Supreme Court allows enlargement of time for land use appeals

The New Jersey Supreme Court allowed the enlargement of the 45 days filing requirement to file an appeal of a land use decision. In the case of Hopewell Valley Citizens' Group, Inc. v. Berwind Property Group Development Co., Justice Long, writing for the Court considered the issue of whether an objector to a planning board’s grant of site plan approval is entitled, in the “interest of justice,” to an enlargement of time under the Civil Practice Rules. These rules require an interested party to file an appeal of a planning board approval within 45 days from the date of publication of the notice of decision.

The Supreme Court held that the circumstances presented in this case warrant enlargement of the forty-five-day period because “it is manifest that the interest of justice so requires.”

The Municipal Land Use Law provides that “[t]he period of time in which an appeal of the decision may be made shall run from the first publication of the decision, whether arranged by the municipality or the applicant.” N.J.S.A. 40:55D-10(i). Appeals from local land use decisions are accomplished by actions in lieu of prerogative writs. The Civil Practice Rules set forth the time limitations on the institution of such actions. Those rules (a) acknowledges a general limitations period of forty-five days “after the accrual of the right to the review, hearing or relief claimed . . . .” The portion of the rules relating to appeals of land use decisions, provides that no action shall be commenced “after 45 days from the publication of a notice once in the official newspaper of the municipality or a newspaper of general circulation in the municipality . . . .” A subsection of the rule provides: “The court may enlarge the period of time where it is manifest that the interest of justice so requires.”

It is undisputed that in this case the objector failed to meet the deadline imposed by the Rules insofar as it did not file its complaint within forty-five days of the first notice published by the developer. The Court’s task is to determine whether the objector is entitled, in the “interest of justice,” to an enlargement of time under the Rule and, hence, to an adjudication of the merits of its claim.

The Rule’s language suggests that a court has discretion to enlarge a time frame when it perceives a clear potential for injustice. The Rule was aimed at those who slumber on their rights. Certain cases are excepted from the rule governing limitation of actions. Included in that category were three traditional types of challenges: “important and novel constitutional questions”; “informal or ex parte determinations of legal questions by administrative officials”; and “important public rather than private interests which require adjudication or clarification.” The Court recognized that, as a general proposition, “ignorance of the existence of a cause of action will not prevent the running of a period of limitations except when there has been concealment.”

The court found that the Plaintiff was entirely reasonable in calling the Board Secretary for information on the date of publication of the notice of decision to determine the date of expiration of the period of time to appeal the land use board decision. Plaintiff was inadvertently misled. To be sure, the developer was blameless, but so was plaintiff. Further, the six-day delay was such that defendants could not have suffered prejudice sufficient to warrant the barring of this litigation. The Court held that this was the exact type of circumstances that the Rules were designed to address.

The decision stands for the proposition that developers can no longer rely on the time limitations for appeals to be strictly applied where an objector has not slept on its rights if such violation of the time limitation was based upon a mistake coupled with an objector’s reasonable reliance. The decision also points to the importance of a developer’s actions. In this instance, had the developer sent the publication to the objector, the result would have been different.

Reminder: Applications for Farmland Assessment DUE AUGUST 1st


Just a friendly reminder that applications for Farmland Assessment are due by August 1, 2010.  Late applications will be rejected, which could impose a significant tax liability on the unsuspecting property owner.  You can read more about farmland assessments at:



Rooftop Solar Panels - Green in More Ways Than One

A recent article in the Newark Star-Ledger highlighted the influx of solar energy projects in New Jersey and the financial incentives driving those projects.  Notable aspects of the article include:

  • The Board of Public Utilities ("BPU") developed a solar renewable-energy certificate program ("SREC") to create a marketplace for solar energy producers to trade energy with utilities.
  • Commercial installations account for 57 percent of the SRECs, or 84.32 megawatts, with 22 percent of the SRECs being generated by residential installations, and the balance from municipalities and schools.
  • Nearly $3 billion dollars have been granted to qualified applicants under the Section 1603 Payment in Lieu of Tax Credit programs.  Of that, $27 million dollars has been paid for 52 solar projects in New Jersey -- an average of more than a half million dollars for each project
  • In December 2009, Federal Express completed a 2.42 megawatt rooftop solar array at its distribution hub in Woodbridge, New Jersey.
  • In Edison, a food storage warehouse recently installed a system that will provide 45 percent of the plant's energy needs per year.

While time is running short, it is not too late to consider your rooftop for a solar panel installation.  The Stimulus Act requires that the project commence construction in 2010 in order to claim the 30% payment. 

The Statewide Non-residential Development Fee Suspension and Refund

On July 27, 2009 Governor Jon S.Corzine signed into law the New Jersey Economic Stimulus Act of 2009. Sections 37 through 39 of the New Jersey Economic Stimulus Act of 2009 suspend the Non-Residential Development Fee Act which was signed into law on July 17, 2008. As a result, developer’s will no longer be required to pay the 2.5 % development fee.

