EMBEDDING SUSTAINABLE DEVELOPMENT AND LAND USE INTO PUBLIC POLICY By Thomas F. Collins, Jr., Esq., P.P. Vogel, Chait, Collins & Schneider 25 Lindsley Drive, Suite 200 Morristown, NJ Reducing Litigation and Maximizing Likelihood of Success

Sustainability is Smart Planning. It does not mean perfection or utopia. - Better planning for economic changes and realities is always better. - Incorporate sustainability standards, goals and incentives into municipal Master Plan and Zoning and Land Use Ordinances. 2

- Follow MLUL N.J.S.A. 40:55D-28 for Adoption of Master Plan and Amendments to Master Plan and Reexamination Reports pursuant to MLUL §89. - After Master Plan Adoption or Amendment Planning Board Incorporate sustainability into Land Use Ordinances pursuant to N.J.S.A. 40:55D-62. 3

4 - Redevelopment is always more risky for litigation particularly if eminent domain option is included in the Governing Body’s request for a preliminary investigation of an area in need of redevelopment pursuant to the Local Redevelopment and Housing Law (LRHL) N.J.S.A. 40A:12A-1. See Sections 40A:12A-6 and 5, 8 and 15.

5 MLUL is less risky. Enabling is very broad : N.J.S.A. 40:55D- 62 allows “Ordinances relating to the nature and extent of uses of land and buildings and structures…” - 65a “regulate buildings and structures…and use” - 65b “bulk, height, number of stores, orientation and size of buildings,… lot sizes,… lot size averaging and cluster development… floor area ratios and other ratios and regulatory techniques governing the intensity of land use and provisions of adequate light and air including the potential for utilization of renewable energy sources” - 65b allows “non contiguous clustering” - 65e “regulate areas subject to flooding” encourage flood protective design, e.g. commercial and parking on 1 st floors Planned Developments and Clustering § 65b & c, 45 & 39b Off Tract Improvements §42 Official Map §32 Reservation of Public Areas §44

LEED’s approvals are a great protocol but too costly – consider the LEED’s design points as goals. Use the principles for LEED’s in zoning/ land use and redevelopment/rehabilitation plans and ordinances. 6

Some of the many options: Energy conservation/green roofs and spaces. Consider incentive zoning to encourage efficiency Water conservation. Utility and sewer on site and off tract improvements. Use of form based codes and other ordinances to imbed sustainability standards. On site and off tract clustered open space. Use incentive zoning and affordable housing density bonuses with mandatory set asides. 7

Minimize litigation as follows: Use outreach and transparent open meetings. Follow your planner and attorney’s advice. Use more public meetings if needed. Develop, address and design Master Plan Amendments at public meetings of the Planning Board N.J.S.A. 40:55D-28 and Redevelopment Plan. Follow the Planning Board’s Master Plan Amendment and Reexamination Report in Governing Body’s ordinance amendments under N.J.S.A. 40:55D-62. 8

NJ Supreme Court has reaffirmed consistently and recently the extensive municipal authority and discretion by proper zoning amendments. Greipenberg v. Township of Ocean and NJDEP and NJDCA decided Jan. 22, 2015 confirmed the well established 4 part test of ordinances under Riggs v. Long Beach Tp. 109 NJ 601 at 611 (1988). First – ordinance must advance one of purpose of MLUL N.J.S.A. 40:55D-2. Second – ordinance must be consistent with land use plan and housing plan of the Planning Board’s Master Plan. Third – ordinance must comply with constitutional constraints Fourth – ordinance must be adopted in accordance with statutory and municipal procedural requirements. 9