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Municipal Declaratory Judgment Actions Present an Excellent Opportunity for Re-Zoning, but Fast Action is Required

NAIOP NJ - The WeekEnder Brief

Kevin J. Moore

June 19, 2015
If you own a vacant or under-tenanted office or industrial building, or vacant land zoned for office, industrial or large-lot residential use, the New Jersey Supreme Court's March 10, 2015 decision in In the Matter of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015) provides you with an excellent opportunity to obtain high-density residential or mixed-use zoning for your property. However, you must act now. The Supreme Court's decision gives municipalities until July 8 of this year to file declaratory judgment actions, on notice and opportunity to be heard to "interested parties," seeking immunity from affordable housing lawsuits and judicial approval of their housing elements, fair share plans and implementing ordinances.  At least seven municipalities have already filed such actions.         

What you need to do: First, you must write a letter to the municipality in which you property is located, setting forth the location, size and current zoning of your property and stating that you wish to develop it as an inclusionary residential or residential mixed use development, with a twenty percent affordable housing unit set aside.  If you property has sewer, water and good access to major roads, these are positive factors which you should include in the letter.  If you have a concept plan for your proposed inclusionary development, you should describe it in the letter and enclose it with the letter.  You should also request an opportunity to meet with the municipality.  Finally and most importantly, your letter should state that in accordance with the New Jersey Supreme Court's opinion in In the Matter of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015), the municipality should consider you to be an interested party in any declaratory judgment action that the municipality may file in accordance with that opinion, with notice of any such proceedings and papers filed in connection therewith being provided to you.  

Second, you must write a letter to the designated Mount Laurel Judge in the judicial vicinage in which your property is located, stating that you own property in the particular municipality and should be considered an interested party in any declaratory judgment action which that municipality files with the court pursuant to In the Matter of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015).  In those cases where a municipality has already filed a declaratory judgment action, the letters should refer to the action, and you may have to file a motion to become an interested party.  You should determine this from the particular judge.

Once you are a party to the municipality's declaratory judgment action, you should advocate for two things: one, a high affordable housing unit obligation for the municipality; and two, the inclusion of a high-density residential or residential mixed-use inclusionary development of your property in the municipality's housing element, fair share plan and implementing ordinances. When and if the court approves the municipality's housing element, fair share plan and implementing ordinances with your property included, you will have achieved a re-zoning that you could not otherwise have achieved.  Learn more about this issue and get your questions answered at NAIOP NJ’s June 24 Regulatory, Legislative & Legal Update Seminar.