New Jersey Land Use Update

Scales and Lamp USSCThere were no reported land use or zoning decisions out of the New Jersey appeals courts this week. One unreported case did hinge on a reading of the Municipal Land Use Law. In the facts leading up to CJS Investments, Inc. v. Mayor and Council of the Twp. of Robbinsville, the Council had failed to either accept or reject an engineer’s official report about the plaintiff developer’s completed roadway improvements within a 45-day period, as required by N.J.S.A. 40:55D-53e(1). An Appellate Division panel affirmed the Law Division’s ruling, which had granted the developer’s requests to be released from its performance guarantees on the work at issue and to have the Township pay its legal fees. Among other things, the panel found that the Council’s inaction did not constitute a rejection of the engineer’s report. As always, the temporary New Jersey Courts link is alive for now, but the original opinion will be archived at the Rutgers Law Library next week.

Matisse at the Met


Acanthus. Henri Matisse (1911-13).

The show is closing soon. If you’re going to be around New York City, you should check it out before it does. If the exhibit has an overarching theme, it’s a comparison between the slight variations in perspective, style, and palette that distinguish Matisse’s studies of particular scenes. For example, two beach scenes painted at Saint-Tropez — one divisionist, one not. Or two landscapes depicting the same spot in Morocco, each shown in different light. If you go, just don’t try to snap any pictures or walk back through the exhibit after reaching the end. The Met’s art police will be sure to lay down the law. . . .

Posted in Art

Tunnel Boring For East Side Access

The Atlantic has some incredible photos of the East Side Access (ESA) project. When you see too many good ideas mired in legalities and politics, it’s easy to forget what humankind is capable of achieving; and then you see images like these, which are really quite inspiring. Because sometimes meaningful things actually do get done. (Just not in New Jersey.)

If the ultimate cost of service can be kept reasonable, then the service upgrades supported by this project will pay dividends through transit-oriented development around Long Island Railroad stations in Queens, Nassau, and Suffolk. There’s also a serious proposal that was discussed last year to add direct Metro-North service via the ESA project to the affordable housing markets of Parkchester and Co-Op City in the Bronx. What’s happening today under the East River will likely support the next generation of neighborhoods in metro New York.

Law School Blues, Cont’d.

John Farmer (former New Jersey A.G., 9/11 Commission, Rutgers Law) has an op-ed in the NYT. He’s pushing for a more formal apprenticeship structure to bridge the gap between study and practice. I like the idea. It would be great to have an option, short of joining a firm, that provided a chance to get some relevant, hands-on experience under the guidance of senior lawyers. Traditional clerkships may serve a part of that purpose for prospective litigators or crim lawyers, but where are the corollary opportunities for new attorneys focused on transactional, counseling, and drafting work?

One incredible stat from Dean Farmer’s piece: 99% of defendants in New Jersey landlord-tenant cases don’t have counsel. That’s amazing.

Posted in Law

New Jersey Land Use Update

There were no reported decisions on land use or zoning in the past two weeks, but there was one reported decision on eminent domain last week: In Borough of Merchantville v. Malik & Son LLC, et al., an Appellate Division panel affirmed a trial court’s holding that a borough was not required to negotiate with a lien holder — even though that party had foreclosed on the property at issue — before proceeding to an action against the owner of record, as described in N.J.S.A. 20:3-6. In an opinion written by Presiding Judge Francine I. Axelrad, the panel followed a rule set down in a 1997 case, City of Atlantic City v. Cynwyd Investments, which had held that the title owner was the proper negotiating partner for a public authority in a condemnation; the panel was unpersuaded by attempts to distinguish the earlier holding (which was based, among other things, on the practicality of not requiring the government to enter negotiations with every potentially interested party) from the case on appeal. On a separate point, the court held that the the owner of record in this case, who had rejected the Borough’s one-time offer, had failed to subsequently provide evidence that would counter the fairness of the Borough’s underlying appraisal. Among other things, the court reiterated a rule that previous purchase offers for much higher amounts (but which never manifest as sales) will not negate the findings of a formal appraisal.

