PLANNED
DEVELOPMENTS
The Municipal Land Use Law ("MLUL") contains a number of provisions that relate solely to "planned developments." It is sometimes assumed that "planned developments" are synonymous with large scale, multi-phase developments. This is not the case. in the appropriate case, a planned development can be developed on an area of land no larger than five (5) acres.
I. the provisions of the MLUL applicable to "planned developments" are as follows:
A. TYPES OF PLANNED DEVELOPMENTS.
"Planned commercial development" means an area of a minimum contiguous or noncontiguous size as specified by ordinance to be developed according to a plan as a single entity containing one or more structures with appurtenant common areas to accommodate commercial or office uses or both and any residential and other uses incidental to the predominant use as may be permitted by ordinance.
"Planned development" means unit development, planned unit residential development, residential cluster, planned commercial development or planned industrial development.
"Planned industrial development" means an area of a minimum contiguous or noncontiguous size as specified by ordinance to be developed according to a plan as a single entity containing one or more structures with appurtenant common areas to accommodate industrial uses and any other uses incidental to the predominant use as may be permitted by ordinance.
"Planned unit development" means an area with a specified minimum contiguous or noncontiguous acreage of 10 acres or more to be developed as a single entity according to a plan, containing one or more residential clusters or planned unit residential developments and one or more public, quasi-public, commercial or industrial areas in such ranges of ratios of nonresidential uses to residential uses as shall be specified in the zoning ordinance.
"Planned unit residential development" means an area with a specified minimum contiguous or noncontiguous acreage of 5 acres or more to be developed as a single entity according to a plan containing one or more residential clusters, which may include appropriate commercial, or public or quasi-public uses all primarily for the benefit of the residential development. [N.J.S.A. 40:55D-6].
B. ZONING CRITERIA.
"Provide districts for planned developments; provided that an ordinance providing for approval of subdivisions and site plans by the planning board has been adopted and incorporates therein the provisions for such planned developments in a manner consistent with article 6 (C. 40:55D-37 et seq.) of this act. The zoning ordinance shall establish standards governing the type and density, or intensity of land use, in a planned development. Said standards shall take into account that the density, or intensity of land use, otherwise allowable may not be appropriate for a planned development. the standards may vary the type and density, or intensity of land use, otherwise applicable to the land within a planned development in consideration of the amount, location and proposed use of open space; the location and physical characteristics of the site of the proposed planned development; and the location, design and type of dwelling units and other uses. Such standards may provide for the clustering of development between noncontiguous parcels and may, in order to encourage the flexibility of density, intensity of land uses, design and type authorize a deviation in various clusters from the density, or intensity of use, established for an entire planned development. the standards and criteria by which the design, bulk and location of buildings are to be evaluated, shall be set forth in the zoning ordinance and all standards and criteria for any feature of a planned development shall be set forth in such ordinance with sufficient certainty to provide reasonable criteria by which specific proposals for planned development can be evaluated." [N.J.S.A. 40:55D-65c].
C. SITE PLAN REVIEW CRITERIA.
"Reservation pursuant to section 31 (C. 40:55D-43) of this act of any open space to be set aside for use and benefit of the residents of planned development resulting from the application of standards of density or intensity of land used contained in the zoning ordinance pursuant to subsection 52 c. (C. 40:5D-65c.) of this act." [N.J.S.A. 40:55D-38b(5)].
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"Provisions for standards encouraging and promoting flexibility, and economy in layout and design through the use of planned unit development, planned unit residential development and residential cluster; provided that such standards shall be appropriate to the type of development permitted; and provided further that the ordinance shall set forth the limits and extent of any special provisions applicable to such planned developments, so that the manner in which such special provisions differ from the standards otherwise applicable to subdivisions or site plans can be determined.
Provisions for planned development:
(1) Authorizing the planning board to grant general development plan approval to provide the increased flexibility desirable to promote mutual agreement between the applicant and the planning board on the basic scheme of a planned development and setting forth any variations from the ordinary standards for preliminary and final approval;
(2) Requiring that any common open space resulting from the application of standards for density, or intensity of land use, be set aside for the use and benefit of the owners or residents in such development subject to section 31 (C. 40:55D-43) of this act;
(3) Setting forth how the amount and location of any common open space shall be determined and how its improvement and maintenance for common open space use shall be secured subject to section 31 (C. 40:55D-43) of this act;
(4) Authorizing the planning board to allow for a greater concentration of density, or intensity of land use, within a section or sections of development, whether it be earlier, later or simultaneous in the development, than in others;
(5) Setting forth any requirement that the approval by the planning board of a greater concentration of density or intensity of land use for any section to be developed be offset by a smaller concentration in any completed prior stage or by an appropriate reservation of common open space on the remaining land by grant of easement or by covenant in favor of the municipality; provided that such reservation shall, as far as practicable, defer the precise location of common open space until an application for final approval is filed, so that flexibility of development can be maintained; and
(6) Setting forth any requirements for timing of development among the various types of uses and subgroups thereunder and, in the case of planned unit development and planned unit residential development, whether some nonresidential uses are required to be built before, after or at the same time as the residential uses." [N.J.S.A. 40:55D-39b].
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"Conventional" means development other than planned development. [N.J.S.A. 40:55D-3].
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"Standards encouraging and promoting flexibility, economy and environmental soundness in layout and design in accordance with which the planning board may approve the varying, within a conventional subdivision, of lot areas and dimensions, and yards and setbacks otherwise required by municipal development regulations in such a way that the average lot areas and dimensions, yards and setbacks within the subdivision conform to the conventional norms of the municipal development regulations; provided that such standards shall be appropriate to the type of development permitted." (Emphasis added) [N.J.S.A. 40:55D-40b].
D. STANDARDS FOR MAINTENANCE OF RESERVED OPEN SPACE.
"a. An ordinance pursuant to this article permitting planned unit development, planned unit residential development or residential cluster may provide that the municipality or other governmental agency may, at any time and from time to time, accept the dedication of land or any interest therein for public use and maintenance, but the ordinance shall not require, as a condition of the approval of a planned development, that land proposed to be set aside for common open space be dedicated or made available to public use.
An ordinance pursuant to this article providing for planned unit development, planned unit residential development, or residential cluster shall require that the developer provide for an organization for the ownership and maintenance of any open space for the benefit of owners or residents of the development, if said open space is not dedicated to the municipality or other governmental agency. Such organization shall not be dissolved and shall not dispose of any open space, by sale or otherwise, except to an organization conceived and established to own and maintain the open space for the benefit of such development, and thereafter such organization shall not be dissolved or dispose of any of its open space without first offering to dedicate the same to the municipality or municipalities wherein the land is located." [N.J.S.A. 40:55D-43a].
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"Common open space" means an open space area within or related to a site designated as a development, and designed and intended for the use or enjoyment of residents and owners of the development. Common open space may contain such complementary structures and improvements as are necessary and appropriate for the use or enjoyment of residents and owners of the development. [N.J.S.A. 40:55D-3].
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"Open-space" means any parcel or area of land or water essentially unimproved and set aside, dedicated, designated or reserved for public or private use or enjoyment or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open space; provided that such areas may be improved with only those buildings, structures, streets and offstreet parking and other improvements that are designed to be incidental to the natural openness of the land. [N.J.S.A. 40:55D-5].
