SENATE, No. 2950

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED JUNE 16, 2011

 


 

Sponsored by:

Senator  JEFF VAN DREW

District 1 (Cape May, Atlantic and Cumberland)

Senator  STEVEN V. OROHO

District 24 (Sussex, Hunterdon and Morris)

 

 

 

 

SYNOPSIS

     Allows for modifications to land use approvals because of changed economics.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning modifications to municipal land use approvals because of changed economic conditions..

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.  As used in this act:

     "Adaptive approval" means an approving board's modification of the terms and conditions of the board's initial approval of an application for development and modification from current zoning pursuant to the provisions of this act.  An adaptive approval shall not be considered a "use variance" or other "'d' variance" application pursuant to subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70).  An adaptive approval shall be considered an independent ground for relief, subject to the conditions set forth in this act. 

     "Application for adaptive approval" means the application form and all accompanying documents required by this act for approval of an adaptive approval.

     "Approving board" means the municipal or regional planning board, zoning board of adjustment, or joint land use board that issued the initial approval of an application for development under the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.).

 

     2.    a.  At anytime before the first day of the 25th month next following the effective date of this act an applicant may submit an application for an adaptive approval to the approving board.  An approving board shall have the legal authority to grant an adaptive approval without the need to apply the standards for the grant of a variance or other relief pursuant to section 57 of P.L.1975, c.291 (C.40:55D-70).  An approving board shall not grant an adaptive approval unless the initial application for development was submitted to the approving board prior to January 1, 2006 or the property that is the subject of the application for adaptive approval is owned by a lender through foreclosure or deed in lieu of foreclosure.

     b.    The application shall specify the changes being requested to the current zoning and to the existing approval and shall demonstrate that the project is no longer economically viable as originally approved because it meets at least one of the following conditions:

     (1)   the current zoning or existing approval does not provide the property with an economically viable use;

     (2)   no feasible market exists for development of the property based upon the property’s current zoning or existing approval; or

     (3)   financing for the development of the property under current zoning or the existing approval is not readily available.

     c.     An application for an adaptive approval shall include the following documentation or the applicant shall provide testimony at the hearing sufficient to establish:

     (1)   the relief sought is necessitated by a change in demographic, market, or financial conditions and that the project cannot move forward or be completed as initially approved due to any of those changed circumstances;

     (2)   the water supply system is adequate to meet the needs of the use proposed by the adaptive approval;

     (3)   the capacity of the sanitary sewer system is adequate to meet the projected flow requirements of the use proposed by the adaptive approval;

     (4)   the impact of the proposed adaptive approval upon roads, schools and other public service facilities;

     (5)   if the approval or the application includes residential use, the impact of the application upon regional housing needs and the effectiveness of the application in providing housing units to meet market demand;

     (6)   the suitability of the site for the intensity of the use proposed by the adaptive approval, based upon the site’s soils, slopes, woodlands, wetlands, floodplains, aquifers, natural resources, and other natural features;

     (7)   the impact of the adaptive approval on the site’s soils, slopes, woodlands, wetlands, floodplains, aquifers, natural resources, and natural features;

     (8)   the impact of the adaptive approval on the preservation of agricultural and other land uses which are essential to public health and safety.

     d.    An approving board shall grant an adaptive approval if it determines that the application satisfies the requirements of this act and that the application can be granted without substantial detriment to the public good.

 

     3.    a.  An applicant seeking an adaptive approval shall file an application for adaptive approval with the approving board and simultaneously deliver a copy of the application to the municipal clerk of the municipality in which the property is located.  The approving board shall hold a hearing on each application for an adaptive approval.  The applicant shall provide notice of the hearing in the manner prescribed by section 7.1 of P.L.1975, c.291 (C.40:55D-12).

     b.    Within 30 days after the submission of an application for adaptive approval, the approving board shall advise the applicant in writing whether the application is complete, with the completeness to be determined based upon whether the applicant has submitted documentation addressing the issues described in section 2 of this act.  If a written assertion of incompleteness is not provided to the applicant within the 30-day period, the application shall be deemed complete for purposes of review by the approving board.  An applicant may appeal a written assertion of incompleteness to the court in a summary manner.  Such an appeal shall be filed within 30 days of the applicant's receipt of the board's written assertion of incompleteness.

