October 8th, 2010 | Posted by:
Today, the Appellate Division issued a decision invalidating the Council of Affordable Housing’s growth share methodology, commonly referred to as the third round rules. The Court provided the following conclusion:
In summary, we invalidate the parts of the revised third round rules that use a growth share methodology for determining the prospective need for affordable housing. We also conclude 71 A-5382-07T3 that the adoption of valid third round rules should not be further delayed by allowing COAH to adopt another methodology for determining prospective need that relies upon a growth share approach. Accordingly, we remand to COAH to adopt new third round rules that use a methodology for determining prospective need similar to the methodologies used in the first and second rounds. This determination should be made on the basis of the most up-to-date available data. The remand shall be completed within five months.
We also invalidate N.J.A.C. 5:97-3.2(a)(4)(iv), which authorizes a municipality to obtain substantive certification of a compliance plan that proposes to construct municipally-funded affordable housing without any specifics regarding the location of the site or source of funding; those parts of the third round rules that fail to provide sufficient incentives for the construction of inclusionary developments; N.J.A.C. 5:97-3.5, which governs rental bonuses for prior round obligations; and N.J.A.C. 5:97-3.18, which authorizes compliance bonuses for affordable housing units approved during the period from December 20, 2004 to June 2, 2008. Consequently, COAH must either eliminate or modify those parts of the third round rules in conformity with this opinion.
January 14th, 2010 | Posted by:
By Kenneth Norcross, Esq.
The New Jersey Tax Court has held that transfers of unencumbered property between commonly owned legal entities, for nominal consideration, are not subject to the realty transfer fee. The court rejected the position taken by the Division of Taxation in its current regulations that such transfers are always subject to the fee and that the consideration should be measured by the assessed value of the property.
In Mack-Cali Realty, LP v. Taxation Div. Director, the taxpayer conveyed its unencumbered properties to its wholly owned limited liability companies in each case for consideration of $10. The taxpayer claimed that the transfers were not subject to the realty transfer fee because the statute specifically exempts transfers for consideration of less than $100. » Read the rest of this entry «
September 4th, 2009 | Posted by:
By Matthew Barndt, Esq.
When value is in dispute, the parties often engage competing experts to assist the court in rendering a decision. A recent New Jersey appellate decision concluded that in such cases simple averaging of the valuations reached by competing experts “is not an appropriate methodology for assessing divergent values.” » Read the rest of this entry «
July 9th, 2009 | Posted by:
By Andy S. Norin, Esq. and Joshua J. Franklin, Esq.
On March 13, the Appellate Division decided Iron Mountain Information Management Inc. v. City of Newark, 405 N.J. Super. 599, which addresses the scope of the Appellate Division’s prior ruling in Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361 (2008), regarding notice requirements under the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq. (LRHL). In DeRose, the court ruled that a landowner whose property was designated as an “area in need of redevelopment” retains the right to challenge that designation, even after the 45-day limitations period prescribed by the LRHL, unless the landowner receives written notice, at the time of the redevelopment designation, explaining that the designation authorizes the municipality to acquire the property by eminent domain. » Read the rest of this entry «
June 25th, 2009 | Posted by:
This morning, the New Jersey Supreme Court affirmed a decision by the Appellate Division striking down ordinances in Jackson Township and Egg Harbor. The court held that the Municipal Land Use Law does not empower municipal governments to require developers to set aside land for common open space or recreational areas and facilities (or to make payments in lieu of those set-asides), except with regard to applications for planned developments. » Read the rest of this entry «
June 5th, 2009 | Posted by:
The New Jersey Supreme Court recently upheld the validity of a Township ordinance that requires developers to replace the trees they remove during development or pay a fee into a special “tree escrow fund” dedicated to planting trees and shrubs on public property. In the case of NJ Shore Builders Association v. Township of Jackson, the state Supreme Court overruled decisions by both the Appellate Division and trial court that found the ordinance invalid because requiring developers to pay a fee for planting trees on public land bore no relationship to the stated purpose of the ordinance – to counter environmental hazards of clear-cutting trees. The lower courts found that the payment of the fee to plant new trees and shrubs on public property did not ameliorate the negative effects of removing trees on private property. The NJ Supreme Court disagreed, however, indicating that the Township’s exercise of the police power was rationally related to the broad environmental goals of ordinance. The court viewed the ordinance as a generic environmental regulation and not a planning or zoning initiative that implicates the Municipal Land Use Law. » Read the rest of this entry «