E. REQUIRED FINDINGS FOR PLANNED DEVELOPMENTS.
"Every ordinance pursuant to this article that provides for planned developments shall require that prior to approval of such planned developments the planning board shall find the following facts and conclusions:
a. That departures by the proposed development from zoning regulations otherwise applicable to the subject property conform to the zoning ordinance standards pursuant to subsection 52 c. (C.40:55D-65c.) of this act;
b. That the proposals for maintenance and conservation of the common open space are reliable, and the amount, location and purpose of the common open space are adequate;
c. That provisions through the physical design of the proposed development for public services, control over vehicular and pedestrian traffic, and the amenities of light and air, recreation and visual enjoyment are adequate;
d. That the proposed planned development will not have an unreasonably adverse impact upon the area in which it is proposed to be established; and
e. in the case of a proposed development which contemplates construction over a period of years, that the terms and conditions intended to protect the interests of the public and of the residents, occupants and owners of the proposed development in the total completion of the development are adequate." [N.J.S.A. 40:55D-45].
F. MISCELLANEOUS PROVISIONS.
"The planning board shall grant final approval if the detailed drawings, specifications and estimates of the application for final approval conform to the standards established by ordinance for final approval, the conditions of preliminary approval and, in the case of a major subdivision, the standards prescribed by the "Map Filing Law," P.L. 1960, c. 141 (C. 46:23-9.9 et seq.): provided that in the case of a planned unit development, planned unit residential development or residential cluster, the planning board may permit minimal deviations from the conditions of preliminary approval necessitated by change of conditions beyond the control of the developer since the date of preliminary approval without the developer being required to submit another application for development for preliminary approval." (Emphasis added) [N.J.S.A. 40:55D-50a].
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"Minor subdivision" means a subdivision of land for the creation of a number of lots specifically permitted by ordinance as a minor subdivision; provided that such subdivision does not involve (1) a planned development, (2) any new street or (3) the extension of any off-tract improvement, the cost of which is to be prorated pursuant to section 30 of P.L. 1975, c. 291 (C. 40:55D-42). [N.J.S.A. 40:55D-5].
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"Upon the submission to the administrative officer of a complete application for a site plan which involves 10 acres of land or less, and 10 dwelling units or less, the planning board shall grant or deny approval within 45 days of the date of such submission or within such further time as may be consented to by the developer. Upon the submission of a complete application for a site plan which involves more than 10 acres, or more than 10 dwelling units, the planning board shall grant or deny preliminary approval within 95 days of the date of such submission or within such further time as may be consented to by the developer. Otherwise, the planning board shall be deemed to have granted preliminary approval to the site plan." [N.J.S.A. 40:55D-46c].
G. PLANNED DEVELOPMENTS GREATER THAN 100 ACRES.
General development plan/duration.
A general development plan may include, but not be limited to, the following:
a. the general development plan shall set forth the permitted number of dwelling units, the amount of nonresidential floor space, the residential density and the nonresidential floor area ratio for the planned development, in its entirety according to a schedule which sets forth the timing of the various sections of the development. the planned development shall be developed in accordance with the general development plan approved by the planning board notwithstanding any provision of P.L. 1975, c. 291 (C. 40:55D-1 et seq.), or an ordinance or regulation adopted pursuant thereto after the effective date of the approval.
b. the term of the effect of the general development plan approval shall be determined by the planning board using the guidelines set forth in subsection c. of this section, except that the term of the effect of the approval shall not exceed 20 years from the date upon which the developer receives final approval of the first section of the planned development pursuant to P.L. 1975, c. 291 (C. 40:55D-1 et seq.). (Emphasis added).
c. in making its determination regarding the duration of the effect of approval of the development plan, the planning board shall consider: the number of dwelling units or amount of nonresidential floor area to be constructed, prevailing economic conditions, the timing schedule to be followed in completing the development and the likelihood of its fulfillment, the developer's capability of completing the proposed development, and the contents of the general development plan and any conditions which the planning board attaches to the approval thereof.
General development plan contents.
A general development plan may include, but not be limited to, the following:
a. A general land use plan at a scale specified by ordinance indicating the tract area and general locations of the land uses to be included in the planned development. the total number of dwelling units and amount of nonresidential floor area to be provided and proposed land area to be devoted to residential and nonresidential use shall be set forth. in addition, the proposed types of nonresidential uses to be included in the planned development shall be set forth, and the land area to be occupied by each proposed use shall be estimated. the density and intensity of use of the entire planned development shall be set forth, and a residential density and a nonresidential floor area ratio shall be provided;
b. A circulation plan showing the general location and types of transportation facilities, including facilities for pedestrian access within the planned development and any proposed improvements to the existing transportation system outside the planned development;
c. An open space plan showing the proposed land area and general location of parks and any other land areas to be set aside for conservation and recreational purposes and a general description of improvements proposed to be made thereon, including a plan for the operation and maintenance of parks and recreational lands;
d. A utility plan indicating the need for and showing the proposed location of sewage and water lines, any drainage facilities necessitated by the physical characteristics of the site, proposed methods for handling solid waste disposal; and a plan for the operation and maintenance of proposed utilities;
e. A storm water management plan setting forth the proposed method of controlling and managing storm water on the site;
f. An environmental inventory including a general description of the vegetation, soils, topography, geology, surface hydrology, climate and cultural resources of the site, existing man-made structures or features and the probable impact of the development on the environmental attributes of the site;
g. A community facility plan indicating the scope and type of supporting community facilities which may include, but not be limited to, educational or cultural facilities, historic sites, libraries, hospitals, firehouses and police stations;
h. A housing plan outlining the number of housing units to be provided and the extent to which any housing obligation assigned to the municipality pursuant to P.L. 1985, c. 222 (C. 52:27D-301 et al.) will be fulfilled by the development;
i. A local service plan indicating those public services which the applicant proposes to provide and which may include, but not be limited to, water, sewer, cable and solid waste disposal;
j. A fiscal report describing the anticipated demand on municipal services to be generated by the planned development and any other financial impacts to be faced by municipality or school districts as a result of the completion of the planned development. the fiscal report shall also include a detailed projection of property tax revenues which will accrue to the county, municipality and school district according to the timing schedule provided under subsection k. of this section, and following the completion of the planned development in its entirety;
k. A proposed timing schedule in the case of a planned development whose construction is contemplated over a period of years, including any terms or conditions which are intended to protect the interests of the public and of the residents who occupy any section of the planned development prior to the completion of the development in its entirety; and
l. A municipal development agreement, which shall mean a written agreement between a municipality and a developer relating to the planned development. (Emphasis added).
General development plan approval procedure.
a. Any developer of a parcel of land greater than 100 acres in size for which the developer is seeking approval of a planned development pursuant to P.L. 1975, c. 291 (C. 40:55D-1 et seq.) may submit a general development plan to the planning board prior to the granting of preliminary approval of that development by the planning board pursuant to section 34 of P L. 1975, c. 291 (C. 40:55D-46) or section 36 of P .L. 1975, c. 291 (C. 40:55D-48). (Emphasis added).
b. the planning board shall grant or deny general development plan approval within 95 days after submission of a complete application to the administrative officer, or within such further time as may be consented to by the applicant. Failure of the planning board to act within the period prescribed shall constitute general development plan approval of the planned development.
General development plan; timing schedule; modification.
In the event that the developer seeks to modify the proposed timing schedule, such modification shall require the approval of the planning board. the planning board shall, in deciding whether or not to grant approval of the modification, take into consideration prevailing economic and market conditions, anticipated and actual needs for residential units and nonresidential space within the municipality and the region, and the availability and capacity of public facilities to accommodate the proposed development. L. 1987, c. 129, § 6, eff. May 28,1987. Source: New.
General development plan hearing on modifications required.
a. Except as provided hereunder, the developer shall be required to gain the prior approval of the planning board if, after approval of the general development plan, the developer wishes to make any variation in the location of land uses within the planned development or to increase the density of residential development or the floor area ratio of nonresidential development in any section of the planned development.
b. Any variation in the location of land uses or increase in density or floor area ratio proposed in reaction to a negative decision of, or condition of development approval imposed by, the Pinelands Commission pursuant to P.L. 1979, c. 111 (C. 13:18A-1 et seq.) or the Department of Environmental Protection pursuant to P.L. 1973, c. 185 (C. 13:19-1 et seq.) shall be approved by the planning board if the developer can demonstrate to the satisfaction of the planning board, that the variation being proposed is a direct result of such determination by the Pinelands Commission or the Department of Environmental Protection, as the case may be.
