Focused on Land Use and Redevelopment Law in New Jersey
Over 40% of New Jersey’s municipalities recently filed Housing Elements and Fair Share Plans with COAH meeting the December 31, 2008 deadline. A complete list of municipalities is set forth on COAH’s website
Under COAH’s Scarce Resource Order, municipalities within the Highlands generally have until December 8, 2009 to submit Housing Elements and Fair Share Plans to COAH.
Blue Ribbon Panel to Spur Economic Development
TRENTON, N.J. – Governor Jon S. Corzine today announced the formation of a blue ribbon advisory panel known as the New Jersey Real Estate Advisory Board. The panel will be comprised of economic development leaders throughout the State, representing a cross-section of New Jersey’s major industry sectors.
“New Jersey cannot stand idly by while America’s financial crisis continues to evolve,” Governor Corzine said. “I look forward to collaborating with these talented industry leaders to craft policies that will help see New Jersey through this current economic crisis and move the State toward a path of recovery.”
The advisory panel will support the initiatives outlined in Governor Corzine’s Economic Assistance and Recovery Plan, which was announced in October. Board members will meet regularly and work closely with the Governor’s Office of Economic Growth as well as other State Departments to encourage economic development and revitalization across the state, enhance New Jersey’s appeal to investors and businesses, and serve as good will “ambassadors” for the State to recruit businesses to locate and expand in New Jersey.
“New Jersey’s businesses play an integral role in the continued economic prosperity of our state,” said Jerry Zaro, Chief of the Governor’s Office of Economic Growth. “The Real Estate Advisory Board will bring together some of the best and brightest in the state’s development community to work to create jobs, revenues and economic stability during this national recession.”
The new Board, which will serve as an informal advisory commission to the Governor, will be chaired by Joseph Taylor, CEO of Matrix Development Group. The remaining membership will represent the following sectors: Academic, Banking/Lending, Commercial, Construction Management, Housing, Industrial, Law, Office, Trade Organization, Retail, Risk Management, Broker/Dealers and Investors.
New Jersey Real Estate Advisory Board Members
Appellate Division Affirms Trial Court’s “Novel” and “Creative” Mount Laurel Decision
On August 29, 2008, the Appellate Division affirmed the award of a builder’s remedy for 840 residential units on a parcel located in the Boroughs of East Rutherford and Carlstadt and within New Jersey Meadowlands District. This is the first decision to award a builder’s remedy for property within the NJMC District.
The Appellate Division also affirmed the trial court’s “novel,” “creative and insightful” appointment of a Mount Laurel Implementation Monitor to bring the Boroughs of East Rutherford and Carlstadt into compliance with their Mount Laurel obligations after they failed to do so during the course of the litigation. The Appellate Division determined that this appointment was not punitive. Rather, it was an “inspired and appropriate exercise of the court’s judicial powers.”
Sills Cummis & Gross represented the plaintiff, Tomu Development Co., Inc., in the litigation and appeals. To read the decision, please click here.
With the New Jersey Assembly passing A500 last week and the New Jersey Senate passing S1783 yesterday, the most significant legislative reforms in New Jersey affordable housing policy since the adoption of the Fair Housing Act in 1985 are waiting for Governor Corzine’s signature. If signed into law, the legislation will impact many development and municipalities across the state, and the legislation may prompt the Council on Affordable Housing to adopt even more amendments to its third round regulations.
Here are ten things to know about the pending legislation:
1. The affordable housing contribution for non-residential development will be limited to 2.5% of the equalized assessed value (EAV). Additions and redevelopment will pay 2.5% of the difference of the EAV resulting from the development, i.e. the EAV after the development minus the EAV before the development. This is a substantial reduction from the amounts COAH’s Round Three regulations would permit municipalities to impose on non-residential development, which, for example, could be as high as $32.00 per square foot of office space.