Among unpublished opinions, one recent case addressed an inverse condemnation claim flowing (in part) from the actions of a planning board. In Woodruff v. U. S. Home Corp., et al., an Appellate Division panel affirmed a trial court’s granting of summary judgment to the Township of Upper Deerfield, in Cumberland County, based on the fact that the challenge to the planning board’s approval of a subdivision was time-barred by Rule 4:69-6(a), and did not meet any of the established criteria for extending the 45-day period of time, under Rule 4:69-6(c), “in the interest of justice.” The court also affirmed the trial court’s decision that storm water runoff from the subdivision’s board-approved storm water management system did not constitute a compensable inverse condemnation. Following the federal criteria for takings claims, the A.D. based its affirmation on the lack of any permanent, physical occupation of the property, and the minimal impact of intermittent water in an unused ravine on the claimants’ use of their property. As always, the temporary New Jersey Courts links are alive for now, but the opinions will be archived at the Rutgers Law Library next week.

The Bronx is Next?

South Bronx

All of the solid building stocks in Brooklyn were discovered at least a decade ago — and since then, people have taken to upgrading parcels in the Victorian slums of that borough, like Bushwick. Upper Manhattan is well on its way, too, with new investors moving into the multifamily buildings of Harlem, Washington Heights, and Inwood. (To be fair, Bloomberg does note that some of the recent uptown sales activity flows from multiple sales by institutional investors who are bailing out of big, pre-2008 bets that they had made on those neighborhoods.) Queens is really interesting, culturally, but it has a limited number of existing, traditionally urban neighborhoods. So where’s the love for some of New York City’s best apartment architecture, rarest Victorian mansions, most unusual topographies, and densest transit infrastructure, in the urban core of the Bronx? And does recent activity in the Arthur Avenue section offer a preview of what may be coming? (I really hope not.)

(Here, an Art Deco residential building and a Gothic-style stone church stand beside one another on the edge of a steep hill, where East Tremont Avenue drops to meet Valentine Avenue in the Tremont section of New York City. Note the intricacy of the relationship between the buildings and their respective contexts: The architects of the apartment house clearly designed their building for this parcel, following the curve of East 176th Street for the contour of their façade, and taking advantage of the adjacent church tower’s five-foot setback to create double-exposed corner windows. Meanwhile, the church, though suffering a location without southern exposures, is located on a parcel opposite a park, whose perpetual open space has maximized the amount of sunlight that illuminates the large, stained-glass windows.)

The Bureaucracy of Starting a Business

Matt Yglesias has an article on Slate about all that was involved in becoming a one-unit landlord in Washington, D.C. He’s not kidding. I’ve been doing research since last summer for a consulting firm that helps businesses to locate their licensing and regulatory requirements, and it really is incredible to see the layers of bureaucracy that exist in certain jurisdictions.

Posted in Law

Why Read Unpublished Opinions?

A reader (who isn’t a lawyer) asks: Why read summaries of unpublished court opinions when they don’t represent applicable law? It’s a good question, and I’ll try my best to tackle it. First, the reader is right: Unpublished opinions have no precedential value in the courts. That means that future courts are never required to follow the holdings of these cases. Second, in New Jersey and many other jurisdictions, it would be a violation of court rules for a lawyer to cite an unpublished opinion even for its persuasive value without explicitly noting that the case was unpublished, and providing copies of the cited opinion and all known contrary unpublished opinions to the court and opposing counsel. In short, the courts strongly discourage litigants from explicitly basing their arguments on the reasoning of unpublished cases. So, why look at these cases? The best answer I can provide is that the cumbersome (and often prohibitive) nature of unpublished opinions in the course of litigation does not mean that the reading and awareness of these decisions is without value.