General development plan on modifications not required.
a. Except as provided hereunder, once a general development plan has been approved by the planning board, it may be amended or revised only upon application by the developer approved by the planning board.
b. A developer, without violating the terms of the approval pursuant to this act, may, in undertaking any section of the planned development, reduce the number of residential units or amount of nonresidential floor space by no more than 15% or reduce the residential density or nonresidential floor area ratio by no more than 15%; provided, however, that a developer may not reduce the number of residential units to be provided pursuant to P.L. 1985, c. 222 (C. 52:27D-301 et al.) without prior municipal approval. (Emphasis added).
General development plan certification upon completion; General development plan failure to complete or comply; General development plan termination of approval
a. Upon the completion of each section of the development as set forth in the approved general development plan, the developer shall notify the administrative officer, by certified mail, as evidence that the developer is fulfilling his obligations under the approved plan. For the purpose of this section, "completion" of any section of the development shall mean that the developer has acquired a certificate of occupancy for every residential unit or every nonresidential structure, as set forth in the approved general development plan and pursuant to section 15 of P.L. 1975, c. 217 (C. 52:27D-133). If the municipality does not receive such notification at the completion of any section of the development, the municipality, shall notify the developer, by certified mail, in order to determine whether or not the terms of the approved plan are being complied with.
If a developer does not complete any section of the development within eight months of the date provided for in the approved plan, or if at any time the municipality has cause to believe that the developer is not fulfilling his obligations pursuant to the approved plan, the municipality shall notify the developer, by certified mail, and the developer shall have 10 days within which to give evidence that he is fulfilling his obligations pursuant to the approved plan. the municipality thereafter shall conduct a hearing to determine whether or not the developer is in violation of the approved plan. If, after such a hearing, the municipality finds good cause to terminate the approval, it shall provide written notice of same to the developer and the approval shall be terminated 30 days thereafter.
b. in the event that a developer who has general development plan approval does not apply for preliminary approval for the planned development which is the subject of that general development plan approval within five years of the date upon which the general development plan has been approved by the planning board, the municipality shall have cause to terminate the approval. [Palatine I rationale is not applicable to general development plan approvals.]
General development plan satisfactory completion.
In the event that a development which is the subject of an approved general development plan is completed before the end of the term of the approval, the approval shall terminate with the completion of the development. For the purposes of this section, a development shall be considered complete on the date upon which a certificate of occupancy has been issued for the final residential or nonresidential structure in the last section of the development in accordance with the timing schedule set forth in the approved general development plan and the developer has fulfilled all of his obligations pursuant to the approval. [N.J.S.A. 40:55D-45.1 to 45.8].
II. VESTING.
A. INTRODUCTION.
The MLUL creates certain "vested rights" protections against changes in land use standards. Generally, municipalities may not change the terms or conditions of approvals except as those changes related to public health and safety. the period of protection varies according to the size and type of approval. the expiration of the protection period does not necessarily mean that the approval has lapsed. Approvals may remain in place until the zoning of the property in question is amended. Palatine I v. Planning Board, 133 N.J. 546, 553-554 (1993). Also, subdivision approval permitting phased development protects projects from zoning changes that occur after the subdivision approval is granted but before applicant seeks site plan approval for individual phases. B. & W. Associates v. Planning Board, 242 N.J. Super. 1, 4 (App. Div. 1990).
B. PLANNED (OR CONVENTIONAL) DEVELOPMENTS UNDER 50 ACRES.
"Preliminary approval of a major subdivision pursuant to section 36 of P.L. 1975, c. 291 (C. 40:55D-48) or of a site plan pursuant to section 34 of P.L. 1975, c. 291 (C. 40:55D-46) shall, except as provided in subsection d. of this section, confer upon the applicant the following rights for a 3-year period from the date on which the resolution of preliminary approval is adopted:
a. That the general terms and conditions on which preliminary approval was granted shall not be changed, including but not limited to use requirements; layout and design standards for streets, curbs and sidewalks; lot size; yard dimensions and off-tract improvements; and, in the case of a site plan, any requirements peculiar to site plan approval pursuant to section 29.3 of P.L. 1975, c. 291 (C. 40:55D-41); except that nothing herein shall be construed to prevent the municipality from modifying by ordinance such general terms and conditions of preliminary approval as relate to public health and safety.
b. That the applicant may submit for final approval on or before the expiration date of preliminary approval the whole or a section or sections of the preliminary subdivision plat or site plan, as the case may be; and
c. That the applicant may apply for and the planning board may grant extensions on such preliminary approval for additional periods of at least 1 year but not to exceed a total extension of 2 years, provided that if the design standards have been revised by ordinance, such revised standards may govern." (Emphasis added). [N.J.S.A. 40:55D-49a, b and c].
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"The zoning requirements applicable to the preliminary approval first granted and all other rights conferred upon the developer pursuant to section 37 of P.L. 1975, c. 291 (C. 40:55D-49), whether conditionally or otherwise, shall not be changed for a period of 2 years after the date on which the resolution of final approval is adopted; provided that in the case of a major subdivision the rights conferred by this section shall expire if the plat has not been duly recorded within the time period provided in section 42 of P.L. 1975, c. 291 (C. 40:55D-54). If the developer has followed the standards prescribed for final approval, and, in the case of a subdivision, has duly recorded the plat as required in section 42 of P.L. 1975, c. 291(C.40:55D-54), the planning board may extend such period of protection for extensions of 1 year but not to exceed three extensions. Notwithstanding any other provisions of this act, the granting of final approval terminates the time period of preliminary approval pursuant to section 37 of P.L. 1975, c. 2.91 (C. 40:55D-49) for the section granted final approval." (Emphasis added) [N.J.S.A. 40:55D-52a].
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The protections applicable to minor site plans and minor subdivisions are set forth in N.J.S.A. 40:55D-46.1c and N.J.S.A. 40:55D-47e.
C. PLANNED (OR CONVENTIONAL) DEVELOPMENTS OVER 50 ACRES BUT WITHOUT GDP APPROVAL.
"In the case of a [preliminary approval for a] subdivision of or site plan for an area of 50 acres or more, the planning board may grant the rights referred to in subsections a., b., and c. of this section for such period of time, longer than 3 years, as shall be determined by the planning board to be reasonable taking into consideration (1) the number of dwelling units and nonresidential floor area permissible under preliminary approval, (2) economic conditions, and (3) the comprehensiveness of the development. the applicant may apply for thereafter and the planning board may thereafter grant an extension to preliminary approval for such additional period of time as shall be determined by the planning board to be reasonable taking into consideration (1) the number of dwelling units and nonresidential floor area permissible under preliminary approval, and (2) the potential number of dwelling units and nonresidential floor area of the section or sections awaiting final approval, (3) economic conditions and (4) the comprehensiveness of the development: provided that if the design standards have been revised, such revised standards may govern." (Emphasis added). [N.J.S.A. 40:55D-49d].
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"In the case of a [final approval for a] subdivision or site plan for a planned development of 50 acres or more, conventional subdivision or site plan for 150 acres or more, or site plan for development of a nonresidential floor area of 200,000 square feet or more, the planning board may grant the rights referred to in subsection a. of this section for such period of time, longer than 2 years, as shall be determined by the planning board to be reasonable taking into consideration (1) the number of dwelling units and nonresidential floor area permissible under final approval, (2) economic conditions and (3) the comprehensiveness of the development. the developer may apply for thereafter, and the planning board may thereafter grant, an extension of final approval for such additional period of time as shall be determined by the planning board to be reasonable taking into consideration (1) the number of dwelling units and nonresidential floor area permissible under final approval, (2) the number of dwelling units and nonresidential floor area remaining to be developed, (3) economic conditions and (4) the comprehensiveness of the development." (Emphasis added). [N.J.S.A. 40:55D-52b].
