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New Jersey Land Use - 2nd Edition
About the Book:
New Jersey Land Use is the analytical, thoughtful treatise that practitioners and scholars alike reach for when trying to understand why the courts have proceeded in a particular way, or why the Legislature has chosen to adopt a specific law. Written by leading members of the Real Estate Practice Group at Sills Cummis & Gross, New Jersey Land Use offers practical guidance to assist someone in presenting an application to a planning board or zoning board of adjustment. It is this unique combination of practical and scholarly review of the law that distinguishes New Jersey Land Use.
Secondly, it is grounded in New Jersey. Unlike national reviews of land use law, the focus of this book is what has happened, why it has happened, and what difference it makes to the lawyer practicing or representing a client in New Jersey Land Use.
Chapter 1- Land Use Control in New Jersey: An Overview
1.01 Introduction
1.02 Private Land Use Controls
1.03 The Underlying Basis for Public Land Use Regulation: The Police Power
1.04 The Limits of Governmental Power to Regulate Land Use
1.05 The Changing Context of Land Use Controls in the United States
1.06 The Institutional Setting for Land Use Control in New Jersey
1.07 Direct Land Use Control and the Planning Process in New Jersey
1.08 Conflicts of Interest
Chapter 2- Zoning and Land Use Legislation
2.01 Introduction
2.02 Early Regulations in New Jersey
2.03 Constitutional Authorization
2.04 Expansion of State Regulation
2.05 Power to Zone
2.06 Planning versus Zoning
2.07 Requirement That Ordinance Be Consistent with the Master Plan
2.08 The Adoption Process
2.09 Challenges
2.10 Moratoria
2.11 Amendments
2.12 Power to Repeal
2.13 Interpretation
2.14 Rezoning
2.15 Ordinance Content
2.16 Particular Issues
2.17 Right of Access to Municipal Streets
2.18 Land in More Than One Municipality
2.19 Ownership and Use
Chapter 3- The Planning Board: Creation, Organization and Functions
3.01 Introduction
3.02 Membership
3.03 Conflicts of Interest
3.04 Vacancies
3.05 Removal from Office
3.06 Alternates
3.07 Officers and Staff
3.08 Fees Charged by Planning Board for Staff Review
3.09 Powers of the Planning Board
3.10 Minor versus Major Site Plans and Subdivisions
3.11 Off-Site and Off-Tract Improvements
3.12 Guarantees
3.13 Establishing Open Space and Reserving Public Areas
3.14 Official Map
3.15 Capital Improvement Program and Project Review
3.16 Applications by Governmental Agencies
3.17 Concept Review
3.18 Referral and Ancillary Powers
3.19 Rules and Procedures
3.20 Regional Planning Boards
3.21 Advisory Commissions
3.22 Historic Preservation
3.23 Environmental Commissions
Chapter 4- The Zoning Board
4.01 Introduction
4.02 The Role of the Zoning Board
4.03 Distinguishing the Zoning Board from the Planning Board
4.04 Creation and Organization of the Zoning Board
4.05 Powers of the Zoning Board
4.06 Statutory Powers under N.J.S.A. 40:55D-35 and 40:55D-36
4.07 Special Considerations for Public Hearings
4.08 Annual Reporting of Zoning Board Actions
4.09 "C" Variances
4.10 "D" Variances
4.11 Special Categories of Applications Frequently Considered by Zoning Boards
Chapter 5- Flexible Zoning and Land Use Control Devices
5.01 Introduction
5.02 Valid Flexible Zoning Devices
5.03 Flexible Business Zoning Concepts
5.04 Transfer of Land Development Rights
5.05 Unacceptable Flexible Zoning Devices
Chapter 6- Exclusionary Zoning: The Mount Laurel Doctrine, Fair Housing Act, and Council on Affordable Housing
6.01 Introduction
6.02 Calculating the Fair Share Obligation
6.03 Municipal Compliance
6.04 The COAH Process
6.05 Exclusionary Zoning Lawsuits
6.06 Procedural Issues in Mount Laurel Litigation
Chapter 7- Costs of Approval and Conflicts among Levels of Government
7.01 Introduction
7.02 Fees and Exactions
7.03 Overview of Preemption and Immunity
7.04 State Preemption
7.05 Immunity
7.06 Federal Preemption
Chapter 8- Eminent Domain and Inverse Condemnation
8.01 Constitutional Basis and Introductions
8.02 The "Public Use" Requirement and Blight
