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August 1, 2011

RE: S-2950/A-4128, Allows for modifications to land use approvals because of changed economics

Dear Mayor:

The League opposes S-2950 and A-4128, which allows for modifications to land use approvals because of changed economics, without the normal review of development applications. Fundamentally this legislation usurps, undermines, and overturns local zoning by effectively rescinding all applicable zoning of the property, and provides no adequate public safeguards. 

S-2950/A-4128 would provide for wholesale modifications, inconsistent with underlying zoning and master plans, to standing development approvals.  The proposed standards for review of such modifications are minimal.  These modifications are not to be treated as use variances, even though the proposed use is prohibited under the zoning requirements.  Further, the expedited process stipulated by the bill will be difficult for municipalities to meet and unfair to other applicants.  

A fundamental premise of land use law and sound planning is that land use decisions, including approvals of development applications and zoning, are made on the basis of the characteristics of the land, its environments, any unique characteristics and what is in the best interest of the public.  Such decisions should not be made on who happens to own the land, which is effectively what S-2950/A-4128 proposes.

Further, there is nothing to prohibit an applicant from seeking an amendment to an existing approval under the current provisions of the Municipal Land Use Law (MLUL).  It would, therefore, be more appropriate to rely upon the proven framework of the MLUL instead of seeking remedial legislation.

S-2950/A-4128 also provides a two-year window in which any development approval granted before 2006 or now in foreclosure or subject to a deed in lieu can apply for, and receive approval for, a use which is not permitted by ordinance.  The proposed criterion necessary to obtain an “adaptive approval” is too broad.  It is our understanding that the legislation is intended to address the number of foreclosed properties that are now in possession of banks.   We note that these criteria would include far more than just such foreclosed properties. 

Effectively, there would be no standards in place for the local land use board to apply, other than proof that the approval is no longer economically viable, which is inadequately defined.  There are substantive land use and zoning questions left unaddressed, which if applied incorrectly would severely undermine the very purpose of zoning for the protection of the general welfare. 

The bill is also unclear as to the standard to be applied to determine economic viability, which itself is a subjective term.   Any decision can be challenged if there are no standards to apply by the reviewing board.  The lack of standards would expose any approval or denial by the municipality to possible legal challenge.

The applicant would be allowed to challenge a denial by a summary procedure before the Court.  Likewise the Court will not have standards in place to assess the decision of the board.

S-2950/A-4128 also establishes an expedited approval process, which would prove difficulty for the boards to adhere to timeframe.  Section 3 of the bill requires the board to determine completeness of the application within 30 days. The board then has 60 days from the determination of completeness to rule on the application. This time frame is insufficient considering what may be proposed could be significant changes, inconsistent with the zoning or master plan of the municipality.    Further it is inequitable to require an expedited process for a proposed “adaptive application” while other pending applications are accorded lower priority.   It is unfair to other applicants for the “adaptive applications” to jump to the head of the line.

S-2950 is sponsored by Senators Jeff Van Drew and Steven Oroho and is assigned to the Senate Community and Urban Affairs Committee.   A-4128 is sponsored by Assemblyman Albert Coutinho and assigned to the Assembly Housing and Local Government Committee.

We would suggest contacting your State Legislators and ask them to oppose this legislation.  We have prepared a model resolution, available both as a pdf or word document, (  or ) for your consideration as well.

If you have any questions or need additional information on S-2950/A-4128 please contact Mike Cerra at or 609-695-3481 x120.

Thank you.

Very truly yours,

William G. Dressel, Jr.
Executive Director




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