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See, Jordon Developers v. Pl. Bd., 256 N.J. Super. 676, 679-680 (App. Div. 1992), Oronomitz v. Pl. Bd., 257 N.J. Super. 347, 360-368 (L. Div. 1992), and Davis v. Pl. Bd., 327 N.J. Super. 535, 538 (App. Div. 2000) for analysis of factors relevant to requirements for extensions of approvals.
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D.
PHASING AS A MEANS TO EXTEND APPROVALS.
i) N.J.S.A. 40:55D-38(a)
and N.J.S.A. 40:55D-49b - permit applications
for development to be processed for final approval "by
stages or sections of development." N.J.S.A. 40:55D-53i
permits performance guarantees to be posted by stage
or section of a development.
ii) Phasing a project affords a developer up to 10 years of approval protections for the latter phases of the project.
Example - Assume Project with 3 Phases:
- Phase I
- Preliminary Approval Protection - 3 years
- Final Approval Protection - 2 years plus 3 one-year extensions
- Total Protection for Phase I - 8 years of protection from zoning changes
- Phase II
- Preliminary Approval Protection - 3 years plus 1-year extension
- Final Approval Protection - 2 years plus 3 one-year extensions
- Total Protection for Phase II - 9 years of protection from zoning changes
- Phase III
- Preliminary Approval Protection - 3 years plus 2 one-year extensions
- Final Approval Protection -2 years plus 3 one-year extensions
- Total Protection for Phase III - 10 years of protection from zoning changes
E. EQUITABLE ESTOPPEL AS A MEANS TO PROTECT PROJECTS WHOSE APPROVAL PROTECTIONS HAVE LAPSED.
i) Definitions - estoppel is a judicially developed equitable concept which holds that because of a party's conduct, that party may be precluded from taking a course of action that would work an injustice and wrong to a second party who, with good reason and in good faith, has relied upon the first party's initial conduct.
ii) Estoppel has been applied against municipalities, where "the interests of justice, morality, and common fairness dictate."
a) Two clear circumstances where municipality has been barred under principles of equitable estoppel from applying an amended zoning ordinance to a landowner:
(1) where building permit or similar municipal authorization has been issued and there is substantial reliance upon that authorization (See, e.g., Gruber v Raritan Twp., 39 N.J. 1 (1962); Tremarco Corp. v Grazio, 32 N.J. 448 (1960));
Irwin v. Township of Neptune, 305 N.J. Super. 652 (App. Div. 1997), certif. dismissed, 157 N.J. 539 (1998)(Appellate Division held that the issuance of a building permit to allow the conversion of a hotel, which was a conditional use in the zone, to an exclusively apartment building, apartments being permitted only as accessory in a commercial/residential structure, clearly did not meet the stern tests required for invoking estoppel against municipal officials. the court held that the applicant could not reasonable rely on the permit granted and should seek a variance.)
Scardigli v. Borough of Haddonfield, 300 N.J. Super. 314 (App. Div. 1997)(Failure of municipality to object to sale of one of two undersized lots owned by the same person on the basis of merger precluded challenge by third party to sale several years later of second lot on basis of merger.)
Lehen v. Atlantic Highlands, 252 N.J. Super. 392 (App. Div. 1991) (Appellate Division held that the permit to "square off" the third floor of a boarding house was erroneously issued because it would cause the rental-room to apartment ratio to exceed that permitted in the municipality. the applicants expended substantial monies, some of which went beyond the scope of the permit. the court held that the municipality was estopped from preventing completion of the work that was within the scope of the permit but not estopped from preventing completion of work which went beyond the scope of the permit.)
But see, Palatine I v. Planning Bd., 133 N.J. 546 (1993) (New Jersey Supreme Court held that municipal planning board was not equitably estopped from denying final site plan approval and applying post preliminary site plan approval zoning amendments to a developer whose preliminary site plan approval and construction permit had expired)
(Three members of the Court dissented and pointed out that no published opinion had ever decided whether and under what circumstances delay of construction of a partially completed project can subject the unfinished portion to more restrictive zoning. the dissent argued that the case should have been remanded for the development of an equitable estoppel argument. They stated that the majority's position, which considered only the legal questions of the expiration of the permit and the statutory protection, was not in keeping with established equitable principles. Consideration of the estoppel issue would have included the municipality's responsibility for creation of the problem in adopting an ordinance that authorized issuance of a permit before final site plan approval.)
Sung Ji v. Atlantic City Zoning board of Adjustment, A-4191-98T2 (App. Div. 2000) (unpublished opinion) (Upholding denial of application for a certificate of nonconformity for a four-unit dwelling in a single-family zone, as the contract of sale placed plaintiffs on notice of the requirement to obtain the certificate, undercutting plaintiffs' equitable estoppel argument that the municipality could not preclude the use because it issued occupancy permits indicating compliance with all other ordinances)
Rodriguez v. Kearny Zoning Bd. of Adjustment, A-2562-98T3 (App. Div. 2000) (Board improperly denied use variance for 4 family multi-housing dwelling where property had been used for that purpose for 24 years and prior to change in zoning ordinance. Equitable considerations justify the relief sought.)
(2) where trial court has entered judgment ordering municipal approval for a particular use and the equities militate against the application of a subsequently adopted ordinance to bar that use/exception to "time of decision" rule. Kruvant v. Cedar Grove, 82 N.J. 435 (1980); Urban Farms, Inc. v. Franklin Lakes, 179 N.J. Super. 203 (App. Div. 1981); cert. denied 87 N.J. 428 (1981)).
Lake Shore Estates, Inc. v. Denville Township, 127 N.J. 394 (1992)
S.T.C. Corp. v. Planning Bd., Hillsborough, 194 N.J. Super. 333 (App. Div. 1984)(Ordinance adopted after unlawful denial does not apply)
Dinizo v. Planning Bd. of Westfield, 312 N.J. Super. 225 (Law Div. 1998)(Planning board's improper denial of subdivision approval and bulk variance applications for nonconforming conditions related to an existing house on plaintiff's lot and subsequent rezoning of the lot, which would require additional variances for the proposed subdivision, did not entitle the board to the benefit of the time of decision rule since board's error should not deprive applicant of the rights he would have otherwise obtained.)
Della Monica v. McDonald's Corp., A2464-99T1(App. Div. 2001) (unpublished opinion) (Appellate Division remanded to the Law Division to consider validity of subsequently adopted zoning ordinance, which would, if valid, require Law Division to uphold development approvals that the Law Division had overturned.)
Forrest v. Howell Twp. Planning Bd., A-420-99T1 (App. Div. 2000) (unpublished opinion) (Upholding determination that the discretionary time-of-decision rule did not require an application to be considered under a subsequently enacted ordinance requiring six-acre minimum lot size where Board originally approved subdivision application for three two-acre lots at a time when two-acre zoning applied to the property.)
