By Joshua Burd
In New Jersey, the concept of home rule is every bit as certain as death and taxes.
That reality served as a starting point for one of the other key areas tackled by the Smart Growth Economic Development Coalition: improving the state’s Municipal Land Use Law. The group insists it’s not trying to replace the law or strip local governments of the ability to control zoning in their town, but make what they feel are reasonable, practical changes to help streamline development, create more certainty and encourage new business growth in the state.
Those changes include steps such as standardizing non-residential site improvement requirements, creating more consistency across the entitlement process and softening the approval process for projects that will help create affordable housing.
“It’s a given,” said Meryl Gonchar, co-chair of the Sills Cummis & Gross P.C. land use practice, referring to the concept of home rule. “So what we need to do is find those areas where we can make changes in the procedures and in some of the substantive provisions where we can create some uniformity — and the uniformity creates some predictability — because that is where we fall down when we compete with other areas.”
Non-residential site improvements
As a starting point, the coalition’s land use working group is calling for creating a uniform set of regulations to guide how non-residential improvements are applied to the design of new projects. The standards would be geared mostly toward office and retail properties, Gonchar said, setting guidelines for details such as parking requirements and storm water standards.
Gonchar, who chaired the working group, noted that planners and land use attorneys already rely on national standards for details such as parking. She also pointed to the success of nearly 20-year-old legislation that created standards for residential site improvements, which resulted from broad stakeholder input and created a model ordinance for municipalities.
“Now that we’ve lived through almost 20 years of using the residential site improvement standards, which were viewed as an attack on home rule, we know it works and that the world is continuing to spin,” Gonchar said. “And we’d like to implement the same type of guidance in terms of commercial development.”
The group’s proposal calls for creating a study commission of development experts, private and municipal engineers and others to craft an amendment to the land use law, or the MLUL.
Consistency in entitlement process
When it comes to consistency in entitlement procedures, the coalition has set its sights on the checklists that each municipality must require for a development application, but can vary wildly from town to town. Gonchar said the application in one municipality can be a single sheet with a dozen items, while “in other towns, for a single application, you can be handed a 25-page list of requirements that … tells you every detail that has to be on every sheet of your site plan or subdivision drawing.”
“So what you need just to get started in one town is very different from what you need to get started in another town,” she said. “And that makes it impossible to predict how long it’s going to take you to get through the process from town to town.”
Gonchar said the recommendation does not propose to limit what a municipality can ask for, but is asking for uniformity at the earliest stage of the application process. And she pointed to another success from past legislation, a 1999 amendment to the MLUL that set standards in the performance bonds and letters of credits that developers submit.
Similarly, the coalition is seeking uniformity when it comes to procedures for seeking zoning amendments — a step that is becoming increasingly common as towns adapt to changing consumer patterns and demographics — along with post-approval issues such as seeking field changes. It’s also calling for standardized application fees and processing costs, which it calls “perhaps the greatest disparity between municipalities” and argues that the variation is not even tied to the size or complexity of a project.
Carol Ann Short, CEO of the New Jersey Builders Association, said residential and mixed-use developers see that disparity as “the most critical issue facing them” as they push for legislative remedies.
“They believe that that is the biggest impediment to their ability to move development projects forward,” Short said. “There is no predictability, there’s no certainty.”
Approvals for inclusionary projects
It has been more than two years since the state judiciary assumed control of determining how much affordable housing should be built in New Jersey. And while the obligations of hundreds of towns have yet to be decided, some local governments have begun the process of engaging developers to help them meet those requirements.
In those instances, the coalition is hoping to make a case for easing the burden and entitlement costs of new development projects that include affordable units.
Gonchar said affordable housing often requires some level of subsidy in order to be financially viable in the first place. But she argued that local governments can help make the numbers work by eliminating procedures and fees that generate additional costs.
She also noted that the earliest guidelines under the landmark Fair Housing Act recommended against “cost-generative procedures and requirements,” although they were not statutory requirements.
It’s why the land use group is calling for those steps to be implemented through the MLUL, rather than relying on the good faith of municipalities. She outlined other steps to help ease that burden, such as statutorily requiring reduced utility fees and limiting the number of offsite improvements that can be charged to a developer in an inclusionary project.
It remains to be seen as to whether the coalition is successful in achieving any of its proposals. But Michael McGuinness, CEO of NAIOP’s New Jersey chapter, said the industry has found success in the past by seeking statewide solutions to issues with local governments.
Yet he also knows that the sheer number of municipalities makes any such effort extremely difficult.
“This is where the biggest battles are,” McGuinness said. “That’s where they start and where they end.”
Ciro Scalera, government affairs director for the Laborers’ International Union of North America, said “we are going to have to slug this out, somewhat bill by bill.” But he believes many state lawmakers are sympathetic to reforms that strive for achieving commons sense.
“Legislators are generally appalled when they are confronted and hear about these disparities and how this is holding up progress, whether somebody is pro-job creation or pro-economic development or anything else,” Scalera said. “In a perfect world, we could put all the right people in a room, take all of these issues and just deal with it in terms of municipal improvements or moving the needle on a lot of these areas at a municipal level.”