New Jersey Zoning Watch

In putting together your “keeping on top of the latests land use trends” reading list, include the following two articles written by Andrea Alexander of The Record. Both address some of the challenges and opportunities facing communities as a result of the “green” movement.
In an article from September, Ms. Alexander highlights a recently adopted ordinance in Wayne, New Jersey, that limits the development of wind turbines near residential neighborhoods, schools or day care centers. According to the article:

The Township Council unanimously adopted the measure after a heated debate Wednesday night: Are turbines unsightly intruders with potentially damaging health effects? Or should they be accepted as just part of the skyline of an energy-independent future?

“When you look out your back door, you don’t want to look at a nuclear power plant, you don’t want to look at a wind turbine,’’ Mayor Christopher Vergano said today. “We are protecting the values of residential properties by keeping them [at] a certain setback.’’

Wayne is not the first community to address the issue, however:

The township isn’t the first in the state to adopt rules to keep wind turbines away from homes. Brick in Ocean County adopted an ordinance in April that allows turbines only in business and industrial zones. At least five towns in the state have adopted ordinances to set guidelines for the location of wind turbines. The regulations generally require setbacks to keep the renewable energy source away from neighbors.

Hillsborough in Somerset County allows residents, farmers and business owners to put up turbines on lots that are greater than 10 acres. Galloway Township in Atlantic County restricts turbines to one-acre residential lots, with a setback from the property line equal to the height of the structure.

Under Wayne’s ordinance, Mayor Christopher Vergano said, turbines could be permitted along sections of Routes 23 and 46 and in the industrial areas off the West Belt Parkway.

Ms. Alexander also wrote an article this week on the “green” movement and how municipalities are taking it into consideration in land use planning.

Planning experts say slowing global warming goes beyond putting solar panels on homes and wind turbines on industrial lots. It’s going to take a gradual — but decisive — shift in your way of life.

. . . .

A green community will position new homes near transit, parks and stores, or bring those necessities to existing neighborhoods.

Transportation is the largest contributor to greenhouse gases, and “the most important part about mixing land uses is: People tend to use their cars less, and that is what living green is all about,” said Debbie Alaimo Lawlor, chief of Sustainability and Economic Growth for the New Jersey Meadowlands Commission. The NJMC has land-use authority over parts of 14 communities in Bergen and Hudson counties.

Westwood accepted the connection years ago in zoning the heart of its downtown as a “special pedestrian environment.” The zoning bans new restaurants and sports clubs — destinations people drive to, then leave.

But it welcomes service businesses such as the camera shop, florist and dry cleaners so one walk downtown can fill several errands.

Green planning also was boosted there by another essential: a train station. Houses closest to the station are selling the fastest and holding their value in a down market.

While I’m not particularly a fan of labeling restaurants and fitness centers as “anti-green,” the article does make one re-think how “reducing our carbon footprint” interacts with zoning ordinances in older downtowns which are probably relics of the 1960s (both the downtowns and the zoning).

The article also includes discussion of how the state legislature, regional planning authorities like the Meadowlands Commission and individual municipalities are attempting to provide incentives for (or some might say, force) green development.

For the full article, click here.

The New Jersey State League of Municipalities, in a bulletin to all New Jersey mayors dated today, has laid out the briefing schedule for the current challenges to the Council on Affordable Housing’s “third round” regulations. The initial brief of the League will be due on January 4, 2009. The State’s brief is not due until March 5, 2009. No date for oral argument has been set.

For the remainder of the briefing schedule and a discussion of the League’s reaction to the court’s denial of its request for a stay of the December 31st deadline for submission of municipal affordable housing plans, please click here: NJSLOM 10-8-08 Letter Re: COAH Motion for Stay; Briefing Schedule

On Tuesday, a state appeals court denied a motion filed by the New Jersey State League of Municipalities (”League”) to stay (or delay) the requirement under the latest round of regulations from the Council on Affordable Housing (”COAH”) that municipalities must submit a detailed plan to provide affordable housing by December 31, 2008.

According to an on-line report from the Star Ledger, Department of Community Affairs Commissioner Joseph Doria was pleased with the ruling:

“By denying a stay of the December 31st deadline, the court has not only validated COAH but also paved the way, yet again, for us to move forward in our efforts to provide New Jersey residents with the affordable housing opportunities they need,” he said.

