June 5, 2008
Re: A-2867, Permit Extension
Dear Member of the Assembly Housing and Local Government Committee:
The League of Municipalities has reviewed A-2867. While there may be some merit in
the concept, at this point in time, our review brings forth some comments and questions.
We are not prepared to take a position on the bill today, but we do want to bring these
concerns to your attention.
First, we are concerned that the tolling is retroactive to January 1, 2006, allowing for a
very large window. We suggest instead January 1 of the year in which the legislation is
enacted. Otherwise, the proposed date would toll expiration of approvals granted in 2000
to 2003, depending upon the time limit being 2,3,or 5 years of protection. (DEP typically
grants 5 years. The Municipal Land Use Law, ("MLLTL") for preliminary approval
provides for 3 years, with two one year extensions, for a total of 5 years.)
Second, we believe there should be an exception for changes in regulations, laws or
ordinances adopted for the protection of public health or safety. The MLUL, in both
NJSA 40:55D-49 and 52, with reference to preliminary and final approval, excepts fiom
the vested rights which attach to those approvals any changes in law which are adopted
for public health and safety reasons. In our opinion, A-2867 should do the same.
Third, there is a conflict in the language as to whether the proposal is to "toll" the running
of time for approvals or "extend" those approvals beyond what would otherwise be their
expiration date. This same issue arose with the first Permit Extension Act, and led to
much litigation.
The distinction is as follows. If it is a tolling provision, the running of time would be
stayed pending the period of protection, and start again after expiration of the statutory
protection. If an extension, the time would continue to run out, and the proposal would
simply extend the date of the protection to the end of the term under the bill. In the first
instance, a 5 year approval that has reached the end of year 2 would have three years left
at the end of the term. In the second instance, that same 5 year term would run out, and
at the end of the term of protection there would be no time left. See, for example, Section
4e for "extended" and 4a for "tolled".
Fourth, Section 4a would allow approvals to be extended well beyond the expiration of
any emergency. If one assumes the emergency will run until the end of 2012, the vested
rights could then pick up again and extend approvals out another 4+ years into 2017.
This is entirely too long a period of time. At worst, we argue that the time should be
through 2009, with the legislature having the ability then to readdress the issue.
Fifth, this bill would essentially freeze regulations and laws effecting development for a
period of 7 full years, from January 1,2006 until December 3 1,2012. This is entirely too
long a period to prevent governmental reaction to the needs of the public.
Sixth, Section 4e is unclear as to how it would be applied. It says if a tolled approval is"based upon the connection to a sanitary sewer system" (it being unclear what is meant
by the word "based"), the "permit holders" (it being unclear what "permit" is necessary to
gain the standing), will have priority over others who wish to connect if those later
projects did not receive "approval of a hookup" before the emergency. It would seem
that any developer with any approval, which becomes subject to the tolling, would then
have the ability to trump any later approval from connecting to a sewer system with
limited capacity, even though the earlier approval did not have sewer approval.
Seventh, nothing in this bill should be construed to prevent a municipality from allocating
scarce resources, such as sewer capacity, to projects for affordable housing, as those
projects should take constitutional precedent. For instance, the Section 4e priority for
sewer does not recognize any superior priority for affordable housing, whether it be
municipal construction or inclusionary development.
We would appreciate your consideration of these concerns.
Very truly yours
William G. Dressel, Jr.
Executive Director
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