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Archive for March, 2013

New Jersey Land Use Update

Scales and Lamp USSC

There were no reported land use or zoning decisions out of the New Jersey appeals courts in the last two weeks. One unpublished case, Buckley v. Godlewski, focused on a challenge to the Stone Harbor ZBA’s decision to grant a second variance for a single property, without considering whether there had been sufficient changes in circumstance since the first variance had been granted for the latter application to survive a res judicata challenge. In a per curiam opinion, the two-judge panel wrote:

The [ZBA] improperly considered defendants’ second variance application under the applicable statutory criteria before first determining whether defendants had demonstrated changed circumstances or other good cause warranting reconsideration of their first variance application. For that reason, we are constrained to reverse and remand to the Board for “a correct application of the relevant principles of land use law.” (Citation omitted.)

It seems like there has been a lull in land use and zoning decisions recently. As always, the temporary New Jersey Courts link is alive for now, but the original opinion will be archived next week at the Rutgers Law Library in Newark.

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Princeton has a massive archive of Sanborn fire insurance maps of New Jersey, which it has now scanned and placed online. The maps depict the urbanism of the state from the 1880s through the 1920s, showing in fine detail all of the components that made up towns and cities during the heyday of heavy industry and the first great immigration wave.

Here’s an industrial slice of Newark, from 1892:

NewarkNorfolkStreet1892

Here’s Nassau and Witherspoon, in Princeton, from 1885:

PrincetonNassauWitherspoon1885

Here’s Rutgers College and the New Brunswick train station, from 1892:

NewBrunswickSomersetCollege1892

All before zoning. Great materials. One thing that strikes me whenever I look at Sanborn maps is the diversity of uses in Victorian neighborhoods, and how the live-work arrangement was so much more accessible to people with small land holdings in the pre-zoning era. If you look around 1892 Newark, you’ll find bakeries and saddle-makers’ shops mixed in among the unnamed row houses. You’ll also find large industrial sites. Clearly, the possibility of having a glue factory open up right next to one’s house was far from ideal, and the onset of increasingly heavy industries necessitated a more formal way of segregating nuisances from peaceful living and working spaces. But I wonder what role comprehensive zoning ultimately played in squashing what still remained of the home-based workshops tradition from the 19th century. There’s a certain democracy to business and industry when one can venture into productivity without a whole lot of overhead. But regulation has a tendency to create moats around marketplaces that protect those with deep pockets: Requiring prospective businesspersons to invest in properly-zoned real estate rather than resourcefully modifying an existing parcel is certainly one way of creating a formidable moat. And with zoning, all goods must be transported to market, because they can’t be made where the markets exist — another moat.

Given that land use regulation has the potential to create moats around all kinds of economic opportunities for individuals — not to mention its potential to stifle other forms of individualism, community-building, and general resourcefulness — I think the fundamental question of land use law is just how much land use regulation is necessary to achieve the objective of nuisance-avoidance, because (ideally) that point should be its limit. Keeping glue factories out of residential neighborhoods is a reasonable goal. But is keeping apartments out of single-family neighborhoods really the business of government? Or keeping retail space and offices away from housing? (And, if these development filters are important to some, why not let them work out common-law private covenants to achieve the same goals?) To their credit, the New Urbanists have raised some of these questions over the last generation. But their responses, to me, seem flawed: Better zoning! Form-based codes! Going from the mish-mosh of postwar Euclidean suburbia to the ultra-planned paradise (or dystopia) of pseudo-urban neighborhoods whose every inch is legally dictated by someone with graduate planning credentials and (in many cases) distorting political considerations.

Nassau Street, Princeton. Winter 2013.

As a counterpoint, Princeton was built without any of that, and it remains a great town — largely because it hasn’t changed very much. Look at the Sanborn map from 1885, and you’ll find liquor stores, a billiards club, bookstores, a pool hall, and hotels. It’s so well planned! But nobody governmentally authorized those businesses to be there. There was no years-long process of planning-board meetings; no formulaic response by applicants to mind-numbing RFPs; no political sycophancy to become an approved tenant of the borough’s official redeveloper. These businesses were on Nassau Street in 1885 because there was a university across the street; because it was logical for them to set up shop there, and so they did. And looking around the 1885 neighborhood, you’ll also find tenements, “work shops”, a sausage-making plant, watchmakers, a cabinet maker, and a bookbinder. Presumably, the attaching plates all have similar uses — none of which would ever make it past the planning board in such a neighborhood today. But, really, what harm did they do? And what is the cost in terms of the richness of our neighborhoods and the spirit of our culture when we accept the canceling of so many opportunities for people to work from or near home, in their chosen trades?

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Bergrin Guilty on Federal Counts

Luck ran out this week for Paul Bergrin — New Jersey’s baddest lawyer.