In addition, developers that have paid a non-residential development fee since July 17, 2008, may claim a refund of “the difference between the moneys committed prior to July 17, 2008 and the monies paid.” The Act provides that a developer can submit a claim for reimbursement of non-residential development if:

  • the developer paid a fee and the development received preliminary or final site plan approval prior to July 17, 2008; or
  • the developer paid a fee and the project was referred to a planning board by the state, a governing body, or other public agency for review prior to July 17, 2008; or
  • the developer paid a fee and the non-residential development is not subject to a fee pursuant to N.J.S.A. 40:55D-8.6 (which provides for contractual agreements to pay non-residential development fees)

A developer seeking a refund must submit the claim in writing, and a copy of the proof of payment, to the same entity to which the fee was paid on or before November 24, 2009.

Economic Stimulus Act of 2009

The Legislature and the Governor recently enacted a number of laws designed to minimize the impact of current conditions on New Jersey businesses and residents, including legislation providing incentives to create jobs and make business investments in this State.

The Economic Stimulus Act of 2009 authorizes developers to enter into agreements in qualifying economic redevelopment and growth grant incentive areas which means Planning Area 1 (Metropolitan), Planning Area 2 (Suburban), or a center as designated by the State Planning Commission; a transit village, as determined by the Commissioner of Transportation; and federally owned land approved for closure under a federal Base Realignment Closing Commission action. The redevelopment incentive grant agreement specifies the amount of the incentive grant to be awarded the developer, the frequency of payments, and the length of time, which shall not exceed 20 years, during which that reimbursement shall be granted. In no event shall the combined amount of the reimbursements under redevelopment incentive grant agreements with the State or municipality exceed 20 percent of the total cost of the project, exclusive of publicly-owned infrastructure. Up to 75 percent of the incremental local and state revenues generated and collected from the project  may be pledged towards the incentive grant.

The Act is intended to finance the project financing gap which means the part of the total redevelopment project cost, including return on investment, that remains to be financed after all other sources of capital have been accounted for, including, but not limited to, developer contributed capital, which shall not be less than 20 percent of the total project cost, and investor or financial entity capital or loans for which the developer, after making all good faith efforts to raise additional capital, certifies that additional capital cannot be raised from other sources. This Act is a tremendous incentive to developers in the targeted areas and is similar to laws we have used to help finance major casino expansions in New Jersey.

Supreme Court Upholds Jackson Township Tree Clearing Ordinance

On May 13th 2009 the New Jersey Supreme Court reversed the Superior Court and Appellate Division and held that the Township of Jackson’s tree removal ordinance is a valid exercise of police power because the details of the ordinance, including the tree replacement fee, the escrow fund, and the planting of trees and shrubs on public property when replanting at the original location is not feasible, are rationally related to the broad environmental goals that inform the ordinance. Rather than a land use regulation the court viewed the ordinance  as enabled under plenary state legislative authority using the  police power, which justifies legislation to further
the public health, safety, welfare, and morals. The Township specifically declared that it was enacting the tree removal ordinance under the police power statute, N.J.S.A. 40:48-2.  The Court distinguished the Ordinance from one enacted under the Municipal land Use Law and held that while the ordinance touches on the use of land, it is not a planning or zoning initiative that implicates the Municipal Land Use Law. As Police-power legislation  the Ordinance must not be unreasonable, arbitrary, or capricious. Additionally, the means must have a real and substantial relation to the object sought to be obtained. Ordinances enacted pursuant to the police power are presumptively valid. Absent a sufficient showing to the contrary, it will be assumed that the legislation rested upon some rational basis within the knowledge and experience of the legislature.generic environmental regulation.

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New Jersey's "Time of Decision" Rule: Time for Change

 If you have done any type of development work in New Jersey, you are probably familiar with the "Time of Decision Rule." And if you have been on the "developing" side of that work, it is likely you find the rule one of the most illogical and onerous rules in New Jersey. 

The "Time of Decision" rule is a judicially recognized principle that development decisions are to be made on the basis of laws, ordinances, and regulations in effect at the time the decision is rendered. The rule gives municipalities the authority to amend zoning ordinances while a development application is pending, in direct response to an undesirable application

It should be noted that most states do not have such a rule. In Pennsylvania, for instance, development applications are decided based upon zoning ordinances in effect at the time of submission of the application .

Some New Jersey legislators have recognized the problem with this rule. On January 8 of this year, A440 was introduced to eliminate the "Time of Decision" rule, and instead require municipalities to apply to applications the ordinances in effect at the time of submission. A440 was originally introduced last session as A3870 (S457).         

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