For a number of reasons, the vast majority of trial court opinions and as-of-right appellate opinions are unpublished. (These include the common recurrence of similar issues, a desire by judges to maintain a manageable and consistent set of controlling precedents, and a desire by judges to make decisions on instant cases without being subjected to eternal, hairsplitting scrutiny.) But in spite of the practical bases for excluding most decisions from precedent, such decisions still do show the law in action. They show general arguments that have prevailed in real cases. And particularly in a narrow subject area, unpublished opinions can offer valuable insight into the reasoning of courts and (sometimes) individual judges. In addition, unpublished opinions shed a great deal of light on the real issues and disputes that are arising within the context of a particular specialty (like land use and zoning) at any given time. So, reading unpublished opinions can be a valuable way to keep up with the changing landscape. Finally, a lot of the unpublished cases are just plain interesting. Because they are not written to be precedent, they often do not involve major legal controversies that would require a great deal of context to be understood. Instead, these decisions tend to focus on the application of well-worn rules to a unique set of facts, and provide insight into the politics, strategies, and tactics of the individuals whose experiences come in contact with the legal system. For all of these reasons, I think it’s good for lawyers to keep an eye on the stream of unpublished opinions in their areas of interest.

New Jersey Land Use Update

Scales and Lamp USSCThere were no published opinions on land use or zoning in the New Jersey appeals courts this week. Among unpublished opinions, three touched on land use or zoning matters.

1. In RIYA Cranbury Hotel, LLC v. Z.B.A. of Twp. of Cranbury, et al., an Appellate Division panel affirmed a trial court’s holdings that a banquet facility constituted a restaurant under the town’s zoning ordinance; that an architectural feature did not constitute a sign, under the same ordinance; and that the granting of a D variance permitting a wine shop in a zone whose ordinances did not specifically allow such a use exceeded the limited powers of discretion that zoning boards enjoy to grant use variances.

2. In Kanter v. the Municipal Council of Wallington, et al., a pro se appellant challenged a decision by the local zoning board to grant a variance to a politically-connected company. The board’s decision had subsequently been upheld by the municipal council, and then by the Superior Court, on the challenged points. The case did not raise any substantive issues of New Jersey land use or zoning law, but instead raised procedural points, mainly stemming from alleged technical violations of the Open Public Meetings Act. Here, the Appellate Division panel affirmed the trial court’s disposition of the case, allowing the board’s decision to stand.

3. Finally, in Ginsburg Development Companies., et al. v. Twp. of Harrison, an A.D. panel vacated a trial court’s holding that a developer would not have to pay its share of infrastructure improvements, pursuant to a developer’s agreement, until it commenced building. The A.D. distinguished the facts of this case from those of two precedents on which the lower court had relied. The panel found, inter alia, that because the developer had not disavowed its plans (which would necessitate the improvements), or sought to modify those plans in such a way that its presumptive pro rata share of the resulting costs would change, that the facts of this case were inconsistent with those of the precedents. The judges also noted that a contract had already been awarded for the work of those improvements, and that, in awarding that contract, the township had acted pursuant to its agreement with the developer.

The temporary New Jersey Courts links are alive for now, but the opinions will be archived at the Rutgers Law Library next week.

Grand Central at 100

Leonard Lopate interviewed Sam Roberts, author of Grand Central: How a Train Station Transformed America, for the Terminal‘s 100th anniversary. In addition to the station’s architectural significance, its role as catalyst for the covering over of Park Avenue (between East 45th and 97th Streets) created some of the city’s best residential blocks, and it is no coincidence that the boundary between the Upper East Side and Spanish Harlem has long been 97th Street. The placement of the terminal itself also helped turn Midtown into the commercial center of the city, and in the 1970s the property would play a pretty important role in the development of U.S. historic preservation and land use law.

In some ways, the city changes so often it’s like a kaleidoscope. But that smell of oil and brake dust that permeates the tunnels of the lower concourse, along with the sounds of hissing air brakes and countless ventilation fans, is almost timeless.