The New Jersey State Supreme Court upheld a lower court’s decision to allow ambush acquisitions stating towns and municipalities could proactively condemn property to prevent development. It is the position of the Builders League of South Jersey and others that this decision, if allowed to stand, will have a chilling effect on development in New Jersey and a negative impact on families with school children and developers of projects deemed politically undesirable.

The question raised is whether or not the Takings Clause of the Fifth Amendment to the Constitution prohibits a municipality from condemning private property for “public use” when the municipality’s public use determination is ad hoc, pretextual, and not part of a comprehensive planning process.

You can download the petition here.

This week's New Jersey Legal Update is presented by Gary S. Forshner, Shareholder of Stark & Stark’s Real Estate Group.

You can download the New Jersey Legal Update Podcast # 53 here.(3.3MB)

Technorati Tags: New Jersey : Podcast :  MiPro : Real Estate :  Eminent Domain

For more information see our media advisory on this decision here.

Read and listen about the history of the Mt. Laurel v. MiPro case here, here, here and here (podcast).

You can read Stark & Stark's press release on the Mt. Laurel decision, which includes audio clips of Gary Forshner discussing the decision's impact here.

Technorati Tags: New Jersey : MiPro : Eminent Domain : Open Space

By way of background, this proposal provides that an invoice is automatically deemed approved and certified by an owner 10 days after the owner receives it, unless the owner disputes the amount in writing. It then requires the owner to make full payment to the contractor not more than 20 calendar days after the billing date specified in the contract. According to this proposal, all disputes regarding payment are submitted to binding arbitration.

This proposal was introduced by Senator Sweeney (D-3) in March, released from the Senate Labor Committee, and forwarded to the Senate Budget and Appropriations Committee for further review. The Assembly companion measure was introduced by Assemblyman Caraballo (D-29) earlier this month and forwarded to the Assembly Labor Committee for review.

Technorati Tags: New Jersey : Real Estate : Legislation : Prompt Pay : Contractor

Commissioner Campbell reportedly received some 10,000 emails in the two weeks after his proposal and heard from many thousands more thereafter. In light of the tremendous opposition to the regulations by industry, municipal, housing and other groups in the weeks after proposal of these regulations, Governor Codey extended the existing water quality management regulations, which were set to expire, effectively quashing the water quality management proposal. However, the companion wastewater management regulations, although hanging on life support by all reports, had not been withdrawn and could have been enacted at any time without further notice to the public. Happily, the proposed wastewater management regulations have now been withdrawn.

Certainly, the housing community and residents of this state can take a breather from this assault on affordable housing, we should not be resting easy either. As noted above, the current water quality management regulations are still set to expire in May and therefore newly inaugurated Governor Jon Corzine and new DEP Commissioner Lisa Jackson will have their opportunity to put their stamp on this important area of regulation during the early days of this administration, perhaps setting the tone for the next four years.

We encourage you to stay tuned. We know we will.

Technorati Tags: New Jersey : Real Estate : Environmental

The New Jersey Supreme Court will hear a challenge seeking to overturn an appeals court decision that upheld a municipality's condemnation of land to slow residential development. The Appellate Division had found that Mount Laurel Township did not abuse its eminent domain power when it condemned 16.3 acres. Developer Mipro Homes planned to build 23 single-family homes on the land and obtained final subdivision approval from the township planning board. After failing to acquire the site voluntarily, Mount Laurel brought a condemnation action. In Mount Laurel Township v. Mipro Homes, the developer contended that stopping residential development was not a legitimate use of eminent domain. Although a trial judge agreed and dismissed the condemnation action and awarded Mipro more than $219,000 in attorney fees, costs and expenses, the Appellate Division ruled unanimously for the township.

We will continue to monitor the situation and report on developments as they occur. Meanwhile, you can read an article on the Appellate Division's decision that I wrote with Vincent Mangini here (PDF).

Technorati Tags: New Jersey : Eminent Domain : Condemnation : Development : Real Estate

On Thursday February 10 2005, Gary Forshner, a member of the Firm's Commercial Real Estate Group conducted a Luncheon Seminar for the Mercer County Bar Association - Real Estate Section.

The seminar, Planning and Zoning 101, addressed issues concerning:

* Site Plans, Subdivisions, Variance and Other Appeals
* The Role of Municipal Officials and Boards
* State and Outside Agency Approval
* Superior Court Appeals - Complaints in Lieu of Prerogative Writs

You can listen to an audiocast of Gary's presentation here.

If you would like to download a copy of the program's agenda, click here (PDF).

The New Jersey Court of Appeals found that in this matter a hearing that resulted in final site plan approval and variances, was not inadequate when compared to the amount of previous hearings held on the project. It was claimed that the hearing in question, which approved the variances, was inadequate. The court found that there was no error in granting bulk variances since the grant of the variances was grounded in the purposes of zoning, the benefits outweighed any detriments. The variances were also found to not be a substantial detriment to the good of the public and they would not substantially impair the intent and purpose of the zone plan and zoning ordinance.

A reviewing court should allow site plan approval to stand where the Planning Board committed significant procedural and substantive errors in violation of the Municipal Land Use Law but the blameless applicant complied with all applicable zoning and site plan ordinances.