USA - NEW JERSEY Law and Practice Contributed by: Steven Fleissig, David Freylikhman, Cory Mitchell Gray and David Jensen, Greenberg Traurig LLP
4.6 Agreements With Local or Governmental Authorities
public, and anyone purporting to be affected by the proposed development, may appear and object at the hearing. Objectors also have the right to present evidence and expert testimony. The variance process may take as little as three to six months for a simple application or as long as 12 to 15 months for major variance applica - tions. Applications involving multiple agencies, par - ticularly those located in sensitive ecological An applicant or other person aggrieved by a municipal zoning decision has the right to file an appeal within 45 days of publication of the decision of the municipality in a newspaper of record. The Superior Court will then schedule a trial and a single judge will determine wheth - er, on the record created before the municipal agency, the zoning decision should be affirmed or reversed. Municipal zoning decisions are given great weight and are upheld unless they are determined to be “arbitrary, capricious or unreasonable”. In the case of a denial of a variance or applica - tion for development, the municipality obviously would not issue any permits pending the appeal; in the case of a grant of an application for a vari - ance or development, a municipality may issue such permits pending appeal, typically upon the posting of a bond by the applicant to ensure that in the event the appeal results in a reversal of the grant of the variance or zoning application, the site can be restored. Many municipalities will not issue such permits during an appeal by objectors. areas, may take up to several years. 4.5 Right of Appeal Against an Authority’s Decision
Agreements between developers and munici - palities are properly available only in limited cir - cumstances. In the ordinary course, a developer would have to proceed through a request for rezoning or an application for site plan approval (with or without variances) to obtain municipal approvals. However, it is not uncommon for such approvals to be “conditioned”, with the develop - er’s agreement, upon the developer addressing appropriate land use issues caused or exacer - bated by the proposed development (for exam - ple, traffic flow, public safety). Further, in the case of applications not requiring a use variance, it is typical for the municipal - ity’s professionals to meet with the developer’s professionals to attempt to reach agreement as to any of the issues presented on the applica - tion. In certain other contexts, primarily with respect to blighted or distressed areas, Rede - velopment Agreements and PILOT (Payments In Lieu of Taxes) Agreements are commonly used in New Jersey, but their use is not applicable to all properties. For a Redevelopment Agreement, the municipality must first designate the prop - erty at issue as an area in need of redevelopment (pursuant to state statutory criteria). A Redevelopment Agreement can be negoti - ated, executed, and approved by the munici - pality’s governing body (though it is common for such details to be agreed upon prior to the designation of a site for redevelopment). PILOT programmes similarly incentivise developers to restore distressed or blighted areas and PILOT agreements are often executed in conjunction with a Redevelopment Agreement.
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