Toll Bros, Inc. v. Township of West Windsor, 334 N.J. Super. 77 (App. Div. 2000), certif. dismissed, 168 N.J. 295 (2001) (Municipality seeking to alter a property owner's rights under a consent judgment of compliance must proceed pursuant to Rule 4:50-1(e), which authorizes relief where the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application) See also, Mount Olive Complex v. Township of Mount Olive, 340 N.J. Super. 511 (App. Div. 2001)
b) Any Estoppel determination, by its very nature, is particularly fact-specific to the circumstances of each situation. Palatine I v. Pl. Bd., 133 N.J. 546 (1993); Gruber v. Raritan Twp., 39 N.J. 1 (1962); Bridge v. Zoning Bd. of Ad-L, 223 N.J. Super. 587 (App. Div. 1989).
c) It has been held by a Trial Court that an equitable estoppel finding will be made only under exceptional circumstances. However, the developer in that case sought vested rights based only on a conceptual review, in direct contradiction to provision in the MLUL. Timber Properties, Inc. v. Chester Twp., 205 N.J. Super. 273 (Law Div. 1984)
iii) Estoppel analysis tends to involve whether municipal action was ultra wires or within the official scope of authority
i) ultra vires action (i.e. beyond the statutory powers of the municipal official) - No Estoppel because actions are "void"; and
ii) action within scope of authority - potential estoppel because action merely "voidable."
iv) A developer may not estop a non-municipal agency from imposing/upgrading its regulations based upon money spent in reliance upon a municipal approval. Ocean Acres, Inc. v. State, 168 N.J. Super. 597 (App. Div. 1979).
DESIGN
REVIEW
"Design
Review" has been defined as "the submission of a site
plan or building design for review by a design review
body constituted to comment or make recommendations
on the design or to grant approval." Moskowitz
and Lindbloom, the New Illustrated Book of Development
Definitions, 1993.
The
review of residential developments of all types, including
residential sections within a planned development,
is governed by the Residential Site Improvement Standards
("RSIS"). N.J.A.C. 5:21-1.1 through 8.1. RSIS
was promulgated by NJDCA to provide statewide improvement
criteria for streets, roads and parking facilities,
sidewalks, water supply, sanitary sewers and storm
water management. These improvement criteria were adopted
by the State to preclude the application of a multitude
of different housing requirements in favor of uniform
and equitable criteria, while seeking to provide cost
efficient and sound site plan standards. Compliance
with RSIS is mandatory, absent either a grant of a de minimis exception,
or waiver when adherence to a particular standard would
jeopardize public health and safety, or NJDCA approval
of an Agreement to Exceed Standards. N.J.A.C. 5:21-3.1,
3.2, 3.3, 3.6; N.J.A.C. 5:21-1.5(g). Mandatory
compliance was emphasized in a December 1999 Opinion
Letter written by the Attorney General in which he
states that "municipal planning boards and zoning boards
of adjustment are required to comply with RSIS in reviewing
and approving applications for residential development."
Some
municipalities have advanced the argument that the
RSIS were not written with multi-housing family projects
in mind and that many of the standards are not applicable
to this type of residential housing, especially if
the streets are private. Although RSIS may be easier
to apply to a traditional subdivision street design,
RSIS' definitions of a "Residential Access Street" and "Parking
Loop" are clearly applicable to multi-family housing,
whether the streets are public or private.
in New Jersey Shore Builders Association, Inc. vs. Township
of Dover, OCN-L-3635-00-PW (L. Div. 2001) (unreported
decision), the builders challenged an ordinance provision
which read as follows:
"The Planning Board shall require at least two separate meetings of ingress/egress for all multi-family housing projects."
In
support of this requirement, Dover contended that since
the RSIS did not contain any precise requirements which
would preclude a local ordinance requiring two means
of ingress or egress, Dover is free to adopt its own
standard.
In
finding that the ordinance provision was invalid, Judge
Serpentelli stated:
"It is evident to the court that the standards in N.J.A.C. 5:21-4.1 were meant to provide appropriate planning tools by which to determine suitable types, number and location of street in relationship to traffic flow and trip generation. in so doing, the RSIS do thoroughly and comprehensively address the access issue. Since the defendant admits that the RSIS are preemptive in the areas it covers and the court concludes that N.J.A.C. 5:21-4.1 does regulate access matters, the court holds that [the challenged ordinance] is invalid because it is in conflict with the clear intent and purpose of RSIS."
As
to the difference between "design standards" and improvement
standards, Judge Serpentelli stated:
The
court is aware that Dover's brief mentions, in passing,
that the challenged portion regarding ingress/egress
is in the nature of a design standard and not a site
improvement standard. Our Supreme Court suggested in N.J.
League of Municipalities, that a specific provision
of the RSIS could be attacked on the ground that it
intruded on the municipal zoning power, as applied.
However, the defendant never pursued this issue at
trial. in any event, the Court's decision makes it
doubtful that Dover could have prevailed with this
argument. Id. at 226-27.
* * *
Many
municipalities have created Development Review or Technical
Review Committees. the following is fairly typical
of the ordinances adopted to create such Committees:
"§150-76 DEVELOPMENT REVIEW COMMITTEE
[Cranbury Township, Middlesex County]
A
Development Review Committee shall be established to
review all applications for development or requests
for review presented to the Planning Board and the
Board of Adjustment.
A.
the Development Review Committee shall consist of five
(5) members. the appointees shall be two (2) members
from the Planning Board [one (1) of whom may be the
Mayor] to be appointed by the Chairperson, one (1)
member from the Zoning Board of Adjustment to be appointed
by the Board of Adjustment, the Township Planner and
the Township Engineer. the Zoning Officer and the Building
Inspector may provide advice to the Development Review
Committee as required. the terms of all members shall
be one (1) year, computed from the first day of January
of the year of appointment. Vacancies shall be filled
in the same manner as the original appointment and
those occurring other than by the expiration of a term,
shall be filled for the duration of the expired term.
Members shall continue serving after the expiration
of their terms until such time as their successors
shall be appointed.
B. the Development Review Committee shall conduct informal meetings as required, in order to review development applications. Applicants may appear on their own behalf or may appear through an attorney, architect or engineer.
C. the Development Review Committee shall have the following responsibilities:
(1) Recommend to the applicable Board whether the application is a minor or major development application.
(2) Determine compliance with the Township's zoning requirements, development regulations and design standards.
(3) Make recommendations on the design and technical elements of any application.
D.
the report of the Development Review Committee shall
be distributed to the Secretary of the Board where
the formal application is to be presented and to the
applicant. the report shall not be binding upon the
Planning Board, the Zoning Board or the applicant,
nor shall the applicant be relieved of any requirements
or regulations which have not been addressed in the
report."
The
authority for the creation of such Committees is set
forth in N.J.S.A. 40:55D-39(f), and provides
as follows:
Provisions
for the creation of a Site Plan Review Advisory Board
for the purpose of reviewing all site plan applications
and making recommendations to the planning board in
regard thereto.
A
trial court judge in Monmouth County has ruled that
Planning Board's cannot "informally" review development
applications at unnoticed workshop sessions. Stewart
v. Planning Bd. of Manalpan, 334 M.J. Super. 123
(L. Div. 1999). At the end of his opinion, Judge Lawson
provided the following "guidance" to Boards in his
vicinage:
"The
court would like to relate to the Boards in this vicinage,
that such informal review meetings are not permitted
by statute. Further, if Boards wish to continue this
practice of informal site plan review in the future,
they should petition the Legislature to pursue a statutory
amendment which would permit these types of sessions.
the review session discussed in the case at bar includes
inappropriate issues to be addressed as part of its
agenda. Such issues should be discussed at an applicant's
hearing with notice to interested parties."
As a result of the Stewart decision, some attorneys are advising their clients that they should provide "public notice" of Development Review Committee meetings. I disagree. the authority for and purpose of Development Review Committees is clearly set forth in the MLUL. in addition, the MLUL only requires that hearings conducted by a Planning Board or Board of Adjustment be noticed. Moreover, you can avoid the impact of the Stewart opinion by submitting "detailed" concept plans to a review body and seeking their "informal" comments. the concept review hearing does not have to be noticed (i.e., not an application for development). After this informal hearing, you can incorporate the Board's comments into fully engineered plans that are subsequently submitted, which the Board can review at a noticed hearing.
