New Jersey homebuilders are applauding a unanimous June
decision by the state Supreme Court that stops towns from
requiring builders and developers to set aside land for open
space (or pay a cash fee) as a permitting condition for housing
developments. In the cases of New Jersey Shore Builders
Association v. Township of Jackson and Builders League of South
Jersey v. Egg Harbor Township, the court held that New Jersey
towns have been exceeding the authority given to them under the
state's Municipal Land Use Law (MLUL).
Upholding an appellate court's previous decision in the
matter, the Supreme Court said, "The Legislature, although
recognizing the benefits to be derived from open space, and
although including its preservation among the enumerated
purposes of the MLUL, limited the manner in which
municipalities may demand that it be made available." While
towns can require open space in certain developments, called
Planned Unit Developments (PUD), they can't do the same thing
for just any proposed development. And even in the case of a
PUD, the appeals court remarked, the towns' power under the law
is limited: They can't, for example, require a cash payment "in
lieu of" the land set-aside, as towns have been doing. "Such an
alternative would not advance the goal of ensuring that
adequate open space be provided within the PUD and because the
statutory authority that permits a municipality to require
contributions for off-tract improvements is itself limited,"
said the court. "We therefore note that, although not precisely
the focus of this appeal, the suggestion that the MLUL would
permit a payment in lieu designed to fund off-tract open space,
as an alternative to the set-aside within a PUD, does not
square with the MLUL." The
full text of the court's opinion is posted on the website
of the Rutgers University law library.
In an Asbury Park Press story
Builders don't have to set aside open space," by Keith
Ruscitti), an attorney for the builders' groups was
particularly critical of the cash option towns have pushed:
"'The towns can talk about open space or recreational
facilities, but what they really wanted were the fees,' said
Paul H. Schneider, the attorney who represented the New Jersey
Shore Builders Association. 'This was a type of extortion, to
squeeze more money out of the developers.'"
For New Jersey builders, however, this issue may not go
away. The court's decision rested on the phrasing of current
legislation, not on any sort of constitutional issue.
Accordingly, hinted Bill Dressel, executive director of the New
Jersey League of Municipalities, towns may still press
lawmakers to grant the authority that the court has ruled they
lack under current law: "The Court has made it clear that a
legislative solution will be necessary."