New Jersey Zoning Watch

In one of the battlegrounds over redevelopment and the use of eminent domain in the state, the Appellate Division has ruled that the City of Long Branch failed to establish sufficient evidence that certain residential properties in the Beachfront North redevelopment zone met the criteria for an area in need of redevelopment. The court also dismissed other contentions of the homeowners, including claims of conflict of interest of the City Attorney and upheld the City’s delegation of authority to commence condemnation proceedings to the designated redeveloper. Long Branch v. Anzalone, A-0067-06T2 et als. (N.J. App. Div. August 7, 2008).

According to the Asbury Park Press:

The Appellate Division of Superior Court, relying on the 2007 decision in the Gallenthin Realty Development Inc. v. the Borough of Paulsboro case, found that Long Branch’s 1996 report did not meet the heightened standard for blight and so it reversed Lawson’s decision appointing condemnation commissioners for the affected parcels.

“We agree with appellants that material facts are in dispute regarding not only whether substantial evidence supports a finding of a need for redevelopment,” but also regarding other issues such as whether taking that neighborhood is integral to the overall redevelopment plan and whether its inclusion is necessary in the redevelopment plan.

Also, Lawson will determine whether taking the properties represented a change to the redevelopment plan that would have required it to be readopted, and thus require a new series of public notices and hearings.

MTOTSA maintains it was always told that its neighborhood was safe and would be redeveloped as “infill,” which it took to mean as development on existing or available properties. Absent a definition, however, Lawson will have to define that term as well, the appellate panel said.

“We agree with appellants that . . . the city did not find actual blight‚ under any part of the law, ‚that the record lacked substantial evidence that could have supported the New Jersey Constitution’s standard for finding blight and that the absence of substantial evidence of blight compels reversal,” the appellate panel found.

For the full Asbury Park Press article, click here.

For the Star Ledger article, click here.

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Somerville has decided to reissue a request for proposals for redevelopment of the former Somerville landfill bordered by Route 206 and the Raritan Valley rail line. The RFP was sent out to dozens of builders but only one response was received by the March 2008 deadline.

The redevelopment area includes the 112-acre abandoned landfill which is proposed to be transformed into a transit-oriented retail and residential development.

For a copy of the Star Ledger article, click here.

For a link to an overview of Somerville’s redevelopment areas, click here.

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On Wednesday, July 16, 2008, Philip J. Morin III, Special Counsel in the Firm’s Real Estate Department, will be on the faculty for this one-day Lorman Educational Services Seminar that will discuss land use law, environmental issues and the development approval process in New Jersey. Panelists will also address the status of the third-round affordable housing regulations, potential amendments to the redevelopment laws, and review recent court decisions impacting development issues.

Mr. Morin will present several lectures throughout the day, including “Overview of Development and Land Use Law,” “Land Use Procedures and the Public Hearing,” “Ethical Considerations” and “Recent Trends and Municipal Government Perspectives.” Also on the faculty are Mary Elizabeth Warner, Esq., Real Estate Counsel for Quick Chek Corporation; Brian McMorrow, P.E. of Bohler Engineering, PC and Paul Grygiel, AICP, P.P., of Phillips Preiss Shapiro Associates, Inc.

The seminar will take place in the Holiday Inn Cherry Hill-Philadelphia in Cherry Hill, New Jersey from 8:30 a.m. to 4:30 p.m. NY and PA CLE credit is available.

For for information and to register for this event, please click here.

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In a frenetic day of wheeling and dealing on the $32+ billion State Budget, two key bills that we have been closely tracking received approval from both houses of the legislature, sending them to Governor Corzine’s desk with the expectation that both will be signed in short order.

Affordable Housing Policy Reform

A-500/S-1783, which amends portions of the Fair Housing Act, the Local Redevelopment and Housing Law and the Administrative Procedure Act, provides significant changes to New Jersey’s approach to affordable housing requirements. Central to the bill is the elimination of Regional Contribution Agreements (RCAs) except in specific regional planning areas such as the Highlands, Pinelands, Ft. Monmouth, Meadowlands and Atlantic City region. If a municipality outside of these regional planning areas has received COAH or court approval to proceed with a RCA, they may do so. If it has not received final approval, it must make provision for constructing its fair share obligation within its borders.