*
* *
The
1994 amendments to the MLUL clarify that only the Board
of Adjustment can grant certain types of variances,
however, Section 70d does not definitively establish
the quality of proof that is needed satisfy the positive
and negative criteria for the various types of d variances.
The
cases that deal with the different standards of proof
that every land use professional should be familiar
with are for d(1) (use) variances Medici v. PBR
Co., 107 N.J. 1(1987); Sica v. Board Adjustment
of the Township of Wall, 127 N.J. 152 (1992); SMR
of New York, Inc. v. Fairlawn Board of Adjustment,
152 N.J. 309 (1998) - the latter being a cell tower
case; for d2 (expansion of non-conforming use) variances Burbridge
v. Mine Hill Township, 117 N.J. 376 (1990); for
d3 (deviations from conditional use standards) variances Coventry
Square v. Westwood Board of Adjustment, 138 N.J.
285 (1994); and for d4 (increase in permitted floor
area ratio) variances Randolph Township Center v.
Township of Randolph, 324 N.J. Super 412 (App.
Div. 1999);
Another case that you should be familiar with is Engleside Condo v. Land Use Board, 301 N.J. Super. 328 (L. Div. 1997). This case will help you steer your applications into a "c" variance mode and away from Boards of Adjustment and the more difficult burden of establishing your entitlement to a d variance. in Engleside, the issue before Judge Serpentelli was whether the expansion of non-conforming structures requires a c or d variance. Essentially, the Applicant was seeking to bring 17 existing condominium units into compliance with the municipal floodplain ordinance which required adding decks that increased the total lot coverage and to slightly increase the size of the units by converting attic areas to lofts. the Board treated the application as a d variance and denied the variance and a companion site plan application. the Judge disagreed and ruled that "it is the expansion of the structures, not the use which necessitates the application for the variance in this case. the structures are in violation of numerous bulk requirements of the ordinance and the units within them also violate minimum square footage restrictions. the structures are also non-conforming, since they contain 17 dwelling units where only 4 can be constructed today. However, the use of the structure is conforming, since multi-family housing is a permitted use in the zone. As a result, the proper basis for the variance resides in NJSA 40:55d-70c." Judge Serpentelli's decision is also consistent with certain language in Section 70 (which he did not cite) which provides that "if a development application requests one or more variances but not a variance for a purpose enumerated in section d of this section, the decision on the requested variance or variances shall be rendered under subsection c of this section." the same analysis would apply to accessory structures, even if prohibited in the zone, as long as it is used in connection with a use which is permitted. On the other hand, accessory uses which are either not permitted by ordinance or which are accessory to a non-conforming principal use can only be permitted by a d variance.
HISTORIC PRESERVATION
Any
attorney filing a land use application should be mindful
of the various bodies of law aimed at protecting historical
sites. Both Federal and State laws, as well as many
municipal ordinances, have been enacted to protect
historical sties.
FEDERAL
LAW
On
the Federal level, the National Historic Preservation
Act of 1966 ("NHPA"), codified at 16 U.S.C.A. §470, et
seq., is controlling. the NHPA consists of four
major provisions:
1. Register
of Historic Places: the NHPA creates a Register
of Historic Places, which is the official listing
of the nation's historic properties and cultural
resources. the Register is administered by the National
Park Service in the Department of Interior. Districts,
sites, buildings, structures and objects "significant
in American history, architecture archeology, engineering
and culture" may be included on the Register. 16 U.S.C.A. §470a.
the criteria for evaluating properties nominated
for inclusion in the Register is found in the Code
of Federal Regulations, 36 C.F.R. §60.2. The
criteria are generally based on the significance
of the proposed property in American history, architecture,
archeology, engineering and culture. Thus, if a property
is associated with a significant historical event,
associated with the life of a significant historical
person or has physical characteristics unique to
a certain time period, it is more likely that the
property will be included in the Register.
The
most common method of property selection is by nomination
of the State Historic Preservation Officer ("SHPO").
Notice must be given to the property owner and the
local government. the nomination is then submitted
to a state review board. If the Board recommends inclusion
of the property in the Register, the application is
forwarded to the Keeper of the National Register in
Washington, D.C. Notice is then published in the Federal
Register and the nominations are reviewed by the Office
of Archeology and Historic Preservation of the National
Park Service. If approved, the property is then included
in the National Register.
It
is important to note that a 1980 amendment to NHPA
prevents a property from being listed in the National
Register if the property owner objects to its inclusion.
However, the property may still be "deemed to be "eligible
for listing," a characterization that can still impact
the property, as more fully described below.
2. Section
106 review process: If a property is listed on
the National Register, or even deemed "eligible for
listing," federal agencies must take into account
the effect of their undertakings on those properties.
Thus, Section 106 of the NHPA requires that an impact
review process occur, to ensure that federal agencies
do in fact take into account the effect upon historic
properties. Section 106 review does not prohibit
the federal government from taking action with respect
to such properties, but merely provides a process
wherein such action will be considered.
Only
federal action is considered in the Section 106 review
process. Proposed private actions and those only involving
state and or local governments are not subject to the
Section 106 review process.
Included
in the regulations governing the Section 106 review
process, is a requirement that consulting parties be
included in the process. the regulations list those
to be included as SHPO, local government, Indian tribes
and native Hawaiian organizations, as well as additional
parties with a demonstrated interest in the project.
in New Jersey it has been reported that this provision
has been used to include watershed planning and anti-development
groups as consulting parties even though their interests
are not with historic resources. Unfortunately, there
are no regulations on this process, leaving applicants
at the mercy of the state.
3. Advisory Council: NHPA created the Advisory Council on Historic Preservation, which advises the President and Congress on preservation issues. the advisory council also administers the Section 106 review process.
4. Preservation
Fund: NHPA also created the National Historic
Preservation Fund, which was to be used to identify
and restore historic sites. However, very limited
funding has occurred to date.
NHPA
also encourages state and local participation. Since
NHPA only requires the federal government to consider
the impact of its actions on properties contained in
the National Register, many sates have enacted laws
establishing a state register of historic places. At
the local level, NHPA provides a process wherein local
governments may be certified. If certified, local governments
may be eligible for the receipt of federal historic
preservation funds.
New Jersey LAW
Pursuant
to Statute, a New Jersey Register of Historic Places
has been established under the Department of Environmental
Protection and Energy ("NJDEP") N.J.S.A. 13:1B-15.128.
the State Register is a listing of areas sites, structures
and objects within the State determined to have "significant
historical, archeological, architectural or cultural
value." Id.
The
NJDEP Commissioner has established the criteria for
receiving and acting on nominations and approvals for
inclusion of properties on the State Register of Historic
Places. N.J.S.A. 13:1B-15.129.
State
and local agencies are prohibited from undertaking "any
project which will encroach upon, damage or destroy
any area, site, structure or object included in the
State Register without application to and approval
from the Commissioner of NJDEP. N.J.S.A. 13:1B-15.131.
the Commissioner is required to solicit the recommendations
from the Historic Sites Council in connection with
any such application and may direct that public hearings
be held prior to granting or denying consent. Id.
For a recent example of how the prohibition on encroachment
upon a historic place is interpreted, See Beattystown
Community Council v. DEP, 313 N.J. Super. 236
(App. Div. 1998), upholding a roadway improvement project
in an historic district.
Effective
in 2000, an additional statutory provision specifically
provides a mechanism for the identification and preservation
of civil war monuments throughout the State. N.J.S.A. 13:1B-15.131a.