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shore1

The Bergen Record has a piece that describes the differing responses by New York and New Jersey to the aftermath of Hurricane Sandy. In New York, the Cuomo administration is intent on pushing a buyout program in Long Island that would pay homeowners the pre-storm market values for their properties, and encourage the abandonment of flood-prone areas. In New Jersey, the Christie administration is providing $10,000 subsidies to those who will rebuild and return to the Shore. For what it’s worth, I think Cuomo’s approach is the more sober of the two. But the emotional appeal of Christie’s plan is undeniable, and possibly irresistible in the aftermath of such devastation.

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The New Jersey Senate is considering legislation that would amend the Local Redevelopment and Housing Law (LRHL) to reflect the clarified blight prerequisite from the Gallenthin decision, and also to incorporate a response to the due process concerns that were raised in the DeRose case.

♦  S-2447 would rewrite the ambiguous language of 40A:12A-5(e) to clarify the blight requirement for takings.

The statute presently reads:

(e)    A growing lack or total lack of proper utilization of areas caused by the condition of the title, diverse ownership of the real property therein or other conditions, resulting in a stagnant or not fully productive condition of land potentially useful and valuable for contributing to and serving the public health, safety and welfare.

Post amendment, it would read:

(e)    A growing lack or total lack of proper utilization of areas caused by the condition of the title, diverse ownership of the real properties therein or other similar conditions which impede land assemblage or discourage the undertaking of improvements, resulting in a stagnant and unproductive condition of land potentially useful and valuable for contributing to and serving the public health, safety and welfare, which condition is presumed to be having a negative social or economic impact or otherwise being detrimental to the safety, health, morals, or welfare of the surrounding area or the community in general.

♦ The bill would create two distinct classes of redevelopment areas: condemnation and non-condemnation. Councils would be required to choose a class when directing their planning boards to investigate the potential for redevelopment among certain parcels, and future actions would be limited by their choices.

♦  The bill would strengthen the requirements for noticing property owners in potential redevelopment areas, particularly with regard to eminent domain in proposed condemnation redevelopment areas.

The bill is sponsored by two Democrats, Jeff Van Drew (Cape May) and Ron Rice (Essex). S-2447 cleared the Community and Urban Affairs committee with unanimous support (5-0) earlier this month. If you’re interested in how the states are tackling eminent domain issues in the post-Kelo landscape, then the markup is worth a look.

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Scales and Lamp USSCThere was one published decision on land use in the New Jersey appellate courts this week. Motley v. Borough of Seaside Park Z.B.A. addressed the question of destruction, as used in N.J.S.A. 40:55D-68, and upon which the continued toleration of a nonconforming use turns. In this case, the plaintiff-respondent submitted a plan to the Seaside Park Z.B.A. for certain renovations to his property, which contained two residential structures — a nonconforming use in what has been a single-family zone since the 1970s. The Board approved his plan, but upon getting to work the plaintiff’s contractor apparently discovered significant structural issues that required taking the structure down to its foundation and footings. After a building inspector observed the extent of the demolition, a code-enforcement officer issued a stop-work order. Plaintiff lost an appeal to the Z.B.A. to lift the order. The lawsuit followed.

At issue was whether the plaintiff’s extensive dismantling and re-mantling had merely constituted a partial destruction of the non-conforming use, which would have required that use to continue to be tolerated under the borough’s zoning ordinance; or whether his actions had constituted a total destruction, after which any new construction on the parcel would have to conform to the present specifications of the ordinance. The trial court found, among other things, that the plaintiff’s actions had only constituted a partial destruction, and that policy reasons (viz., the importance of encouraging the proper maintenance of non-conforming structures) also supported allowing the plaintiff to rebuild. Accordingly, the Law Division vacated the stop-work order. But in an opinion published this week, an Appellate Division panel reached different conclusions and reversed the trial court’s order. The A.D. noted that New Jersey case law is generally opposed to extending the lives of non-conforming uses. Comparing the facts with those of the Lacey case, and others, the court concluded that a total destruction had taken place. Thus, a variance would have to be obtained in order to build something on the parcel that contravened the land use ordinance. In addition, the court found that the plaintiff had flouted the limits that the Board had initially set on his actions. Finally, the panel was unpersuaded by the policy reasons given by the trial court. Accordingly, it reversed the lower court’s decision vacating the stop-work order.

There was one unreported land use decision in the A.D. last week. I missed it at the time, because I was tied up with an event at one of the research centers, so here’s the belated squib: In Sharbell Building Company LLC v. Planning Board of the Twp. of Robbinsville, a three-judge panel affirmed a final judgment of the Law Division that had reversed the Board’s denial of an application to convert an approved, age-restricted housing complex into a development for residents of all ages. The court held that state legislation facilitating the approval of such conversions (in response to the changing housing marketplace) superseded the township’s zoning ordinance; and that prior to rejecting the proposal, the Board had focused on the wrong issues when it considered the impact of possible additional children on the local tax base, rather than considering the land use implications of the proposal. (You’ve gotta love it.) As always, the temporary New Jersey Courts link is alive for now, but the original opinion will be archived at the Rutgers Law Library next week.

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