The legislation anticipates that the elimination of RCAs will be counterbalanced by a new statewide 2.5 percent development fee which will be imposed on “all” non-residential development (with some exceptions such as non-residential development within a designated transit village area, structured parking facilities, etc.) including expansion of existing facilities. Under the provisions of the bill, the development fee must be paid prior to the issuance of a Certificate of Occupancy. The legislation contemplates payment under protest and the ability to challenge the assessment of the “equalized assessed value” which is the basis for imposition of the fee. This legislation effectively eliminates the requirement under current COAH regulations that a non-residential developer provide an affordable unit for every 16 jobs purportedly created and pre-empts any current municipal development fee ordinances.

Municipalities that petition COAH for substantive certification of a housing plan can create dedicated escrow funds for the revenues generated from new non-residential construction which must be spent on meeting that municipalities affordable housing needs within a four-year period. Those municipalities that have not applied for substantive certification must send the fees collected to a statewide Affordable Housing Trust Fund, which will be administered by DCA for the creation of affordable housing throughout the state.

The legislation also requires state agencies, when preparing rule proposals, to include a “Housing Affordability Impact Analysis” and “Smart Growth Development Impact Analysis” to force regulatory agencies to focus on whether proposed regulations will have an impact on the affordability or availability of housing.

Other amendments include requiring the replacement of affordable housing on a 1:1 basis when a redeveloper eliminates existing affordable housing in constructing or assembling a redevelopment project and mandates that the comparable housing be located in or in close proximity to the redevelopment; mandating a 20 percent affordable housing component in designated transit village and urban transit hub areas while eliminating the 2.5 percent non-residential development fee for such projects; and mandatory inclusionary development requirements for property that is rezoned from commercial or industrial to residential. The legislation also encourages that financial incentives, including density bonuses, be incorporated into a municipality’s fair share/housing plan.

Permit Extension Act

A-2867/S-1919 provides for the tolling of many types of development permits and government approvals from January 1, 2007 to July 1, 2010. Under no circumstances will approvals tolled under this legislation exend further than six months past the July 1, 2010 extension period. Notable exceptions that are not tolled by this Act include approvals for development in “environmentally sensitive areas” and flood hazard area permits, unless a project has already commenced.

We will be providing a more comprehensive overview of the final versions of these legislative proposals once they are signed into law by Governor Corzine.

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With the Permit Extension Act already under fire despite substantial legislative support, the Sierra Club has begun an assault on the entire Smart Growth Economic Development Coalition’s economic stimulus package, referring to it as the “Dirty Dozen.”

The Builders Association and their allies are releasing a package of bills they call an economic stimulus package. In fact, what the bills would do is overturn environmental laws, undermine good planning, promote sprawl and give tax breaks and public subsidies to wealthy developers at a time when the state of New Jersey is going broke.

This package of bills will put sprawl on steroids and allow for the paving over of half of New Jersey’s open spaces.

The bills in the package are taken from the Department of Community Affairs’ (DCA) Housing Task Force reports, which were written in secret without any input from the public or environmental or citizens’ groups. They include:

1. The Permit Extension Act — This bill would extend all permits for six years and revive those that have expired within the past two years, undermining the ability of the state to implement new environmental regulations, building codes, or local zoning ordinances and indiscriminately promoting building, regardless of whether the project is a good one or a bad one.
. . . .

For the Sierra Club’s critique of all 12 legislative proposals in an Op-Ed entitled “Builders Gone Wild” at the Asbury Park Press website, click here.

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With the latest bleak data on new home construction and sales in New Jersey coupled with an already soft office market, it is no surprise that there has been strong, bipartisan support of the Permit Extension Act, which is designed to provide relief for projects that have been stalled due to economic conditions as well as new (NJDEP) or uncertain (COAH) regulatory requirements. The Assembly version of the bill already has 43 co-sponsors and is moving swiftly through the committee process with wide-spread support from a coalition of business, industry, housing, community activists, municipal officials and smart growth advocacy groups called the Smart Growth Economic Development Coalition. The Senate version is expected to be heard in committee on June 12.

According to an article in Monday’s Home News Tribune:

A bill to extend New Jersey’s approved construction permits until the year 2012 would support smart growth, remediate contaminated sites, boost the State’s lagging economy and uphold environmental regulations, according to the Smart Growth Economic Development Coalition.

The proposed legislation before the New Jersey State Legislature has widespread support among business and industry leaders, as well as municipal officials, community groups and housing and community activists, and is receiving bi-partisan support from the Legislature, including at least 43 sponsors within the Assembly, and 15 sponsors within the Senate thus far.

. . . .

The Coalition — a collaborative group created in 2007 and consisting of statewide business and industry organizations, plus community groups and elected leaders — supports the Permit Extension Act now before both houses of the Legislature. The Permit Extension Act bill is expected to be heard before Assembly and Senate committees on June 5 and June 12, respectively.

