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Opinion: Developers Benefit While Environmentalists Suffer Double Setback

Two little-noticed decisions could gag environmentalists and impede elected officials who want to tighten planning regulations

Credit: Amanda Brown
R. William Potter

As we swelter in the dog days of summer, two setbacks to environmental protection may have escaped public notice.

First, a planning board ruled that advocacy groups – specifically, the Sierra Club and Delaware Riverkeeper Network – had no right to speak or be heard during a public hearing on a major land-use development. Why? Because they are not local residents and don’t own property impacted by the project.

Since 90 percent or more of major land-use decisions are rendered at the local level, this “gag the greens” ruling – if it spreads and doesn’t get reversed in court – could gavel into silence environmental voices, and deprive decision-makers of critical information and advice.

Second, the Appellate Division of Superior Court held that a 2010 law substituting the “time of submission” rule for the longstanding “time of decision rule” in land-use controversies is a one-way street. The law, according to the judges, exempts a builder from having to comply with more restrictive regulations enacted after the developer has submitted a zoning application and before a final decision.

But the developer can take full advantage of any newly enacted zoning rules if they loosen controls and favor the developer. In short, this court case, JSR v. South Toms River Planning Board, holds that the “time of submission” amendment to the Municipal Land-Use Law serves only one purpose: Protection of developers against the local democratic process.

This reading of the law strips a local governing body of its power to impose new zoning rules after a development application has been submitted, unless the change benefits the developer.

Let’s take a closer look at these two decisions.

First, the “gag the greenies” rule. On July 6, the planning board of Greenwich Township, on the Delaware River opposite Philadelphia international Airport, held a public hearing on an apparently innocuous zoning application to construct two warehouses and a parking lot.

The Sierra Club and Delaware Riverkeeper arrived at the hearing intending to testify that this was no ordinary project. It was the first piece of a much larger plan to build a “multi use deep-water seaport,” according to the applicant, Delaware River Partners. Among the intended products is the export of natural gas liquids (NGL), presumably supplied by fracking gas mined in Pennsylvania.

They also intended to warn of potential chemical contamination of the site, adjacent to a residential neighborhood called Gibbstown. For several decades the site was part of a DuPont chemical facility and a munitions factory, both long since departed, but possibly leaving carcinogenic contamination behind in the soil.

(Disclosure, this law firm was retained to advise a Gibbstown resident who spoke in opposition to the project.)

After waiting for almost two hours to speak, the Sierra Club and Riverkeeper representatives were told to sit down and keep quiet. Why? They did not own property in the Township or nearby. In legalese, they had no “standing” to speak, no matter how important their message. Not only did this violate their First Amendment rights but it deprived the planning board of potentially vital testimony.

This ruling ignored decades of court cases expanding the “standing” of environmental groups and just plain citizens to advocate for a better environment. Also, the “Environmental Rights Act (ERA) confers “standing” on every New Jersey resident to participate in government hearings, and to sue to enforce any environmental regulation -- and even to collect the cost of hiring an attorney to do the heavy lifting in court.

Now let’s review the South Toms River case, handed down on July 27. On its face, this “time of submission” statute evenhandedly prevents the imposition of any new zoning amendments -- be they pro-environment or pro-developer – if enacted during the review of an application. But that’s not how the court reads the law which declares as follows:

“Notwithstanding any provision of law to the contrary, those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development, and any decision made with regard to that application for development.”

As if to remove any doubt as to the legislative intent, the next sentence reads: “Any provisions of an ordinance, except those relating to health and public safety, that are adopted subsequent to the date of submission of an application for development, shall not be applicable to that application for development.”

The statute does not say the “time of submission” law applies only to bar more restrictive zoning ordinances enacted “subsequent to the date of submission of application for development,” but that is how the court read the 2010 law.

As a result, local elected officials cannot tighten regulations and apply the new enactments to a pending project but it’s open season to pass laws that benefit a developer application that may be facing stiff public opposition. As the court reads it, this law benefits only developers.

There is a fig leaf of validity to this reading of the “time of submission” law. Developers should have some right to rely on the law as it existed when they apply for permits. And they did. The “time of decision” rule had an exception for “reasonable reliance,” thereby inviting a court to weigh the relative equities on a case-by-case basis.

This court case does away with that balancing process, and substitutes a view of the 2010 statute that has no basis in what the law actually says. So how did the three-judge panel, one step below the Supreme Court, reach its conclusion in effect rewriting the law?

The judges quoted statements by two persons – the bill’s sponsor and the governor – to justify the court’s disregard of the “plain language” rule, which holds that if a statute doesn’t say something, the court can’t rewrite the law to include it.

The bill’s sponsor said that its intent was to “prohibit municipalities from responding to an application for development by changing the law to frustrate that application” no matter what the statute says, categorically prohibiting the imposition of any new local land-use law changes to a pending application, whether pro- or anti-development.

Next, the court quoted from Governor Christie’s signing statement: “This legislation makes common sense changes to improve the application process and moves New Jersey in the right direction of providing a friendlier environment for the job creators...”

So, as you go to the Jersey Shore for some end of summer R and R, consider what you can do in the fall to counter these two potential body blows to the environment: Planning boards can silence pro-environment testimony and local elected officials are divested of their traditional authority to patch up leaky development controls while a builder application is pending.

R. William Potter is a partner in the Princeton-based law firm Potter and Dickson. The views expressed are his own and do not necessarily reflect the views of the firm or any client.

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