New Jersey's Municipal Land Use Law ("MLUL") authorizes
the creation of municipal historic preservation commissions. N.J.S.A. 40:55D-107.
the statute details the composition of such commissions,
requiring at least one member from each of three classes:
A) a person who is knowledgeable in building design
and construction or architectural history; B) a person
knowledgeable, or with a demonstrated interest, in
local history; and C) citizens of the municipality
who hold no other municipal office, position or employment,
except for membership on the planning board or board
of adjustment. Id. Commissions created according
to the statute must have 5, 7 or 9 regular members
and may have up to 2 alternates.
The
responsibilities of the commission appear to be primarily
advisory. For example, the commission may make "recommendations" to
the planning board on the historic preservation element
of the master plan and may advise the planning board
and board of adjustment on applications for development. Id.
the importance of input from the commission, however,
seems to be undercut by the explicit language of the
statute. While the planning board and board of adjustment
must refer to the commission every application for
development in the historic zoning district or pertaining
to historic sites, the statute explicitly states that
failure to refer such matters to the commission does
not invalidate any hearing or proceeding. N.J.S.A. 40:55D-110.
the statute goes on to state that the commission may
provide its advice to the board by presenting testimony
at the hearing on the application. Notably, however,
the statute is silent on the weight of such testimony.
the statute has been interpreted to mean that boards
retain their jurisdiction to grant or deny an application
despite the Commission's recommendations and any appeal
from such board action would follow the usual appeals
process. William M. Cox, New Jersey Zoning And Land
Use Administration §19-1.4 (2001 ed.). the board
should accord the Commission's recommendations the
same weight as it affords all expert testimony. Id.
It
is important to note that while municipalities may
adopt a set of zoning ordinances, planning boards or
boards of adjustment must rule on land use applications.
Boards may not delegate their authority to review committees.
Additionally, the ordinance must be sufficiently specific
and be rationally related to the governmental interests.
in Nadelson
v. Township of Millburn, 297 N.J. Super. 549
(Law Div. 1996), an historic zoning ordinance was
upheld as sufficiently clear even though it did not
include specific architectural features or styles
that would be acceptable, but rather required compatibility
with surrounding structures and sought to avoid obviously
incongruous styles. Nadelson reasoned that
the predominant architectural styles of properties
in the district are colonial or colonial revival
and that the characteristics of such styles are readily
identifiable. the court further reasoned that the
township's historic preservation design guidelines
would provide applicants with sufficient direction.
The
Commission's role with respect to applications for
permits is stronger than its role in board applications.
Applications for the issuance of permits pertaining
to historical sites or districts must be submitted
to the Commission. If the Commission recommends against
the issuance of a permit, the administrative officer
is required to deny issuance of the permit or include
any conditions in the permit that were recommended
by the Commission. N.J.S.A. 40:55D-111.
AESTHETIC
ZONING
An
area of law closely related to historical preservation
is that of aesthetic zoning. Preservation of aesthetics
has been held to be a legitimate end for a zoning ordinance,
based upon the purposes of the MLUL to "promote a desirable,
visual environment through creative development techniques
and good civic design and arrangement". N.J.S.A. 40:55D-2(i): Damurjian
vs. Board of Adjustment of the Township of Colts Neck,
299 N.J. Super 84 (App. Div. 1997). A board,
however, can only review applications in accordance
with requirements that are duly enacted in municipal
land use ordinances. Pizzo Mantin Group v. Township
of Randolph, 137 N.J. 216 (1994). Assuming
that a municipality has adopted an aesthetic zoning
ordinance, the ordinance must include sufficient standards
so that it is capable of being understood and complied
with by property owners who seek to meet its provisions. Morristown
Rd. Assoc. v. Mayor of Bernardsville, 163 N.J.
Super 58 (Law Div. 1978). the ordinance in Morristown
Rd. Assoc., required that "proposed structures
shall be related harmoniously to the terrain and to
the existing buildings in the vicinity that have a
visual relationship to the proposed buildings". Since
the ordinance was lacking sufficient standards to guide
applicants it was held to be invalid as impermissibly
vague.
In
addition to being sufficiently detailed, aesthetic
ordinances must also be rationally related to the governmental
interest, in order to be upheld. Thus, the ordinance
must directly advance the preservation of aesthetics,
which is articulated in the MLUL as one of the purposes
of zoning. A municipal ordinance prohibiting neon signs
was held to be invalid where the record failed to establish
how a ban on neon would advance the interest of aesthetics. State
v. Calabria Gillette Liquor, et al, 301 N.J.Super 96
(Law Div. 1997).
An ordinance requiring each single family home to have a minimum of two off-street parking spaces, one of which had to be in a garage, was upheld by the New Jersey Supreme Court in Zilinsky v. Zoning Board of Adjustment of Verona, 105 N.J. 363 (1987). the Court in Zilinksy reasoned that the ordinance was a rational method of advancing the legitimate municipal interest in decreasing traffic congestion.
An ordinance must also be reasonable as applied to a specific piece of property. Ordinances requiring "Early American" architecture and prohibiting construction of "modern flat roofs" was held to be arbitrary as applied to plaintiff's property in Hankins v. Borough of Rockleigh, 55 N.J.Super, 132 (App. Div. 1959). the record showed that of the 60 homes in Rockleigh, at least 11 were modern style buildings. Furthermore, a modern gas station and other modern buildings were located within 400 feet of plaintiff's property. Thus, due to the existing architectural styles, which are not in conformity with "Early American" design, the court held that application of the ordinance to plaintiff's property would be clearly unreasonable and arbitrary.
RECENT
DEVELOPMENTS
LARGE LOT ZONING TO PREVENT DEVELOPMENT
A
Reversal of Fortune
Kirby
v. Township Committee of Bedminster, et al.,
341 N.J. Super 276 (App. Div. 2001). in this case,
Plaintiff, the owner of a large tract of land in
Bedminster Township, challenged the rezoning of his
property from an R-3 Rural Residential Zone permitting
one residence for every three (3) acres to an R-10
Rural Zone permitting one residence for every ten
(10) acres. the ordinance re-zoning the Plaintiff's
property was adopted subsequent to and in accordance
with a new master plan adopted by the Township. The
court upheld the trial court's determination that
the re-zoning was consistent with a legitimate purpose,
i.e. to preserve the special character of the countryside
and protect valuable natural resources and environmentally
sensitive lands, and that the ordinance was consistent
with the Township's newly adopted master plan. In
determining whether the ordinance was valid as applied
to Plaintiff's property, the court acknowledged that
Plaintiff's property was different than other property
in the R-10 Zone, and could easily accommodate more
intensive zoning, as was confirmed by the court appointed
expert. Yet, the court held that it was not the court's
function to distinguish between two valid planning
views and that the distinctions between Plaintiff's
property and other property in the R-10 Zone were
insufficient to invalidate the zoning as it applied
to Plaintiff's property.
After
the holding in Kirby, it appeared that it would
be difficult for a developer or landowner to challenge
large lot zoning ordinance as applied to such developers
or landowner's property. the Kirby court did
not appear willing to analyze too critically the various
reasons upon which the Township based large lot zoning
with respect to a specific property, which would be
necessary for a successful as applied challenge. The
Court in Pheasant Bridge, however, appears to
change that.
Pheasant
Bridge Corporation v. Township of Warren, 169
N.J. 282 (2001). in this case, Plaintiff was the
owner of a 29 acre tract of land in Warren Township
that had a permitted use of one residence per 1 ½ acres
which plaintiff sought to develop as a residential
subdivision. Prior to Plaintiff perfecting its subdivision
application, the Township, in accordance with a newly
adopted Master Plan, rezoned the property to an environmental
protection zone (EP-250) in which one residence per
6 acres was a permitted use. the primary environmental
constraints in the zone consisted of open water,
steep slopes and 100 and 500 year flood plains. The
Court determined that the Township's goals of protecting
the environment, open space and agriculture, were
legitimate and therefore upheld the creation of the
EP-250 zone. However, when the Court analyzed whether
the zoning was valid as applied to Plaintiff's property,
it was willing and did analyze each of the expressed
environmental concerns and determined that they did
not affect Plaintiff's property. Therefore, the Court
held that the zoning ordinance as applied to Plaintiff's
property was invalid.
