June 10, 2020

MSW Land Use Update with Roosevelt J. Donat, Esq. (June 2020) – Impacts of COVID-19 on New Jersey Real Estate Development

The novel coronavirus (COVID-19) has had a disruptive effect on every aspect of our lives, including personal relationships, our livelihoods, and business transactions, both large and small.

In New Jersey, local governments have had to contend with the challenges associated with COVID-19, as social distancing mandates have had an impact on every aspect of the economy, including construction and the municipal land use process – which have had a significant impact on both developers and contractors.

Several Executive Orders signed into law by Governor Phil Murphy have fundamentally changed the way land use practitioners in New Jersey ply their craft. Specifically, EO-103 declared a state of emergency throughout New Jersey, and EO-107, which restricted public gatherings (of any size) throughout the state and disrupted the MLUL-prescribed process for land use hearings. The extended State of Emergency associated with the COVID-19 pandemic has prevented public hearings of governing bodies, land use commissions, and planning and zoning boards.

Amid the COVID-19 public health emergency, New Jersey-based developers and contractors should keep abreast of recently promulgated land use guidance and legal guidelines that will undeniably affect the industry for the foreseeable future. Below is a summary of several legal advancements in that regard.

New Jersey Department of Community Affairs Issues Guidance for Planning Boards and Zoning Boards of Adjustment During COVID-19 Pandemic

Coupled with the Open Public Meetings Act (“OPMA”), The New Jersey Municipal Land Use Law (“MLUL”) prescribes rules associated with land use hearings. Public involvement is a cornerstone of the New Jersey land use law. However, given the current public health crisis, it is impossible and unsafe for boards to conduct in-person public meetings.

Accordingly, on April 2, 2020, to address this issue, the New Jersey Department of Community Affairs (“DCA”), through the Division of Local Government Services (“DLGS”), issued COVID-19 Operational Guidance (“DLGS Operational Guidance”) for municipal planning boards and zoning boards of adjustment for operating and holding public meetings during throughout the COVID-19 crisis. Specifically, the DLGS guidance permits boards to hold “virtual” public meetings in place of “live” in-person public meetings to ensure that critical land use business can still be conducted amid the COVID-19 crisis. The DLGS Operational Guidance emphasizes that to mitigate the impact of COVID-19, Boards should take advantage of technology, whenever possible.

Likewise, Boards are encouraged to facilitate hearings through emerging technologies such as Zoom, Facebook, YouTube, or comparable visual online platforms, with proceedings taped as in the regular course. With these recommended changes, developers and municipal representatives are starting to realize that the use of technology-enabled platforms may be a useful tool even after in-person meetings can resume. A permanent change may require an amendment to the MLUL.

Zoning Plans and Land Use Applications Amid COVID-19

The DLGS Operational Guidance has been helpful for those applicants seeking to move forward with development applications despite concerns related to the COVID-19 crisis. Nevertheless, all land use applicants are advised to proceed with tremendous caution. In every instance, land use applicants must pay particular attention to providing notice to the public with accurate and functional meeting platform details.

The DLGS Operational Guidance document notes that the statutory timeframes controlling the entire process (i.e., for application submissions, timing, and approvals) are undisturbed. Thus, the local Board must ensure that public hearings take place following the applicable timelines as well as maintain constitutionally mandated due process.

To that end, the DLGS Operational Guidance advises local Boards to consider receiving applications via the Dropbox, local website, or some similar online services that are easily available to the general public at least ten (10) days prior to any hearing it conducts. The guidance also recommends a procedure for those members of the public who lack resources to call the Board Secretary to receive a hard copy of the plans and hearing itself.

Applicants with simple and non-controversial applications (i.e., minor site plans, etc.) may enjoy a small measure of confidence that a land use Board action taken after proper legal notice and in strict adherence with DLGS Operational Guidance and the MLUL could survive an appeal. Applicants who are concerned about the possibility of their project being appealed may consider extending their Time of Decision and resume their applications when land use boards can reconvene in the standard "live" meeting format. Albeit, it is anyone’s guess when that will be.

DCA Issues Guidance Regarding Construction Inspections During COVID-19 Pandemic

The DCA has also issued guidance related to temporary modifications to its rules concerning inspections of construction projects.

The seminal points regarding DCA guidance on Construction Guidance include the following measures. Construction offices are to prioritize inspections necessary for the health and welfare of the public amid the COVID-19 pandemic. Work classified as “Minor Work” (e.g., replacement of water heaters and air conditioners, etc.) under existing DCA Regulations are currently required to obtain a final inspection. The inspection date may be deferred to a later date if contractors report the construction activity provided for in the guidance. Rough inspections for new additions can and should be performed, but no entry to the occupied home or building is required to comply with New Jersey’s social distancing requirements. Lastly, Plan Review for New Construction may be put on hold unless the job is important to combating COVID-19 if a Local Enforcement Agency office is closed.

The key takeaway for contractors and developers is that those that are still building and preforming construction work amid the statewide COVID-19 crisis must document their work as best as possible. To avoid a legal pitfall in the future, job owners and project managers must likewise ensure that their specialists and legal teams are overseeing all aspects of the construction process.

The attorneys at Murphy Schiller & Wilkes LLP are available to discuss any issues you may have in connection with seeking development approvals or permits throughout the COVID-19 health crisis.

ABOUT THE AUTHOR

Roosevelt J. Donat is a member of the Land Use, Zoning & Redevelopment team at Murphy Schiller & Wilkes LLP, a boutique law firm specializing in commercial real estate and development matters. He has extensive experience in the areas of real estate development, government relations, and public policy, in Newark and throughout New Jersey and other jurisdictions. Roosevelt formerly served as the Director of Government Relations and Strategic Planning for Brick City Development Corporation (the predecessor to the Newark Community Economic Development Corporation). In that role, he was responsible for developing the organization’s political engagement strategy with federal, state, and local elected officials, and business engagement strategy with corporations. Roosevelt also advised the organization’s department heads on the impact of proposed legislation and determined an appropriate response to that legislation. He regularly appeared before the Newark City Council and liaised with local and state officials to articulate, promote, and protect the interests of Brick City Development Corporation.

Murphy Schiller & Wilkes LLP (MSW) is a boutique law firm servicing the commercial real estate and construction industries. Headquartered in Newark, New Jersey, the firm services the commercial real estate and construction industries. Through the development of comprehensive legal strategies, our team works tirelessly to create a blueprint for success and advance our clients’ interests in every matter.