8.03 Physical Invasions
8.04 Regulatory Takings / Inverse Condemnation
8.05 Temporary Takings
8.06 Illegal Exactions
8.07 Bringing an Inverse Condemnation Claim
8.08 Condemnation Actions and the Eminent Domain Act of 1971
Chapter 9- The Land Use Application Process: A Practice Guide for the Attorney
9.01 Introduction
9.02 Preliminary Steps
9.03 Submitting the Application for Development to the Zoning Board of Adjustment or Planning Board
9.04 Alternatives Available in the Application Process
9.05 Notice of Hearing on the Application
9.06 Preparing for the Public Hearing
9.07 Subpoenaing Witnesses
9.08 Appearing at the Hearing
9.09 Conduct of the Public Hearing
9.10 Visit to the Site by Board Members
9.11 Transcript of the Hearing
9.12 Agency Deliberations and Voting
9.13 Agency Resolution
9.14 Automatic Approval When the Agency Fails to Act
9.15 Post-Decision Considerations
9.16 Appeal of the Decision
9.17 General Considerations Relating to Land Use Applications
Chapter 10- Land Use Litigation
10.01 Actions in Lieu of Prerogative Writs
10.02 Deference to the Government: the Presumption of Validity
10.03 Constitutional Protections
10.04 Procedural Issues
10.05 Other Causes of Action
10.06 Prosecuting the Litigation
10.07 Trial and the Court's Decision
10.08 Settlement
10.09 Appeals
10.10 Zoning Amendments: Time of Decision Rule
Table of Cases
Index
About the Editors/Authors:
Thomas Jay Hall is a Partner and Member of the Firm's Real Estate Practice Group and focuses on Land Use and Development Law. He Co-Chairs the Firm's Land Use and Development Law Group.
He was a Member of the Board of Directors (1989-1995) and Chair (1994-1995) of the Land Use Law Section of the New Jersey State Bar Association.
Prior to entering the practice of law in 1983, Mr. Hall enjoyed a long career in public service positions related to regional planning and land use for the State of New Jersey. These included serving as Policy and Planning Specialist in the Office of the Governor, Project Manager for the Farmland Preservation Demonstration Program, and as Supervisor for the Statewide Planning Section of the Division of State and Regional Planning.
John C. Phillips is currently Of Counsel to the Firm and a member of the Real Estate Practice Group. He also represented numerous builders and developers before local land use agencies and served as the Planning Board attorney for Warren Township for 15 years and as municipal attorney for the Township of Berkeley Heights for 11 years.
Steven R. Tombalakian is an Associate in the Firm's Real Estate Practice Group and focuses on land use and development law. Mr.Tombalakian received a B.E. in Civil Engineering and an M.E. in Environmental Engineering at Stevens Institute of Technology and his J.D. from Seton Hall University School of Law.
Noah Bronkesh is a Member of the Firm's Real Estate Practice Group. Mr. Bronkesh received his B.A., magna cum laude, from Temple University and his J.D. from New York University. He is admitted to practice in the States of New Jersey and New York.
Peter M. Flannery is an Associate with the Firm's Real Estate Practice Group and focuses on land use and development law. He counsels clients on a variety of land use, redevelopment, and historic preservation issues, including representing them before governing bodies, planning boards and boards of adjustment seeking approval of mixed use projects, subdivisions, site plans and variances; and for applications for permits before various state agencies.
Andrew Lettington is an Associate in the Firm's Real Estate Practice Group and focuses on land use and development law. Mr. Lettington received his L.L.B. from the University of Wales, College of Cardiff and his J.D. from Rutgers School of Law-Newark. He is admitted to practice in the State of New Jersey.
Senior Contributing Editor:
Robert Axel Kasuba is an Associate in the Firm's Real Estate Practice Group and focuses on land use litigation and affordable housing issues. Mr.Kasuba received his B.A. from Rutgers University and his J.D. from Boston University School of Law