The 2.5% development fee will be applied statewide subject to a a few exemptions, such as urban transit hub projects, certain projects within ½ mile of a platform area for a light rail station, and transit village projects. Projects that have received a general development plan approval or have entered into a developer’s agreement or a redevelopment agreement providing for an affordable housing contribution of at least 1% of the EAV are also exempt from paying the 2.5% development fee.
2. Regional Contribution Agreements (“RCAs”) are no longer permitted and any RCA agreement, which has not already been approved by COAH is void. By using RCAs, municipalities have historically been able to transfer up to 50% of their affordable housing obligation to other municipalities by making a financial contribution to the receiving municipality.
3. There is a new rehabilitation fund, the Urban Housing Assistance Program, to provide for the rehabilition of urban areas. This fund will receive the first $20 million collected by the statewide 2.5% non-residential development fee and will replace the funding that was previously provided to urban municipalities by sending municipalities in RCAs.
4. The Fair Housing Act will be amended to explicitly require municipalities to provide incentives, “which shall include increased densities and reduced costs,” to developers of inclusionary developments. COAH has discretion to reduce the affordable housing set aside “to ensure the economic feasibility of an inclusionary development.”
5. Redevelopment plans shall be required to provide comparable an affordable housing unit for each household in an affordable unit, which is displaced as a result of the implementation of a redevelopment plan. The affordable unit must have been subject to affordability controls.
6. COAH shall ensure that 13% of a municipality’s affordable housing obligation is addressed through the provision of housing affordable to very low income households, i.e. 30% or less of the region’s median income. According to its terms, the bill shall does not require that each development contain very low income households, but it appears likely that municipalities will require developers to provide very low income units onsite. Municipalities will not be entitled to bonus credits for providing housing for very low income households unless the 13% target has been achieved.
7. Municipalities may forfeit the funds collected under municipal development fee ordinances, the new Statewide non-residential development fee and the payment-in-lieu requirements, if they have not committed to spend the funds within four years of collecting them.
8. Any residential development within a regional planning entity, including the New Jersey Meadowlands Commission, the Pinelands Commission, and the Highlands Water Protection and Planning Council and the Fort Monmouth Economic Revitalization Planning Authority shall include a 20% set aside for affordable housing to the extent it is economically feasible. These planning agencies are also authorized to work with municipalities to transfer up to 50% of the municipal affordable housing obligation to other municipalities within the same planning region.
9. Any residential development in a transit village, on State-owned property or urban transit hubs shall provide a 20% set aside for affordable housing to the extent it is economically feasible. Such a set aside is not required if the municipality has already received substantive certification or a Judgment of Repose and the set aside is not necessary under the approved plan.
10. There is a new State agency, the State Housing Commission, in but not of the Department of Community Affairs. The State Housing Commission shall provide guidance on state housing policy and adopt the Annual Strategic Housing Plan.
(Courtesy of the NJ Builders Association)
1. The time period for the permit extension is January 1, 2007 – July 1, 2010, with up to an additional 6 months phase-in period to December 31, 2010. That amounts to a maximum 4 year permit extension period.
2. Permits and approvals that are typically required for subdivision and site plan approval in New Jersey will be extended.
3. Permits and approvals will not be extended in a defined “environmentally sensitive area”, which means:
a. State Plan Planning Area 4B (Rural/Environmentally Sensitive) as designated pursuant to the version of the State Plan in effect at the time the Act is signed
b. State Plan Planning Area 5 (Environmentally Sensitive) as designated pursuant to the version of the State Plan in effect at the time the Act is signed
c. Highlands except for a growth area pursuant to the Highlands Regional Master Plan
d. Pinelands except for any growth area designated in the Comprehensive Management Plan
4. Except for Right-of-Way permits, permits and approvals issued by the Department of Transportation will not be extended.
5. Permits and approvals that are issued under the Flood Hazard Area Control Act will not be extended, EXCEPT “where work has commenced, in any phase or section of the development, on any site improvement as defined in the Municipal Land Use Law (MLUL), or on any buildings or structures.”
