Opinion: Top 5 Reforms for Municipal Land-Use Law — a Hand-Picked List

R. William Potter | November 16, 2017 | Opinion
A much-needed overhaul of the complex zoning law that governs most development in the state should be high on new governor's agenda

Credit: Amanda Brown
R. William Potter
Not since the election of Brendan T. Byrne in 1975 to the first of two terms as New Jersey’s chief executive has a new governor come into office with such an ambitiously progressive agenda as Phil Murphy. His list of policy initiatives runs the gamut of issues from pledging to fully fund public-worker pensions to obtaining 100 percent of our electricity from renewable sources by 2050.

To that list I’ve recommended reestablishment of an independent Department of the Public Advocate to provide a “voice for the voiceless,” taking on controversial issues, even suing fellow Cabinet officers if necessary.

Now comes another important initiative that has been languishing in the shadows for too long and needs the attention of our new governor, armed with Democratic Party control of the Legislature:

Updating the Municipal Land-Use Law (MLUL), enacted early in the Byrne tenure, much tinkered with since and construed in sometimes inscrutable judicial precedent — leaving armies of land-use consultants, attorneys, and municipal boards to grapple with this complex zoning law that determines the fate of more than 90 percent of development in the state.

Here then is this lawyer’s top five reforms culled from my experience in the MLUL trenches:

1. Let planning boards reject projects due to unsafe traffic impacts:

Traffic is the leading issue during most planning-board reviews. But in a cursory 1986 ruling, Dunkin’ Donuts v. North Brunswick, the court prohibited zoning denial of an application if it is a “permitted use,” no matter how unsafe or overcrowded the roads are abutting the project. In one sentence the court’s “per curiam” (unsigned) ruling stripped planning boards of power to say “no” even if lives are at stake. “The authority to prohibit uses generating traffic into already congested streets with a high rate of accidents is an exercise of the zoning power vested in the municipal governing body.” But traffic questions — How much? What kind? What impacts? — are site-specific and can be determined only when a detailed application is submitted for board review. The Dunkin’ Donuts ruling and related precedent ignore this crucial fact.

2. Stormwater controls must be a key factor in major development reviews:

Perhaps only Florida is more vulnerable than New Jersey to flooding triggered by stormwater washing from “impervious surfaces” (roads, parking lots, roofs, even suburban lawns). Yet land-use boards too often approve developments with only a passing glance at the problem on condition that the applicant later submit a stormwater plan for review and approval by the municipal engineer who is usually a consultant in a civil engineering firm that may also be advising developers. Worst of all, this review is conducted in private meetings, unlike other impact evidence that must be heard in public and presented by witnesses testifying under oath and subject to questions, cross-examination, and rebuttal testimony.

3. Require solar panels on new construction:

The MLUL provides that each municipal master plan shall “encourage and promote … usage of renewable energy systems,” but this noble sentiment is not included in the zoning ordinance that is supposed to implement the master plan policies. As a result, vast swaths of housing and commercial structures have been erected without any attempt to install solar photovoltaic (PV) electric panels or even to orient the buildings to facilitate later retrofitting them with PV systems. In a perilous time of global climate change, this enforcement gap must be closed by requiring solar panels, unless the applicant builder demonstrates that solar is not feasible for some site-specific reason.

4. Public notice rules need updating:

Since it was enacted in 1975, the MLUL has provided for a minimal 10 days public notice of a hearing on a development application, whether it’s a single-family house or a million-square-foot shopping center complex anchored by a Walmart. While the courts have been steadfast in enforcing this 10-day notice rule, it is not nearly enough time for the public or even the land-use board to prepare for a hearing. Moreover, the 10 days run from the date the notice is published in a newspaper and mailed to neighbors within 200 feet of the project, but — given the vagaries of the mails — the notice may not be received until only five or six days remain before the hearing. For this reason, some towns have expanded the notice rule, but the courts have voided these efforts, holding that the statutory 10 days cannot be expanded. The MLUL should be amended to allow local government to require additional notice, especially for larger developments. Notice should also be posted on the municipal website along with all reports and plans filed by the developer.

5. Enact protection from SLAPP suits:

One of the most pernicious tactics employed by some take-no-prisoners developers to thwart opposition to their projects is to “sue them into silence” as one court described so-called strategic litigation against public participation (SLAPP). In SLAPP suits, developers may charge “objectors” with such obscure and scary-sounding torts as “defamation and slander,” “malicious abuse of process,” or “interference with contract rights.” The hope was never to prevail in such lawsuits but to intimidate the public into not objecting to projects or raising questions about harmful impacts. While some New Jersey courts have reacted swiftly to dismiss such baseless claims and even ordered the builders to pay the attorney’s fees of objectors who have had to defend against these “frivolous” efforts to silence them, but explicit statutory protection is necessary to end this practice once and for all — so that the public may exercise their First Amendment rights without fear of being sued by deep-pocket developers in reprisal.

Of course, to this attorney’s list of top five MLUL reforms clawing for action by a reform-minded Gov. Murphy, we could add many more — such as guaranteeing more affordable housing or resurrecting the state planning process — but he needs to start somewhere, and I recommend these five reforms as a first step in bringing the state’s system of land-use controls into the 21st century.