April 28, 2020

MSW Q&A Series – Part 3: Land Use and COVID-19: Securing Approvals in a Global Pandemic

In Part 3 of this 4-part series, Chris J. Murphy, Esq. and Roosevelt J. Donat, Esq. answer questions related to navigating New Jersey’s land use process during the COVID-19 crisis. As part of the Land Use, Zoning and Redevelopment practice group at Murphy Schiller & Wilkes LLP (MSW), Chris and Roosevelt represent a wide-range of clients in connection with securing land use and other development approvals throughout New Jersey.

Q1: What effect has the COVID-19 crisis had on the land use entitlement process in New Jersey?  

CM: Over the last seven weeks, the land use entitlement process in New Jersey has rapidly transformed. At first, municipalities almost universally stopped cold, and cancelled scheduled planning and zoning board meetings indefinitely. At that time, there was no telling when and how municipalities would handle pending applications going forward. As is generally the case in New Jersey, there tends to be a lack of uniformity, with 565 municipalities developing independent processes. In these uncertain times, we found that our relationships with planning departments and staff members throughout the State proved critical in obtaining real-time information and guidance on how municipalities planned to adapt to COVID-19 related interruptions moving forward. Based on guidance from the Department of Community Affairs (DCA), released in April 2020, a significant number of municipalities have started transitioning to virtual meetings, via web-based platforms such as Zoom and Webex. While time will tell whether virtual meetings are an acceptable alternative to in-person meetings, there is a scene that everyone involved is interested in making the process work.

Q2: How have municipalities adapted to the social distances guidelines being followed in New Jersey and what challenges do you foresee in light of recent developments?  

RD: As Chris stated in his last response, based on guidance issued by the DCA earlier this month, a significant number of municipalities have transitioned to virtual meetings on web-based platforms in lieu of in-person meetings. This will allow the public to participate in accordance with the State’s Open Public Meetings Act. Not surprisingly, some municipalities have moved quicker towards implementing the DCA’s guidance. While we are pleased to see municipalities moving quickly to adapt to COVID-19 related interruptions, it is essential that applicant and board attorneys are diligent in ensuring that hearings adhere to the guidance provided by the DCA, including allowing the public access to all application materials and plans prior to the meeting date. Public notices should also be drafted to include information for public participation via the web-based platform or telephone. Boards must also facilitate public comment on applications, as well as the public’s right to cross-examine witnesses. We believe that this process will continue to transmute over the coming months. Because this scenario is new to everyone, and there are still many unknowns, for applications that are highly contested, it may be recommended that an applicant’s attorney delay a land use hearing until in-person meetings resume, or the virtual meeting process is perfected and codified.

Q3: What advice would you give to developers trying to secure approvals during these uncertain times?  

RD: Whether a developer is trying to secure approvals during these uncertain times or in normal times, it is our position that there needs to be an open and communicative process with the municipal planning department and staff. If an application was previously scheduled and cancelled due to the current crisis, and the particular municipality is moving forward with virtual hearings, it is recommended that the developer meet with their attorney to discuss the best strategy moving forward. As I stated earlier, if the application is highly contested, or there is a belief that an approval could be appealed, it is advisable that the land use hearing be delayed until in-person meetings resume. If not, and the developer wishes to process with a virtual hearing, as is the case with multiple clients at MSW, we have been focused on preparing the entire project team for the virtual meeting format. The MSW land use team has presented several applications during the crisis. There are significant differences between a virtual meeting and an in-person meeting, and some people are more technologically savvy than others. It is important that clients understand the need to still present a succinct and powerful presentation, no matter what the platform.

CM: For developers who have not yet submitted development applications, but are still working on concept plans, this is a great time to line up your project team and prepare to submit a complete application as soon as the municipality’s planning department begins to accept new development applications (while some municipalities are accepting applications via FedEx or UPS, a large number are not receiving new applications at this time). As is our general practice, we like to introduce projects to planning departments and staff well before an actual application is submitted. This may be a perfect opportunity to submit a brief overview of the project, along with concept plans, to a municipal planning director, asking for feedback on the proposed project. There is still a significant amount of work that can be done during this crisis. Eventually, municipalities will reopen. At that time, there will likely be a large backlog of applications and a significant amount of new applications coming in. Spending some extra time putting together a better and more thorough application could never hurt your chances of securing an approval.

Q4: How can the attorneys at MSW assist developers seeking to navigate this new terrain?  

CM: MSW is a full-service real estate law firm, representing clients throughout the lifecycle of a development project. From handling the initial transaction to securing entitlements (and everything in between), our firm has a deep bench of highly-skilled lawyers. We pride ourselves on being a modern firm, using technology to be more efficient. In this new world -- one in which municipalities are moving to technology-enabled planning and zoning board hearings, we believe that we are well equipped to quickly transition, remaining as effective in helping clients secure approvals. As we continue to monitor the changing landscape, we will do our best to keep everyone up to date.

For more information, please feel free to contact:

Chris J. Murphy, Esq.
(973) 705-7421
cmurphy@murphyllp.com

Roosevelt J. Donat, Esq.
(973) 705-7414
rdonat@murphyllp.com

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.