Is Your Driveway A Principal Use?

by:  Greg Ricciardi

According to the  New Jersey Supreme Court, in certain circumstances the answer is yes.  On June 16, 2011, the Court held that a driveway is a principal use where, pursuant to local zoning, the driveway does not meet the definition of an accessory use.  Moreover, depending on the circumstances, you may need difficult to obtain and costly variances to get your driveway approved.  How could this happen?

The answer lies in the curious case of Nuckey v. Borough of Little Ferry Planning Bd.  These are the facts. A developer owns multiple lots and wants to build a hotel.  One of the lots has no highway access. To remedy this issue, the developer proposes to build a driveway on an adjacent lot that would continue across the corner of another lot owned by the same principals as the developer.  This proposed driveway would provide the needed highway access for the hotel.  Sounds like a simple accessory use right? Herein lies the rub. 


Continue reading “Is Your Driveway A Principal Use?”

Coming Up Short: State Funds Insufficient to Build Projected Affordable Housing

by:  Katharine A. Muscalino

Affordable housing in New Jersey has suffered its latest setback,  as the New Jersey Department of Community Affairs has indicated that it will fall 8,000 units short in construction of affordable units funded by the Special Needs Housing Trust Fund.  Despite its expenditure of $168 million, only 2,000 units for disabled and homeless people have been constructed.  In response to inquiries from Senator Codey, the New Jersey Commissioner of Community Affairs Lori Grifa explained that “the reality is that $200 million does not produce 10,000 units, unless they can be produced for $20,000 per unit, which is an impossibility in New Jersey”  according to the Star Ledger’s article, "N.J. Sen. Codey Calls On State To Explain How It Spent $168M From Special Needs Housing Fund."  This may mean that the state and the New Jersey Supreme Court will look to developers more than ever to finance and construct affordable housing to assist municipalities in satisfying their fair share obligations.  It may also mean that municipal Third Round Housing Element and Fair Share plans, now stayed pending the New Jersey Supreme Court’s consideration of the Third Round Rules, will come under additional challenge to extent that those plans relied on public or municipal funding.

No Repose for the Weary: Developers Must Deal With Untimely Appeals of Site Plan Approval

by:    Katherine A. Muscalino

A recent decision from the New Jersey Supreme Court gives developers something new to worry about — appeal of their land use approvals even after the expiration of the 45 day prerogative writ window.  The decision, which appears to deny developers the very repose that this limitation was intended to provide, means that developers remain exposed to lawsuits even after the statutory period lapses.

In Hopewell Valley Citizens’ Group Inc. v. Berwind Property Group Development Co., an applicant obtained preliminary site plan approval for a General Development Plan on May 29, 2008, over the objections of members of the public.  The approval was memorialized on September 25, 2008 and the defendant published notice of the resolution’s approval on September 27, 2008.  On October 1, 2008, the defendant informed the municipality’s Board Secretary/Administrative Officer of its publication of the approval.

Despite this notice, the Board Secretary/Administrative Officer published additional notice of the resolution on October 2, 2008.  Thereafter, an objector contacted the Board Secretary/Administrative Officer and inquired as to the date of the approval’s publication.  The Board Secretary/Administrative Officer replied that the approval had been published October 2.  The objector then used the October 2 date to calculate the 45 day period in which a prerogative writ action could be filed, and filed suit on November 17, 2008.  The suit was thus filed six days after the 45 day period expired from the original publication of the approval, but within 45 days of the second publication.


Continue reading “No Repose for the Weary: Developers Must Deal With Untimely Appeals of Site Plan Approval”