The League also reacted predictably:

“We are disappointed, but not surprised by the court’s action,” said League Director William Dressel. “Unfortunately the end result will be towns seeking Council on Affordable Housing certification will have to prepare plans based on a faulty methodology, a discredited vacant land analysis and the knowledge that further amendments, which will require adjustments to plans, are to be proposed in the upcoming months.”

The court did not decide upon the merits of the League’s overall appeal of the validity of the regulations. However, it is highly unlikely that a decision on the merits will be reached prior to the deadline for filing a plan for substantive certification. Should a municipality choose not to file a plan, they will be potentially exposed to “builder’s remedy” litigation in state court, in which a court can mandate development with an affordable housing component.

Paul Mulshine, a columnist with the Star Ledger, wrote a particularly distressing piece in Tuesday’s paper regarding the plight of one homeowner and her losing battle with the state over burdensome environmental regulatory requirements as a result of enactment of the Highlands Act in 2004.

While it is important to focus on the macro issues of preserving water quality and open space that were the driving force for many regulators and legislators who supported the Act, one must not lose sight of the burden the Act has put upon many property owners who bought property intending for it to be the nest egg for their family and who ended up with a goose egg. Furthermore, funding sufficient to compensate landowners for their losses is not yet available and, given the current economic climate, will not likely be part of the state’s toolkit for some time.

An article from this weekend’s Courier Post highlights the fact that alternative energy sources, such as wind power, are not exactly receiving wide-spread acceptance under local zoning codes in New Jersey. According to the article, environmental organizations such as the Sierra Club are supporting legislation which would make substantial changes to state law to encourage the development of windmills and solar power.

The story refers to several legislative proposals, including a bill (S1303/A3062) pending in the legislature that would codify windmills and solar power facilities as “inherently beneficial uses” under the Municipal Land Use Law. Passage of this amendment to the MLUL would put such alternative energy facilities into a narrow classification of uses that satisfy the “positive criteria” in a “use” variance analysis. Applicants proposing such facilities would still have the burden of proving to a land use board that the proposed use does not have a negative or detrimental impact on the zoning plan for the community.

One significant bill (S1538/A2859) not mentioned in the story involves allowing the installation of solar and wind generation facilities on certain preserved farmlands and includes solar and wind energy generation on commercial farms as protected activities under the “Right to Farm Act.” This bill is pending in the Assembly after passing the Senate in June in a 36-0 vote, with 4 senators not voting.

The New Jersey Supreme Court heard oral argument this week to decide whether the Highlands Act unjustly barred development of a 93-acre lot retroactively without providing out just and proper compensation.

According to the Asbury Park Press:

Landowners OFC, LLC received approval from Washington Township to subdivide the lot to build 26 homes in 1999 — five years before the Highlands Act, which aims to limit development to protect drinking water supplies, became law. But an error in approving a water supply permit by a township official delayed the application, resulting in the project’s final approval missing the development deadline set under the 2004 law.

While the Justices reserved decision, at least two members of the panel seemed sympathetic to the plaintiff’s claims:

Looking at how OFC’s permits were botched and TDRs were not available to them, Associate Justice Barry T. Albin said the totality of failure resulted in “a developer caught into this intricate governmental mess.” Albin earlier, however, said that while the situation may be unequitable, the company’s due process rights were not necessarily violated.

“I don’t care where you lay the blame, you certainly can’t lay it at the foot of the plaintiff because they had nothing to do with it,” added Associate Justice Roberto Rivera-Soto.

For the full article, click here.

For the Appellate Division opinion in OFP, LLC v. State of New Jersey, finding that the plaintiff failed to pursue a hardship waiver and, thus, failed to exhaust its administrative remedies, click here.

On Friday, the Appellate Division rejected a request pending since last year from the Fair Share Housing Center to appoint a special master to to facilitate the drafting and implementation of regulations to guide the state’s affordable housing policy. The New Jersey State League of Municipalities had opposed the request for a special master. As a result, litigation challenging the latest iteration of the affordable housing regulations as arbitrary and not backed by sufficient factual data will continue. The appellate panel did not address a similar request for a special master which is being pursued by other litigants in their challenge to COAH’s regulations.