“Unless this legislation is passed, many beneficial projects - including proposed developments on urban redevelopment, transit hub, portfield and brownfield sites - will fail to move forward, and those communities and their residents will pay the price,” said Dianne R. Brake, president of PlanSmart NJ.

However, the environmental community has rallied to fight this basic lifeline to the business community as if it were a bill to abolish the NJDEP. As it is as important to understand the rationale to objections to a proposal as it is to understand the reasons for it, here are a few less than complementary articles that debate the proposal.

From the Home News Tribune - “Just Like Old Food, Old Permits Go Bad” and State DEP Head Not A Fan of Permit Extension Act.

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A bill that will substantially amend affordable housing requirements in New Jersey passed the State Senate Budget and Appropriations Committee with a 7-0 vote yesterday. According to the Star Ledger:

A major amendment would allow developers who take part in the construction of proposed “transit hubs” or “transit villages” in 19 cities and towns — centers with housing for all income levels, retail and office space — to avoid paying a 2.5 percent fee on the value of new commercial development. Sen. Raymond Lesniak (D-Union), the bill’s sponsor, said the fee break was proposed out of a concern the fee would hinder development of the hubs.

Among the municipalities where the hubs are proposed are Morristown, South Amboy, South Orange, Rahway, Metuchen, Bloomfield, Bound Brook, Cranford, New Brunswick, Jersey City, Netcong and Elizabeth.

Other amendments would extend the same fee break to commercial developments in Newark and Jersey City and require the state to consider the amount of protected land in a town when deciding how much affordable housing should be constructed there.

Doria told the committee he dislikes the fee break for transit hub developers. He said 20 percent of hub housing must be affordable and any fee collected could be expected to go toward funding that housing. “I think it is a mistake to take the transit villages out,” he said.

For the full article, click here.

For the Asbury Park Press article, which contains more detailed discussion of the bill’s key provisions, click here.

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According to a timely e-mail update from Conor Fennessey of the New Jersey Apartment Association, S-757 was not voted out of committee on Monday.  The vote of the Senate Community and Urban Affairs Committee was 1-3-1, with Senator Rice casting the only affirmative vote.  Senator Rice advised during the public session that the bill will be back in some form on the Committee’s May 15 agenda.

For a copy of the draft committee statement on the bill, including comments on the proposed amendments to the bill, click here: S-757 Draft Committee Statement.

For more of the background regarding the bill, Gregory Volpe has an excellent story in today’s Courier Post.   A different version of the article with more commentary about the behind-the-scenes battle over competing versions of redevelopment reform appears in the Asbury Park Press.

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The City of Newark has prepared an elaborate concept plan for approximately 50 acres of property owned by the City, other public agencies and private entities surrounding the Broad Street Train Station in Newark and has invited developers to submit responses to a “Request for Expressions of Interest” (”RFEI”),  focused on transit-oriented development in close proximity to the NJIT and Rutgers-Newark campuses. 

The deadline for submission of a response to the RFEI is May 12 at 4:00 p.m.

Here is the text of the original advertisement for the RFEI:

The City of Newark, New Jersey (“City”) invites qualified developers or development teams (“Respondents”) to respond to this Request for Expressions of Interest (“RFEI”) with conceptual development proposals and statements of their qualifications to be selected to develop one or more parcels in the Broad Street Station District (“District”).  The RFEI is being solicited through the Fair and Open Process in accordance with The New Jersey “Local Unit Pay to Play” Law N.J.S.A. 19:44A-20.4 et seq.

The Booker Administration has identified the revitalization of the Broad Street Station District as a top priority area in downtown Newark.  The District is bounded generally by Newark Street to the west, Clay Street East to the north, the Passaic River to the east and Central Avenue to the south.  The District is a priority reinvestment area of the downtown with a range of large-scale, transit-oriented development opportunities.  Currently, the District includes an estimated 50 acres of developable properties, most of which are within a 5-10 minute walking radius to New Jersey Transit’s Broad Street Station, the Newark Light Rail line, two subway station stops, the vibrant Downtown campuses of Rutgers and NJIT, cultural institutions and an increasingly accessible Passaic Riverfront.

For a link to the City’s website with a copy of the RFEI and related exhibits and information, click here.

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As promised, here are the proposed amendments to Sen. Ronald Rice’s bill on redevelopment and eminent domain. See Amendments to S-757.  This bill is scheduled to be discussed by the Senate Community and Urban Affairs Committee on Monday, May 5.

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