You Can Catch More Flies With Honey Than With Vinegar: Alternative Approaches To Resolving Municipal Escrow Account Issues In Land Use Applications

by:  Douglas R. Henshaw

Land use practitioners are familiar with the statutory scheme set forth in N.J.S.A. 40:55D-53.2, which governs the escrow accounts that municipal professionals bill against in connection with their reviews of land use applications.  Unfortunately, with the economic climate being what it is, municipal consultants occasionally submit invoices that are disproportionate to the anticipated time spent by the reviewer performing the function detailed on the invoice.  While the statute provides for a formal appeal process in the face of such charges, this approach is often less productive, and potentially more damaging to applicants than the more subtle, informal approach.

 


Under the relevant statutory scheme, an applicant is permitted to challenge a municipal reviewer’s charges through an appeal to the Construction Board of Appeals.  However, this approach is not particularly cost effective and most assuredly will result in bad karma (or worse) when the professional staff and members of the municipality and land use board reviewing the application learn about the appeal.  This is particularly so as the appeal must be filed within 45 days of receipt of the reviewer’s voucher.  Complex land use matters, for which billing issues are likely to arise, will certainly last longer than the issuance of the escrow invoices, thus raising concerns that the appeal could impact the vote of the Board and the rendering of final reports by municipal professionals.

Under these circumstances, two possibilities exist to curtail overzealous billing while hopefully maintaining a working relationship with the municipality and its professionals:

First, if you know any of the members of the senior management of the entity performing the review, you should call that individual and engage in a gentle discussion about your concerns, such that your contact at the reviewing entity will review the issues and make internal suggestions to the reviewing personnel.

Second, you could contact an elected or appointed official of the municipality (e.g., the business administrator) or a member of the governing body and express (once again gently) your concerns, while indicating that you wish to maintain a good working relationship with those involved in reviewing your client’s applications.

 While there is no way to guaranty that either of these approaches will work in every situation, it has been my experience that most consulting firms and municipalities appreciate these techniques more than filing an appeal, which results in additional legal fees for both your client and the municipality.

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