     c.     The approving board shall render a decision on an application for an adaptive approval within 60 days of a determination of application completeness, unless the time frame is extended by the applicant.  In rendering its decision, the approving board shall issue a formal resolution providing the specific findings of the approving board regarding the adaptive approval.  If no such decision is rendered by the approving board within the time period, including extensions, the application shall be deemed approved and the applicant shall in such a case follow the procedures set forth in section 5 of P.L.1985, c.516 (C.40:55D-10.4).

     d.    If the approving board is the board of adjustment, the board of adjustment shall have the power to grant, to the same extent and subject to the same restrictions as the planning board, subdivision or site plan approval pursuant to the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.).  

     e.     An applicant may elect to submit an application for an adaptive approval and, subsequently, submit to the approving board a separate application for approval of a subdivision or site plan.

 

     4.    a. An approving board shall issue a resolution memorializing its decision on an application for an adaptive approval within the time period set forth in subsection g. of section 6 of P.L.1975, c.291 (C.40:55D-10).  In the event that an approving board denies an application for an adaptive approval or approves an application subject to conditions deemed unsatisfactory to the applicant, the applicant may appeal that determination to the court in a summary manner.  Such an appeal shall be filed within 30 days of the applicant's receipt of the resolution issued by the approving board.  The notice of appeal shall include the plans and reports, if any, submitted by the applicant to the approving board in support of the application for an adaptive approval, a copy of the transcript of the hearing before the approving board, and any other items that comprise the record before the approving board.

     b.    In deciding an appeal, the court shall consider the reasonableness of the decision of the approving board.  Upon finding that the adaptive approval should have been approved the court may make an order instructing the board to approve the adaptive development, along with any reasonable conditions of approval deemed necessary by the court.

 

     5.    This act shall take effect immediately.


STATEMENT

 

     This bill would establish a mechanism by which land use boards would approve modifications to existing land use approvals due to changed circumstances attributable to the economic crisis.  The economic emergency that has crippled the Nation has had a devastating effect on real estate values throughout New Jersey.  As underlying market conditions adjust to a changing economy, numerous development projects have been frozen in place.  Development projects that were conceived and approved prior to the economic downturn are no longer viable under today’s changed circumstances. 

     Under this bill, certain property owners that have preexisting land use approvals could submit applications for adaptive approvals to the boards that issued the preexisting approvals in order to modify the terms and conditions of the preexisting approvals and current zoning.  In order to be eligible to apply, the initial development application must have been submitted prior to January 1, 2006 or the property must be owned by a lender who took title through foreclosure.

     The application would be required to specify the changes being requested and to demonstrate that:

§         the current zoning or existing approval does not provide the property with an economically viable use;

§         no feasible market exists for development of the property based upon the property’s current zoning or existing approval; or

§         financing for the development of the property under current zoning or the existing approval is not readily available.

     An applicant for an adaptive approval would also be required to document that the relief sought is necessary because of a change in demographic, market, or financial conditions and that the project could not move forward or be completed as initially approved due to any of those changed circumstances.

     The bill requires an applicant for an adaptive approval to also show the following:

     the water supply system and the sanitary sewer system will be adequate to meet the needs of the proposed use;

     the impact of the proposal upon roads, schools and other public service facilities;

     the impact of the proposal upon regional housing needs and the effectiveness of the proposal in providing housing units to meet market demand;

     the suitability of the proposal for the site and the impact of the proposal upon the site’s natural features; and

     the impact of the proposal on the preservation of agricultural and other land uses which are essential to public health and safety.

     The bill would require the approving board to grant an adaptive approval if it determines that the applicant has complied with the requirements set forth in the bill and that the application can be granted without substantial detriment to the public good, to the extent it is not incompatible with the use of adjoining properties.

     The bill sets forth an expedited procedure for applications for adaptive approvals.  The bill requires the approving board to hold a hearing on each application for an adaptive approval and for the applicant to provide notice of the hearing.

     Within 30 days after the submission of an application for adaptive approval, the approving board shall advise the applicant in writing whether the application is complete.  If a written assertion of incompleteness is not provided to the applicant within the 30-day period, the application would be deemed complete for purposes of review by the approving board.  The bill requires the approving board to issue a formal resolution providing the specific findings of the approving board regarding the adaptive approval and provides a mechanism for default approvals if the board does not decide a matter within allowable timeframes.

     The bill provides an expedited judicial appeal process if an approving board finds an application to be incomplete, denies an application, or approves an application subject to conditions deemed unsatisfactory by the applicant.