm.com. For more information about Waters, McPherson, McNeill, P.C., please visit our website at www.lawwmm.com.

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New Legislation Restructures New Jersey Meadowlands Commission and NJSEA

Posted on Friday, February 06, 2015 by Thomas J. O'Connor

New Legislation Restructures New Jersey Meadowlands Commission and NJSEA

Governor Christie yesterday signed new legislation that will have sweeping effects on the future of the New Jersey Meadowlands.  The new law, known as the “Hackensack Meadowlands Agency Consolidation Act”, merges the New Jersey Meadowlands Commission (NJMC) into the New Jersey Sports and Exposition Authority (NJSEA).  The new agency will be known as the “Meadowlands Regional Commission”.

The legislation actually combines several initiatives that have been under consideration for a year or more.  The key elements of the multi-purpose legislation include:

Under the “Hackensack Meadowlands Agency Consolidation Act”:

  • The powers of the NJMC are to be transferred to the NJSEA, which will be renamed the “Meadowlands Regional Commission” (MRC).  The NJMC’s Board of Commissioners, which has operated since 1969, is to be dissolved effective immediately.
  • While earlier versions of the legislation had envisioned a 12 month transition period, no such transition is provided for in the bill as signed.  Nonetheless, pending applications and day-to-day operations administered by the commission staff should continue for the immediate future under the existing agency regulations.
  • The MRC will be responsible for all of the functions of both agencies, including the land use planning, solid waste management, and environmental protection responsibilities of the former NJMC, as well as the management of the 750 acre Meadowlands Sports Complex – stadium, race track, and America Dream project – of the renamed NJSEA.

Under the “New Jersey Meadowlands Tax Relief Act”:

  • A new source of funding for the Intermunicipal Tax Sharing Formula is to be generated by a three (3%) percent room tax on hotels located within the District.  The tax sharing formula is a financial mechanism, which has been in place since the Meadowlands District was established.  The formula is intended to equitably redistribute the tax revenues generated by new construction in municipalities that were zoned for greater development, to other municipalities that were zoned for landfills and environmental conservation as part of the comprehensive regional plan.  The new three (3%) percent hotel tax will relieve the tax burden of the seven (7) municipalities that had historically contributed as much as a combined $7,000,000 annually into the fund, while the other municipalities would continue to receive the tax sharing payments.

Under the “Hackensack Meadowlands Transportation Planning District Act”:

  • This portion of the legislation actually reinstates the State agency’s transportation district plan authority that was rescinded in early 2014.  This law permits the assessment of fees on future development to offset the impacts on the regional transportation network.  Rather than requiring off-site road improvements on a project-by-project basis, as traditionally done with new development, the district plan allows assessed fees to be pooled and applied to regional transportation improvements.  This law is retroactive to January, 1, 2014.

The 80 page bill also includes a controversial provision, which extends the authority of the MRC over Liberty State Park in Jersey City.

A major feature of this new law, which may eventually prove to have the most significant impact on developer’s looking at potential projects within the Meadowlands, is the ability of each of the 14 constituent municipalities to assume jurisdiction over the review and approval of site plan and bulk variance applications.  If a municipality elects to adopt the Meadowlands master plan and zoning regulations for lands within the Meadowlands District boundaries, these applications may now be reviewed by that municipality’s planning board, a power and a regulatory process that these municipalities have not exercised for the past 45 years.  If a municipality elects not to do so, the applications will continue to be reviewed by the MRC, as the NJMC previously did.  The MRC will retain jurisdiction in all cases over use variances and special exceptions (a/k/a conditional uses), and will also retain exclusive authority to designate redevelopment areas and adopt redevelopment plans.

In signing the bill, the Governor acknowledged that the legislation, which was hastily adopted at year end, is “imperfect in its current form”, and indicated that amendatory legislation is expected quickly to address shortfalls in the bill.  Ultimately, the devil is in the details, and it remains to be seen exactly how this bill, and the changes expected to follow, will affect the development community and all of the stakeholders in the Meadowlands District.

Please direct questions or comments to Tom O’Connor at toconnor@lawwmm.com.

 

Governor Christie yesterday signed new legislation that will have sweeping effects on the future of the New Jersey Meadowlands.  The new law, known as the “Hackensack Meadowlands Agency Consolidation Act”, merges the New Jersey Meadowlands Commission (NJMC) into the New Jersey Sports and Exposition Authority (NJSEA).  The new agency will be known as the “Meadowlands Regional Commission”. 

 

The legislation actually combines several initiatives that have been under consideration for a year or more.  The key elements of the multi-purpose legislation include:

 

Under the “Hackensack Meadowlands Agency Consolidation Act”:

 

·         The powers of the NJMC are to be transferred to the NJSEA, which will be renamed the “Meadowlands Regional Commission” (MRC).  The NJMC’s Board of Commissioners, which has operated since 1969, is to be dissolved effective immediately. 