CONDEMNATION
TO PREVENT DEVELOPMENT
in Borough
of Essex Fells v. Kessler Institute et al.,
289 N.J. Super. 329 (Law Div. 1995), the Borough
attempted to prevent development of rehabilitation
facilities on a parcel of property by condemning
the property for a public park after there was a
public outcry over the proposed development. The
court set aside the condemnation action, holding
that it was based upon "improper motives, bad faith,
or some other consideration amounting to manifest
abuse of the power of eminent domain." Essex Fells at
337. Recently, the courts have shown their willingness
to look beyond a stated appropriate purpose for condemnation
to determine whether the stated purpose was just
a pretext for an improper purpose. the following
case is an example.
Township
of Monroe v. Gerard J. Noonan, et al. Docket
Nos. A-1443-99T1, A-1512-99T1 and A-1515-99T1 (N.J.
App. Div. March 9, 2001). in this case, the Plaintiffs
were the owners of 10 acres of land in a residential
zone that did not permit any form of commercial development.
A number of applications for variances were filed
by potential purchasers for commercial development
of the property. the Township solicited a concept
plan for the site that would include a walking park
with trails and landscaping, and subsequently sough
condemnation of the property for such purposes. The
action was purportedly in furtherance of the Township's
Master Plan goals. However, while the Master Plan
identified the need for public open space, it specifically
identified other available property in the Township,
not the Plaintiff's property. the court held that
the condemnation action should be set aside, concluding
that the stated purpose for acquiring the site for
open space and park use was a pretext for the improper
purpose of precluding commercial development on the
site.
THE
STATE DEVELOPMENT AND REDEVELOPMENT PLAN - Voluntary
or Mandatory
"A
major goal of the State Plan is to halt suburban sprawl,
characterized as a 'pattern of development that destroys
the character of the cultural landscape, is inefficient
in terms of public facilities and services and devoid
of the sense of place that has long defined the character
of life in New Jersey.'"
* * *
"Inclusory [housing] developments should be located in 'centers'In both planning areas 4B and 5, development and infrastructure should be guided to centers. We need not resolve the dispute between experts regarding the 'center' designation. Suffice it to say that the Township's adoption of [its planners] recommendations respecting center designation was a 'defensible exercise of [its] legislative judgment.'" (From Mt. Olive opinion.)
in Mt. Olive Complex et al. v. Township of Mt. Olive et al., 340 N.J. Super 511 (App. Div. 2001), Plaintiffs had an existing Planned Unit Development (PUD) approval which provided for a 400 unit apartment building. Plaintiffs failed to construct the improvements and, after declaring Plaintiff's approval expired, the Township rezoned the property to an R-A zone, which permitted one residential unit per two (2) acres, and later rezoned again to an RR-AA zone permitting only one residence per five (5) acres. Among other claims made by Plaintiffs, Plaintiffs challenged the rezoning of the property, and the trial court set aside the zoning ordinance. in reversing the trial court, the appellate court held that the zoning sought to be upheld by the Township was proper and furthered the Township's goals, as set forth in its Master Plan, of conserving open space and natural resources and the prevention of degradation of the environment. A major factor considered by the court in making this determination was the fact that the zoning conformed with the State Plan. However, the court did not consider that the prior zoning and PUD approval previously obtained by plaintiffs also conformed with and furthered the State Plan by developing a "center", which the plaintiff's property, already partially developed with apartments, could constitute.
The Mt.
Olive case, and the reaction to the conditional
veto of the New Redevelopment Area Bond Financing
Law (S-1316) which seeks to only finance a project
if it advances the State Plan, illustrate why municipalities
and the New Jersey League of Municipalities want
the State Plan to remain a Plan that has no "regulatory
effect." in Mt. Olive, the Township adopted
as part of its Master Plan those portions of the
State Plan that furthered its goals of preventing
development, and failed to include other portions
that might encourage additional development within
the Township. the deference given to the State Plan
by the courts will therefore support a municipality's
goals that are consistent with the State Plan and
are voluntarily incorporated into its Master Plan.
But when portions of the State Plan are adverse to
a municipality's interests, the municipality may
ignore such provisions and not include them in their
Master Plans or zoning, and the courts will not invalidate
zoning standards that are inconsistent with the State
Plan.
STATE
HIGHWAY ACCESS MANAGEMENT CODE
The
State Highway Access Management Act (N.J.S.A. 27:7-89-7-98)
required the New Jersey Department of Transportation
to adopt an Access Code based on the following principles:
The
purpose of the State Highway System is to serve as
a network of principal arterial routes for the safe
and efficient movement of people and goods.
Land
development and unrestricted access to the State Highway
System can impair its purpose.
The
public right to a safe and efficient highway system
takes precedence over highway access for lots abutting
a state highway.
The
Access Code was adopted in 1992 and can be found at N.J.A.C. 16:47-1.1
et seq., and Appendices A through M.
"The
New Jersey Department of Transportation has proposed
amendments to the State Highway Access Management regulations.
the proposed changes are significant and could make
access much more difficult and expensive, especially
in the areas where the State Plan directs growth. The
proposed changes affect signalization standards and
would apply to major application with planning review.
Under the existing rules, the non-state highway approaches
to a signalized intersection do not have to meet the
same standards as the state highway. Under the proposed
amendment, the non-state highway approaches would have
to meet the same level-of-service standards as the
state highway. This is almost impossible to do. At
a minimum, it will be very expensive, requiring additional
lanes and other intersection changes. It will be most
difficult in the more heavily developed areas of the
state, where growth is directed under the State Plan.
Traffic engineers estimate that the costs will be prohibitive
to residential development (seemingly the primary objective
of the State Plan).
Previously,
when DOT was considering major revisions to the access
code, it convened its advisory committee, of which
NJBA was a member. DOT abandoned that approach with
this rule making. It had not sought any input prior
to publishing the proposal. NJBA is consulting with
traffic engineers and will file comments on behalf
of the association." NJBA's Dimensions, August
2001.
The
traffic engineer's comments were submitted to NJDOT
on August 15, 2001. Copies will be provided upon receipt
of a written request.
STANDARDIZED
FORMS OF PERFORMANCE GUARANTY AND MAINTENANCE GUARANTY
Attached
are copies of the approved form of surety bond and
irrevocable stand by letter of credit approved by NJDCA
(See N.J.A.C. 5:39-1.1 et. seq.) pursuant to N.J.S.A. 40:55D-53(a)(b).
AMENDMENTS TO WASTEWATER MANAGEMENT PLANS AFTER ADOPTION OF N.J.A.C. 7:15-8
Attached are the following:
NJDEP Fact Sheet prepared in March 2001 explaining "What the [new subchapter 8] does." (6 pages)
NJDEP Instruction for completing the Water Quality Management Plan Amendment and revision pre-application form prepared in April 2001 (14 pages).
Executive Order No. 109 adopted by Governor Whitman on January 11, 2000 (2 pages).
N.J.A.C. 7:15-3.5. Water Quality Management Plan Review, Revision and Certification (2 pages).
See, Voorhees Retirement Residence, LLC vs. Camden County Municipal Utilities Authority, A-6154-98T5 (App. Div. 2000) (Unpublished Opinion). the Appellate Division ruled that the Authority cannot charge the same sewerage connection fee to single family detached and multi-family dwelling units, but must adjust its fee schedule to take into account the reduced daily flow associated with age-restricted uses.
