Appeals Court Questions Municipal Ordinances On Abandonment Of Nonconforming Use

April 10, 2015 | No Comments
Posted by Paul H. Schneider

Under New Jersey’s Municipal Land Use Law (MLUL), any nonconforming use or structure lawfully existing at the time of the passage of an ordinance making the use or structure nonconforming − sometimes called a prior nonconforming use − may be continued indefinitely. However, this right is lost if the use or structure is abandoned. Abandonment depends on the owner’s subjective intent. Discontinuing the use for a lengthy period of time may be one factor suggesting an owner’s intent to abandon the building or use, but the passage of time alone is not dispositive.

Nonetheless, some towns have ordinances that automatically deem a use or structure to be abandoned if the use is discontinued for a specified period of time. In the recent decision of Harrison Redevelopment Agency v. FER Boulevard Realty Corp., the Appellate Division of Superior Court emphasized that the passage of time alone is not controlling in determining whether the owner intended to abandon the prior nonconforming use, and such an ordinance may be struck down.

During the Great Recession, many businesses have been forced to close, discontinuing established uses and leaving buildings unoccupied for extended periods of time, yet the property owner intended to resume the use once economic conditions improved. This decision emphasizes that municipalities cannot deny rights to a prior nonconforming use simply because of the passage of time.

Affordable Housing Is Now In The Hands of the Trial Courts

March 10, 2015 | No Comments
Posted by Donna McBarron

This morning, the New Jersey Supreme Court issued an Order and unanimous Opinion on COAH’s failure to adopt third round affordable housing regulations. In a nutshell, it held that due to COAH’s inaction, “there no longer exists a legitimate basis to block access to the courts.” Although the Supreme Court dissolved the exhaustion-of-remedies requirement from the Fair Housing Act, which encouraged voluntary compliance with affordable housing obligations through an administrative forum (COAH), it did not immediately open the floodgates for litigation.

Rather, the Supreme Court established a process for municipalities that had been previously processing their plans through COAH to file their plans with the trial court. These municipalities have 30 days from the effective date of the Order, which is not for another 90 days, to file a declaratory action with the court.

For the full article click here.

The Disaster Control Act Does Not Grant A Municipality With The Power To Acquire Perpetual Interests In Property

February 27, 2015 | No Comments
Posted by Afiyfa Ellington

In Minke Family Trust v. Township of Long Beach, Superior Court of New Jersey, Law Division, Ocean County, Docket No. OCN-L-3033-14 (Law Div. Feb. 13, 2015), Honorable Vincent J. Grasso, A.J.S.C. held that the shore protection provisions of the Disaster Control Act (“DCA”), N.J.S.A. App. A:9-51.5 to -51.9, does not empower the Township of Long Beach (“Township”) with the legal authority to declare an immediate taking and record a deed of “perpetual and assignable easement and right of way” against plaintiff’s property, in furtherance of a shore protection project for dune replenishment and flood reduction measures, without instituting a condemnation proceeding pursuant to the Eminent Domain Act, N.J.S.A. 20:3-1 to 20:4-22.  Judge Grasso held that if the Township sought to acquire perpetual interests in plaintiff’s property, it must adopt an ordinance authorizing the acquisition under the DCA and comply with the procedural requirements of the Eminent Domain Act.  Judge Grasso did acknowledge that the DCA authorizes the government to enter the property and take control and possession of the property to perform acts necessary during an emergency.

No Statute Of Limitations For Spill Act Contribution Claims

January 28, 2015 | No Comments
Posted by Paul H. Schneider

The general statute of limitations for claims alleging injury to real property is six years.  However, a recent decision of the New Jersey Supreme Court ruled that private claims for contribution made pursuant to the New Jersey Spill Compensation and Control Act (Spill Act) are not subject to any statute of limitations. Read more

Supreme Court Reinstates Downzoning Ordinance

January 23, 2015 | No Comments
Posted by Steven M. Dalton

Property owners who had successfully challenged a municipal open space ordinance that downzoned their property from one unit per acre to one unit per twenty acres on the purported basis of promoting “smart growth” and protection of environmentally sensitive lands achieved only a short-lived victory.  In the January 22, 2015 decision of Griepenburg v. Ocean Township, the Supreme Court reversed the Appellate Division and reinstated a trial court decision upholding the validity of the ordinance. Read more

Town Need Not Address Master Plan Change

January 19, 2015 | No Comments
Posted by Paul H. Schneider

A New Jersey appeals court has ruled that a municipality is not required to respond to a proposed zoning change recommended by the town’s planning board in a master plan reexamination report.  Under New Jersey’s Municipal Land Use Law (MLUL), municipal planning boards are responsible for preparing master plans and reexamining those master plans at least every ten years.  Among other things, the periodic reexamination reports may recommend specific changes to zoning ordinances.  Read more

Safe Dam Act Casts Broad Net

January 6, 2015 | No Comments
Posted by Paul H. Schneider

The Safe Dam Act (SDA) requires “[a]n owner or person having control of a … dam,” such as the dams that form artificial lakes and other impoundments throughout New Jersey, to maintain the dam in accordance with current regulatory standards and to implement “any action ordered” by the Department of Environmental Protection (DEP) to correct unsafe conditions.  Many lakes and impoundments were created decades ago for agricultural or commercial purposes but are now enjoyed for recreation or scenic value.  Often the dams do not conform to current engineering standards, and compliance with the SDA can be costly. Read more

Permit Extension Act Signed Into Law

December 29, 2014 | No Comments
Posted by Michael J. Gross

Governor Christie signed the Permit Extension Act into law on Friday, December 26.  The law is applicable State-wide and as noted in our previous updates, continues the effective period of the Permit Extension Act of 2008 for an additional year.  The Act now expires December 31, 2015, with additional tolling of up to six months for certain qualifying approvals.

Coming Soon – “Final” ALJ Decisions

December 23, 2014 | No Comments
Posted by Steven M. Dalton

The Administrative Procedures Act (“APA”) was amended in 2013 to give agencies the authority to order that Administrative Law Judge (“ALJ”) decisions are deemed to be final with respect to certain categories of administrative cases. For such cases, the ALJ decision will not be subject to further review by the head of the agency. I previously wrote on the topic of finality in the adjudicatory hearing process (ALJ Decision Bill) highlighting the chilling effect that agency-head review of ALJ decisions can have on individual rights in the administrative process. Read more

Permit Extension Act – Legislative Passage

December 19, 2014 | No Comments
Posted by Michael J. Gross

As an update to Monday’s Alert, the Permit Extension Act passed the Assembly 67-0-8 and the Senate 31-5. It is now on the Governor’s desk for signature.

This update is not considered to be legal advice, and is intended for educational purposes only. For more information regarding the Permit Extension Act, please contact Giordano, Halleran & Ciesla’s Environmental Practice Group.