6. Coastal Center designations will not be extended where (1) an application for Plan Endorsement was not submitted to the State Planning Commission as of March 15, 2007 and (2) designations were not in compliance with the Coastal Zone Management rules. Under the Act, all Coastal Area Facility Review Act (CAFRA) permits will be extended.
7. The Act does not affect DEP-issued Administrative Consent Orders that are in effect or are issued during the extension period.
8. Where an approval tolled under the Act is based upon connection to a sanitary sewer system, the extension is contingent upon the treatment facility having sufficient capacity to accommodate that development. If there is not sufficient capacity, those with permit extensions will have priority for further allocation of gallonage over those permit holders who did not receive hookup approval prior to PEA’s enactment.
9. The DEP Commissioner would retain the ability to revoke or modify specific permits or approval where DEP is authorized to do so under the permit or approval. This revocation or modification can also occur with those permits or approvals that qualify for extension.
10. The Act does not modify any requirements related to State’s authority for delegation or assumption to implement a federal law or program (i.e. Wetlands program).
Similarly it does not affect any permits or approvals issued by the U.S. government (or any of its agency or instrumentality) where its duration, date or expiration terms are specified or determined under a federal law or regulation.
11. The Act does not limit counties/municipalities’ obligation of submission of wastewater management plans or plan updates, as required under the newly adopted Water Quality Management Planning rules.
To view the legislation in its entirety, please click here.
As seen on GlobeSt.com
This article on COAH discusses a recent rewrite to the COAH rules. The rewritten rules, which were voted on to adopt on May 6, 2008, were published on June 2, 2008 in the New Jersey Register. The comment period for the rules begins on June 16, 2008. According to the article “Rob Kasuba, an associate with Sills Cummis & Gross, developers are dissatisfied with the new rules. They believe the directive to build the housing in the same area as a commercial project is impractical and they don’t believe the compensatory benefit system will work. Many of them want the burden of affordable housing to be broadened—municipalities enter the COAH process voluntarily, and nearly half of New Jersey’s municipalities don’t participate. Therefore, developers building projects in those municipalities manage to sidestep the additional fees and construction that developers in COAH municipalities must deal with. Kasuba called for a fee to be assessed to all developers in the state, whether they’re in a COAH area or not.”
The bipartisan Permit Extension Act is a much-needed piece of legislation that will help jump-start New Jersey’s ailing economy and put people back to work. It will allow good and viable projects to move forward, thereby stimulating economic growth and creating jobs. The fact is, the Permit Extension Act respects New Jersey’s tough environmental standards, promotes the concept of smart growth and cleans up polluted “brownfields,” with that tab picked up by the private sector, not taxpayers.
The bill’s opponents serve up little more than outdated scare tactics and misleading statements. Michele Byers of the New Jersey Conservation Foundation offered a cute analogy in her June 13 op-ed piece, “State permit extension would gut environmental rules.” “Like old food, old permits go bad,” she wrote. She craftily avoided certain facts and distorted others. Her point, that permit extension is bad for New Jersey and bad for the environment, is fundamentally false.
The Smart Growth Economic Development Coalition, a broad-based group of civic, business, economic, smart growth, planning, labor and redevelopment organizations, offers New Jerseyans a clearer, more diverse point of view.
Byers uses the analogy of perishable foods in a refrigerator to describe permits. But who doesn’t freeze perishables to prolong their shelf life, particularly when money is tight and these items remain perfectly good? Permit extension simply freezes these expiring permits for a few years so they can thaw out as soon as New Jersey’s economy begins to rebound. In fact, with extended permits, these projects will contribute to New Jersey’s economic recovery.
If you’ve ever put a small addition on your house, you know how cumbersome governmental approvals and bureaucracy can be. Now imagine all that red tape on a larger scale, directly affecting hundreds of projects and thousands of jobs.The building and environmental permitting process in New Jersey can take five years or more to complete and can cost hundreds of thousands of dollars as permits are needed from any combination of governing and regulatory bodies, from the municipal through the county and to the state levels.
