Blog Archive

Appellate Division Decides Affordable Housing “Gap Year” QuestionJuly 18, 2016

The Appellate Division of the Superior Court has ruled that "gap year" need cannot be calculated in the way that has been presented to the courts thus far. The gap years are the years 1999-2015, i.e., the years in which the Council on Affordable Housing (COAH) was non-functional. In March 2015 the New Jersey Supreme Court returned exclusionary zoning matters to the trial courts and directed them to establish the fair share numbers that COAH had failed to lawfully calculate for years. One fair share methodology proposed to the trial courts was a methodology prepared by David N. Kinsey, Ph.D, in conjunction with the Fair Share Housing Center. That methodology proposed to calculate the gap year need numbers as "prospective need," as COAH had done in the past. Most municipalities retained the firm of Econsult Solutions to calculate fair share numbers. Econsult proposed that the gap year need should not be considered. Judges hearing the exclusionary zoning disputes in Ocean County ruled that the Kinsey approach was correct and Ocean County municipalities appealed this decision to the Appellate Division.

In reversing the Ocean County trial court decision, the Appellate Division ruled that gap year need cannot be included within the prospective need portion of fair share obligations. The Appellate Division determined that prospective need can only include need based on projections, and cannot be retrospective.

Parties such as Fair Share Housing Center may request that the New Jersey Supreme Court hear an appeal of the Appellate Division decision, and reverse that court's rulings. The Appellate Division’s ruling was unanimous, however, meaning the state Supreme Court would have to decide whether to accept an appeal.

Despite the Appellate Division's gap year opinion, municipalities remain obligated to satisfy their "prior round" obligations (those fair share obligations COAH calculated for the 1987-1999 time period), their present need obligations, and prospective need obligations (the projected need for affordable housing arising over the next 10 years). The numbers must take into account current needs, which could be influenced by the slowdown of affordable housing development since 2000; a projection of the need for additional housing over the next decade; and any still-unmet needs assigned by COAH before 1999.

Affordable housing advocates assert that the present need component should now be recalculated to include some or all of the gap year need arguing that the gap year need should not be ignored simply because COAH did not do its job for 16 years.

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New York Local Zoning Law on Fracking Bans Are Not PreemptedJuly 1, 2014

The New York State Court of Appeals decision in Wallach v. Dryden (N.Y., No. 131, 6/30/14) will significantly curtail natural gas fracking operations in the New York State portion of the Marcellus Shale.  The ruling by a large majority of the Court affirmed that local zoning law banning fracking are not preempted by the New York State Oil, Gas and Solution Mining Law.  Each town or city can now ban natural gas drilling by fracking through the use of zoning laws as an estimated 170 towns have done already.

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Brach Eichler Launches New Subsidiary, Brach Eichler Government Affairs LLCNovember 5, 2013

Rocco Iossa has joined the Firm and has helped launch the Firm's new government affairs and lobbying firm Brach Eichler Government Affairs LLC.

The subsidiary will be located in Trenton, NJ and Rocco will be the Managing Member.  Rocco is the former founding member of State Street Partners, a well known and reputable full service government affairs lobbying firm.  Brach Eichler Government Affairs will serve clients across a broad base of business and industry, with particular focus in the healthcare, environmental, transportation, real estate and pharmaceutical industries.  Rocco brings to the Firm more than 25 years' experience in government affairs and law as well as valuable expertise and relationships.  He served as senior assistant counsel in the Office of the Governor for the State of New Jersey where he represented Governor Christie Todd Whitman on all legislative matters pending before the New Jersey Senate.  In 1995, he was named appointments counsel to the Governor, where he directed all gubernational appointments in the State of New Jersey.

Also a part of Brach Eichler Government Affairs LLC is Alan Steinberg.  Alan has been one of the leading governmental officials in the environmental arena in the Northeastern United States over the past two decades.  As Executive Director of the New Jersey Meadowlands Commission under New Jersey Governor Christie Whitman, Steinberg was in charge of the zoning, planning, solid waste management, and environmental regulation of the New Jersey Meadowlands, one of America's most sensitive environmental areas.  As Region 2 Regional Administrator of the U.S. Environmental Protection Agency under President George W. Bush, Steinberg was the top Federal environmental official of a region that included all of New York State, New Jersey, Puerto Rico, the U.S. Virgin Islands, and eight federally recognized Indian nations.  In both these positions, Steinberg developed a thorough knowledge of environmental regulation of air, land, and water, the Superfund program, and extensive contacts with the career environmental officials in the jurisdictions he supervised.

For more information visit

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Clustering - An Important Land Use Planning Tool - Gets a LiftAugust 16, 2013

On August 7th Governor Christie signed A3761/S2608, known as the Cluster Development Act, to amend the Municipal Land Use Law (MLUL) to allow municipalities to use clustering and lot size averaging more broadly to direct growth and preserve land. The Act expands upon the existing MLUL provisions that authorize cluster development and clarifies a provision of law that authorizes a related planning tool, lot-size averaging. Municipalities are authorized to pass clustering zoning ordinances, however, the landowner will have the option of deciding whether to cluster.

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