·         While earlier versions of the legislation had envisioned a 12 month transition period, no such transition is provided for in the bill as signed.  Nonetheless, pending applications and day-to-day operations administered by the commission staff should continue for the immediate future under the existing agency regulations.

·         The MRC will be responsible for all of the functions of both agencies, including the land use planning, solid waste management, and environmental protection responsibilities of the former NJMC, as well as the management of the 750 acre Meadowlands Sports Complex – stadium, race track, and America Dream project – of the renamed NJSEA.

 

Under the “New Jersey Meadowlands Tax Relief Act”:

 

·         A new source of funding for the Intermunicipal Tax Sharing Formula is to be generated by a three (3%) percent room tax on hotels located within the District.  The tax sharing formula is a financial mechanism, which has been in place since the Meadowlands District was established.  The formula is intended to equitably redistribute the tax revenues generated by new construction in municipalities that were zoned for greater development, to other municipalities that were zoned for landfills and environmental conservation as part of the comprehensive regional plan.  The new three (3%) percent hotel tax will relieve the tax burden of the seven (7) municipalities that had historically contributed as much as a combined $7,000,000 annually into the fund, while the other municipalities would continue to receive the tax sharing payments.

 

Under the “Hackensack Meadowlands Transportation Planning District Act”:

 

·         This portion of the legislation actually reinstates the State agency’s transportation district plan authority that was rescinded in early 2014.  This law permits the assessment of fees on future development to offset the impacts on the regional transportation network.  Rather than requiring off-site road improvements on a project-by-project basis, as traditionally done with new development, the district plan allows assessed fees to be pooled and applied to regional transportation improvements.  This law is retroactive to January, 1, 2014.

 

The 80 page bill also includes a controversial provision, which extends the authority of the MRC over Liberty State Park in Jersey City.

 

A major feature of this new law, which may eventually prove to have the most significant impact on developer’s looking at potential projects within the Meadowlands, is the ability of each of the 14 constituent municipalities to assume jurisdiction over the review and approval of site plan and bulk variance applications.  If a municipality elects to adopt the Meadowlands master plan and zoning regulations for lands within the Meadowlands District boundaries, these applications may now be reviewed by that municipality’s planning board, a power and a regulatory process that these municipalities have not exercised for the past 45 years.  If a municipality elects not to do so, the applications will continue to be reviewed by the MRC, as the NJMC previously did.  The MRC will retain jurisdiction in all cases over use variances and special exceptions (a/k/a conditional uses), and will also retain exclusive authority to designate redevelopment areas and adopt redevelopment plans.

 

In signing the bill, the Governor acknowledged that the legislation, which was hastily adopted at year end, is “imperfect in its current form”, and indicated that amendatory legislation is expected quickly to address shortfalls in the bill.  Ultimately, the devil is in the details, and it remains to be seen exactly how this bill, and the changes expected to follow, will affect the development community and all of the stakeholders in the Meadowlands District.

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Amended Economic Opportunity Act Advances

Posted on Friday, March 21, 2014 by Thomas J. O'Connor , Judy Y. Kim

The “Economic Opportunity Act of 2014, Part 1” is working its way through State Senate and Assembly committees. The new bill amends the New Jersey Economic Opportunity Act of 2013 by focusing on developer incentives under the Economic Redevelopment and Growth (ERG) Program, which is one of two main programs expanded by the 2013 Act. Read Entire Article

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Recent Amendments to State Redevelopment Law Statute

Posted on Tuesday, November 05, 2013 by E. Neal  Zimmermann , Judy Y. Kim

On September 6, 2013, Governor Christie signed into law Assembly Bill 3615, which made several important changes (the “Amendments”) to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A:1 et seq. (the “Redevelopment Law”). Read Entire Article

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PLANNING SPRING CONSTRUCTION? TAKE STOCK OF YOUR DEVELOPMENT APPROVALS TO SEE IF YOUR PROJECT IS “SHOVEL READY”

Posted on Wednesday, March 27, 2013 by Thomas J. O'Connor

Perhaps it’s a sign of the long-awaited economic recovery. Maybe your project has been on hold while you have been laboring through years of complex environmental cleanup, or you have been unable to secure financing for your facility expansion. But now, finally, you are ready to start construction. You may be interested in acquiring a property for development, or you just want to have the peace of mind that your project is “shovel ready” when the time is right. Whatever the reason, it is critical that you understand the benefits of the Permit Extension Act – what it covers, and perhaps more importantly, what it doesn’t. Read Entire Article

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