Pending Legislation Abolishes Council on Affordable Housing and Nonresidential Development fees

May 7th, 2010 | Posted by: Christopher DeGrezia 0| comments:

COAHIf adopted, a bill before the New Jersey Senate (S-1) will abolish COAH and reform the Fair Housing Act.  The bill stands at second reading and can be voted upon at the next voting session in May 2010.  If it is not amended, the bill will change the entire landscape of how affordable housing requirements are calculated and applied.  With regard to nonresidential development, it will essentially eliminate affordable housing requirements.  Here is the story:      » Read the rest of this entry «

Time’s Up for Time of Decision Rule

March 18th, 2010 | Posted by: Christopher DeGrezia 3| comments:

Time of Decision RuleThe New Jersey Senate and Assembly recently passed a bill (S-58: A-437) that overrides the “time of decision rule,” which has governed decision making under the Municipal Land Use Law for decades. 

Under current law, a planning board or zoning board of adjustment applies the law in effect at the time it renders its decision, rather than the law in effect when the issues were initially presented.  A municipal governing body can amend its zoning ordinance after an application for development has been filed with a land use board, even in direct response to the application, and the land use board decides the matter based upon the amended ordinance. 

Under the new bill, a land use board would be required to make its decision on an application for development in accordance with the development regulations (zoning ordinance, subdivision ordinance, site plan ordinance, official map ordinance or other municipal regulation of the use and development of land) that are in effect on the date the application for development is submitted.  The bill also exempts an application for development from changes made to ordinances other than development regulations, except for those relating to health and public safety, that are adopted after the application for development is submitted. » Read the rest of this entry «

“Inherently Beneficial Use” is defined to include Wind, Solar or Photovoltaic Energy Facilities

March 12th, 2010 | Posted by: Christopher DeGrezia 1| comments:

Renewable EnergyIn June, I reported that the New Jersey Legislature proposed a bill (S1202/A3062) that would add the definition of an “inherently beneficial use” to the Municipal Land Use Law and expand the inherently beneficial use status to include wind, solar and photovoltaic facilities.   The legislation has been adopted and the following definitions now apply:

“Inherently beneficial use” means a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such a use includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure.

“Wind, solar or photovoltaic energy facility or structure” means a facility or structure for the purpose of supplying electrical energy produced from wind, solar, or photovoltaic technologies, whether such facility or structure is a principal use, a part of the principal use, or an accessory use or structure.

For a copy of the Pamphlet Law click here.

For a discussion of the inherently beneficial use variance standard click here.

Governor Signs Bill Allowing Conversion of Age Restricted Housing Developments.

July 17th, 2009 | Posted by: Christopher DeGrezia 1| comments:

Age Restricted -parkWith some modifications Senate Bill S-2577 (A-3772), allowing the conversion of age-restricted housing developments, has finally been signed by Gov.  Jon S. Corzine and takes effect immediately.  As reported earlier, the new legislation permits the conversion of age-restricted housing units to non-age-restricted housing units and modifies laws concerning affordable housing.  In May, Gov. Corzine returned the legislation back to the Senate with recommendations.  The new law has evolved to better protect municipalities, making it clear that the reviewing municipal board should approve the conversion where there is no substantial detriment to the public good or impairment of the the intent and purpose of the zone plan and zoning ordinance.  The appeal language has also been modified, allowing an appeal directly to court.  Unlike a typical prerogative writ action, however, the appeal must be filed within 30 days of the applicant’s receipt of the resolution of denial.  For further details and a copy of the Advanced Law click here. 

NJ Supreme Court Rules on the Validity of Open Space/Recreational Fees and Set Asides

June 25th, 2009 | Posted by: Christopher DeGrezia 2| comments:

2009-02-17-transfer-481This 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 «

Proposed Legislation Defines “Inherently Beneficial Use” and Includes Alternative Energy Facilities

June 18th, 2009 | Posted by: Christopher DeGrezia 4| comments:

Renewable EnergyIn an attempt to promote renewable energy, the New Jersey Legislature has proposed a bill (S1303/A3062) that would add the definition of an “inherently beneficial use” to the Municipal Land Use Law and expand the inherently beneficial use status to wind, solar and photovoltaic facilities.  The concept of an inherently beneficial use was created by the courts to lessen the extremely difficult standard of proof required to obtain a use variance where the use being proposed was, by its very nature, beneficial to the community, such as a school or hospital.   In 1997, the concept made its way into the Municipal Land Use Law in order to resolve some ambiguities with the variance standard that was being applied by Zoning Boards, although no definition of an inherently beneficial use has yet appeared in existing statutory law.  » Read the rest of this entry «

Understanding Inherently Beneficial Uses

June 17th, 2009 | Posted by: Christopher DeGrezia 10| comments:

Flower - Inherently beneficial useWhere an applicant would like to introduce a use that is not permitted within a particular zone, that applicant is required to obtain a use variance – a very difficult variance to secure.  The Municipal Land Use Law authorizes local zoning boards to grant a use variance where: (1) “special reasons” exist for the variance (the positive criteria); and (2) the variance can be granted without substantial detriment to the public good and will not substantially impair the intent and purposes of the zone plan and zoning ordinance (the negative criteria). N.J.S.A. 40:55d 70(d).  Where a proposed use is determined to be “inherently beneficial” to society, the positive criteria and negative criteria requirements are less stringent.   Specifically, the positive criteria is presumptively satisfied and the negative criteria is resolved by balancing the benefits of the project against any detriments, considering whether any detrimental effect can be reduced by imposing reasonable conditions, and then determining after weighing of the positive and negative factors (as ameliorated by the conditions) whether the grant of the variance would cause a substantial detriment to the public good.  » Read the rest of this entry «

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