New Jersey Zoning Watch

The Daily Journal is reporting that a Cumberland County trial court invalidated Vineland’s revised master plan and subsequent zoning changes as meetings involving an ad-hoc committee (which included four planning board members) appointed to provide suggestions on updating the master plan failed to comply with the Open Public Meetings Act. 

The court found that the failure to provide notice of the committee’s 16 work meetings between April 2005 and September 2006 was fatal to the process.

From the Daily Journal article:

Lakewood-based developer Rudy’s Airport LLC filed a lawsuit in late 2006 seeking to invalidate the master plan. . . . Rudy’s Airport LLC owns a 180-acre former landing strip off Weymouth Road near Willow Grove Lake. The company had proposed building about 360 age-restricted homes on the property. Current zoning rules limit the number of homes to one per 2.5 acres.

The developer alleged the city violated statewide land-use law by allowing the committee to create revisions to the master plan. Rudy’s Airport LLC also alleged the city violated the Open Public Meetings Act when it did not allow the public to attend its meetings. “The idea of the Open Public Meetings Act is, not only are you allowed to make public comments, but you’re allowed to observe the process,” argued the developer’s attorney, Kevin D. Sheehan of Parker McCay in Marlton. “If you can’t observe the process, you can’t be a meaningful participant when it’s time to make public comment.”

Vineland Planning Board Solicitor Frank DiDomenico argued public notice wasn’t required because the committee merely advised the Planning Board and didn’t make any decisions regarding the master plan.

The City has not yet determined whether it will seek a stay of the trial judge’s ruling and appeal or attempt to salvage the master plan through additional public hearings.

While I have not had the opportunity to review the judge’s ruling as it was an oral opinion from the bench, it appears that the judge broadly construed the OPMA in finding that an ad-hoc committee which contained less than a majority of planning board members was in violation of the public meeting notice requirements. 

The ruling, as reported, appears to be a “win” for property owners, developers, citizen activists and any other interested party who claims that key decisions on land use policy have been predetermined before the formal master plan public hearing process has begun.  From the municipal government perspective, it severely constrains a public entity from a process standpoint in that it appears to require that even advisory committees, with no power to take formal action or adopt policy, provide public notice of all meetings.   Here, while Vineland held seven public hearings prior to the master plan adoption, this was not enough to cure the apparent OPMA violation.

However, this may only be the first ruling in a long legal battle.  Before definitive conclusions can be drawn about the impact of this decision, the court’s opinion and the underlying legal rationale for the decision must be carefully examined.  Regardless of the basis for the decision, since this is an unreported decision of a trial court, board members, elected officials, property owners and activists need to put the ruling into context as it has no binding effect on other communities at this point.

For the full Daily Journal article, click here.

For the Press of Atlantic City article on this case, click here.

Editor’s Note:  It appears that the City will appeal the trial judge’s ruling.  See the March 25 Press of Atlantic City article here.

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As developers contemplate a slowing housing market, NIMBY-ism continues to trump sound, constitutionally-mandated land use policy and New Jersey refocuses on its lack of affordable housing, will Mt. Laurel suits be on the rise?  While the Appellate Division in In the Matter of the Adoption of N.J.A.C. 5:94 and 5:95 by the New Jersey Council on Affordable Housing, provided for a stay on builder’s remedy lawsuits against municipalities “whose application for substantive certification is affected by the decision,” the stay apparently does not apply to municipalities who did not have substantive certification of a second round plan and who failed to file an application for substantive certification under the invalidated third round regulations.  

Thus, given that many municipalities failed to obtain substantive certification of a second round plan or file an application for the third round, it is a question worth pondering given the dynamics of an economic slowdown coupled with newly-introduced regulations from the Council on Affordable Housing (”COAH”) designed to implement the “third round” obligations of municipalities to provide constitutionally-mandated affordable housing which impose onerous requirements such as one affordable unit for every four newly-constructed market rate units.

The proposed regulations require a substantially greater contribution toward affordable housing by municipalities, particularly growing suburban and rural communities around the state, in contrast to the prior version of the third round rules.  Municipalities were informed of the key provisions of the new regulations and encouraged to adopt inclusionary zoning ordinances in a letter from COAH on December 24, 2007.