It is widely acknowledged that New Jersey has the most stringent environmental regulations in the country. So to say that this bill, by simply prolonging the shelf life of perfectly good and already approved permits for viable projects “guts environmental rules,” is just plain false. In fact, it is irresponsible and misleading to make such a claim. These permits already have met the environmental and regulatory standards in place at the time they were reviewed. This legislation, as amended, would extend them for two years.
Furthermore, some of these projects will remediate contaminated sites, redevelop blighted urban areas, reinvigorate our communities and employ our skilled laborers.
It is unfortunate that special-interest lobbyists such as Byers continue reverting to sensationalism and scare tactics to invoke fear within our communities and our citizens. The “growth versus environment” argument is old. We don’t buy into. These permits were granted after having being exhaustively reviewed against stringent environmental regulations — not from 10 or 20 years ago, but from two years ago or even less. It’s not an “either-or” argument; it’s not “all-or-nothing.” We all are environmentally conscious, and these permits uphold the regulations by which they were judged.
That being said, we are realists: Our state’s economy is malfunctioning like an old and inefficient refrigerator, in the process allowing permits to spoil during tough economic times, through no fault or wrongdoing of those who put so much of their time and energy into obtaining them.
We all want clean air to breathe, clean water to drink and open spaces to enjoy with our families. But we also want an affordable place to call home and raise a family. Together, we are seeking to balance quality of life objectives with the dire need to create jobs, attract new businesses, retain our residents and to “grow smart” in urban centers and suburban downtowns, on “brownfields” and”portfields” and around transit hubs.
Permit extension is not anyone’s special interest. It’s everyone’s best interest.
Asbury Park Press June 20, 2008
by Brianne Harrison of GlobeSt.com
TRENTON, NJ-The Smart Growth Coalition, a group of developers and business leaders who have drafted a collection of bills aimed at promoting smart growth in New Jersey, have introduced their first piece of legislation. The Permit Extension Act, which would extend state, county and local permits and approvals issued on projects after Jan. 1, 2006 until the end of 2012, has already been heavily amended by the state Assembly. The coalition is hopeful that the bill will fare better in the Senate, which will debate the act on Thursday….
To read the full article, please click here.
The Permit Extension Act was approved by the Assembly Solid Waste and Environmental Committee today with the following amendments:
Time Period: Amended to 1/1/08 to 12/31/10, with a one year cap on tolling ( was 1/1/06 to 12/31/12, with two year cap on tolling) .
Centers: CAFRA and State Plan centers are excluded. (Secs. 3 and 4(b)(6)) (
DOT Permits: Excluded except for R-O-W permits and permits granted pursuant to NJSA 27:7-1, et seq. (Sections 3 and 4(b)(8))
Highlands Permits: A ll are excluded. (Secs. 3 and 4(b)(7))
Water Quality Management Plan certifications/approvals: Excluded. (Secs. 3 and 4(b)(5)) (One suspects that the intent here is to apply the new WQMP regulations to all developments.)
Septic Systems: Excludes approvals covering over 50 septic systems under Chapter 199. (Secs. 3 and 4(b)(4))
Definition of “environmentally sensitive area”: Excludes all of the Pinelands except RGAs, rather than including all of the Pinelands except the Preservation Area. Also, includes “environmental protection zones or sub-zones” in Highlands Plan, along with Highlands Preservation Area.
The national “Smart Growth Online” website reports that: “In unmistakable opening shots of a public opinion battle over regulatory changes sought by a coalition of developers and business leaders in their ‘ Smart Growth and Economic Development Stimulus Act of 2008 ‘, coalition lobbyist Ted Zangari announced, ‘ We’re swearing off sprawl and encouraging smart growth,’ while New Jersey Sierra Club Executive Director Jeff Tittel stated, ‘ This, en toto, is as much about smart growth as Haagen-Dazs is to Weight Watchers.’ ” Click here for link to story.