A press release from the Department of Community Affairs hailed the ruling as a “positive step forward”.

For more, information, read the Star Ledger article on nj.com here.

Note: This entry was corrected to clarify that the League has not requested the appointment of a special master, and has actively opposed such an appointment. We thank Michael Cerra, Senior Legislative Analyst at the League, for clarifying this point.

Phil Morin, Special Counsel in Saul Ewing’s Real Estate Department, will participate in a “town hall” meeting in Summit, New Jersey, beginning at 7 p.m. on Thursday, October 16 entitled: “Mount Laurel 2008: What the overhaul of the state’s affordable housing law means to your municipality.”
The meeting is being hosted by the members of State Legislative District 21 - State Senator Tom Kean Jr., Assemblyman Eric Munoz, M.D., and Assemblyman Jon M. Bramnick - and will address the following topics relating to the Fair Housing Act and regulations promulgated by the Council on Affordable Housing:

Does your municipality have the information it needs to submit its 3rd Round Affordable Housing Plan to the Council on Affordable Housing (COAH) by December 31, 2008?

What impact will the pending legal challenges have on the COAH regulations?

The meeting will held in Council Chambers, City Hall in Summit, 512 Springfield Ave., on Thursday, October 16 from 7 p.m. to 8:30 p.m. to discuss the impact and the implementation of the new fair share housing requirements promulgated by the Department of Community Affairs.

The following panel will be on hand to provide information and to also answer your questions on the Council’s interpretation of the new rules and implications of A500 as well as related municipal planning and compliance issues:

Melissa J. Orsen, Esq., Chief Counsel - New Jersey Council on Affordable Housing

Philip J. Morin III, Esq., Special Counsel - Saul Ewing LLP, Zoning, Land Use and Approvals Practice Group

Jeff Janota, AICP, P.P., Senior Associate-Planning - Birdsall Engineering, Municipal Planning Services

Get the information you need to understand the recent changes to the Fair Housing Act and what it means to your community. The event is geared to elected and municipal officials, including zoning and planning board members, counsel and staffs, however, the forum is open to members of the business community and the public at large.

If you would like to attend, please RSVP by October 13 to one of the following legislative offices:

senkean@njleg.org (908) 232-3673
asmmunoz@njleg.org (908) 918-0414
asmbramnick@njleg.org (908) 232-2073

At its meeting on Monday, September 22, the Council on Affordable Housing (”COAH”) voted to adopt several amendments to the affordable housing regulations which were proposed on May 6. These amendments will supplement the current “third round” rules, which were effective as of June 2. Notice of adoption will appear in the next edition of the New Jersey Register and the amendments will be effective as of October 20, 2008.

COAH also voted to propose a new regulation exempting homeowners from fees when rebuilding their home after a fire, flood or natural disaster. The Council also approved a waiver of an affordable housing development fee as a result of the destruction of a home in Franklin Township, an issue that had received substantial publicity and which prompted the proposed amendment.

The New Jersey League of Municipalities has provided a recent update regarding the status of the numerous legal challenges which have been filed opposing the regulations adopted in June which are pending before the appellate division. The League will seek, among other relief, a stay of the December 31, 2008 deadline for municipalities to submit their affordable housing plan to COAH.

One municipality has attempted to attack the regulations requiring the municipal obligation to provide affordable housing as an “unfunded mandate.” The Council on Local Mandates is the latest battleground in which a muncipality is challenging the regulations.

In an effort to encourage municipal buy-in to the Highlands master plan, the Highlands Council has agreed to negotiate extensions of up to one year for a municipality to submit its fair share housing plan under the newly-enacted regulations adopted by the Council on Affordable Housing - so long as the municipality adopts the recommendations contained within the Council’s master plan. However, the Department of Community Affairs has not yet approved the plan, which leaves Highlands municipalities in limbo with three months to the deadline for filing a third round plan.

According to the Daily Record:

The New Jersey Highlands Council on Thursday gave its executive director Eileen Swan the ability to negotiate an agreement with the state Council on Affordable Housing that would give communities that announce their intention to conform to the master plan an additional year to draw up new housing plans to meet their COAH obligations.

For the full article, click here.

However, the Star Ledger is reporting that DCA has not formally approved this agreement.