Two recent media reports involving municipalities in Union County, Roselle Park and Cranford - both communities which did not receive substantive certification of fair share affordable housing plans from COAH, which allows developers to proceed directly to litigation in Superior Court following good faith negotiations with the municipality rather than through an administrative proceeding before COAH - demonstrate that developers may be less willing to negotiate over an extended period of time in an uncertain market and will not be shy about using litigation to implement development plans which include an affordable housing component but which are alleged to be improperly denied or interminably delayed in the municipal review process.

While both cases involve similar claims by the plaintiff-developers that the municipalities have not complied with the mandate under the New Jersey Constitution to provide affordable housing and both involve designated redevelopment areas with adopted redevelopment plans, the cases appear to be about the form and density of the affordable housing provided as opposed to examples of deliberate exclusion.  Based upon media reports, the issue in the Roselle Park litigation seems to be over a disagreement with the type of housing.  The Borough’s plan contemplates for sale condominiums and retail uses for a former industrial site while the developer wants to built “luxury” apartments. 

In Cranford, the developer apparently worked with the municipality to develop a redevelopment plan and originally agreed upon a number of units which included a density bonus for “green” construction, but has attempted to renegotiate the terms of the plan based upon economic and market conditions.

While the Roselle Park case has proceeded past the initial motion phase and the court had referred the case to mediation, it appears that, based upon media reports, the municipality is firmly committed to fighting for its development plan.

In Cranford, undoubtedly, the first round of motions will deal with whether good faith negotiations ensued before the developer filed suit.  If the court finds that such negotiations took place, the Township may be in for a long and costly battle, given the fact that, following the promulgation of the third-round rules in 2004, the governing body never applied for substantive certification of a third round plan or enacted an approved growth share ordinance.

In an an environment where elected officials must balance their obligations to comply with the Fair Housing Act and the Mount Laurel I and Mount Laurel II mandates with the pressures of overzealous NIMBYs who use tactics like anonymous flyers or blog entries that warn their neighbors of “Section 8 housing” and rail against “our community” losing its “small town charm” and turning into “Elizabeth, Newark or Camden” while adding to the burden on schools, traffic, flooding and what ever other parade of horribles they can use to stoke the fears of suburban homeowners, it is no wonder that communities may now have to brace themselves for an uptick in Mt. Laurel litigation, brought on by a perfect storm of a slumping real estate market and a pattern of either indifference to or willful avoidance of constitutional mandates combined with political pandering to vocal anti-development groups.

For more information on Mt. Laurel litigation, the newly-proposed third-round COAH regulations or affordable housing issues in general, feel free to contact us at pmorin@saul.com

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On Wednesday, January 9, 2008, Philip J. Morin III, Special Counsel in the Firm’s Real Estate Department, resident in our Newark office, 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 address the newly-proposed affordable housing regulations, the state of redevelopment after Gallenthin v. Paulsboro, and look ahead to potential legislative action regarding Regional Contribution Agreements and other land use issues in 2008.

 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 Stephen A. Santola, Esq., Executive Vice President and General Counsel of Woodmont Properties; 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 Sheraton Atlantic City Convention Center Hotel from 9:00 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 joint rezoning effort between the Township of Jackson and the Pinelands Commission, the Asbury Park Press has reported that the commission approved amendments to the township’s zoning ordinances in which approximately 233 acres of land were rezoned to reduce the potential development of approximately 1,400 homes to 28.

According to the article:

In theory, 28 future homes could be built under this zoning. However, there’s also an unusual intergovernment agreement with Manchester that would allow a density transfer onto adjacent tracts, and used to build up to 250 units in planned retirement community construction in Manchester, where sewers are available to serve future homes.

The ordinances cap a four-year effort by Pinelands and local officials to shift future development away from the upper branches of the Toms River, with the aim of preserving water quality and threatened and endangered species in the surrounding forest. The northern pine snake and rare plant species were among the concerns of Pinelands officials, while Jackson’s municipal government has been anxious to reduce future residential development and the coming tax burden from more demands for school and municipal services.

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