Permit Extension Act of 2020- An Important Response.
Edward W. Purcell, Esq.
Last Wednesday Governor Murphy signed into law the Permit Extension Act of 2020, P.L. 2020, c.53 (“Chapter 53”). The Legislature adopted this legislation in response to the present COVID-19 crisis. The law was previously conditionally vetoed by Governor Murphy. Chapter 53 benefits businesses and developers who will automatically receive extensions for various governmental approvals during the pendency of the COVID-19 crisis. The law also provides a relaxation for municipal action related to various deadlines under the Municipal Land Use Law (“MLUL”). However, and as will be discussed below, there is language in Chapter 53 that appears to detract from that goal.
Chapter 53 tolls state and local permit approvals in existence at the beginning of the COVID-19 extension period or issued during said period. The “COVID-19 extension period” is defined as the period beginning on March 9, 2020 and “continuing for as long as a public health emergency, pursuant to the Public Health Powers Act…has been declared by the Governor in response to COVID-19.” This language reflects a change requested by the Governor. The Legislature’s initial version would have also included the “state of emergency” declared by the Governor in response to COVID-19—a time period in the Governor’s estimation that would have extended well beyond the “public health emergency.” The Governor, concerned with negative environmental outcomes associated with a lengthy extension period, requested that the extension period be limited to the period of the “public health emergency.”
Pursuant to Chapter 53, approvals in existence on March 9, 2020, will be tolled during the COVID-19 extension period. The law also provides that such approvals “shall extend the government approval at least six months beyond the conclusion of the COVID-19 extension period.” As initially drafted, prior to the Governor’s conditional veto, the legislation clearly tacked on another 6 months to all such permits after the COVID-19 extension period had run. The Governor’s conditional veto added the language “at least” and throws into confusion what this provision means. Arguably, this language could mean that all approvals in existence on March 9, 2020 will continue for 6 months after the end of the COVID-19 extension period unless they had more than 6 months left to run at the beginning of the extension period. In those instances, those permits will run for whatever remaining time period is left beyond 6 months.
Like the 2008 Permit Extension Act, Chapter 53 requires that state agencies place notice in the New Jersey Register tolling approvals. Unlike the prior law, Chapter 53 requires that that “governmental approvals” subject to tolling during the Covid-19 extension period be “registered with the department within 30 day of the notice in the New Jersey Register.” This language is unclear. It is assumed to only apply to State agency approvals because local governments, pursuant to Chapter 53, are not required to provide notice of tolling in the New Jersey Register. Chapter 53 further requires that State agencies maintain online listings of extended permits. The purpose of this provision is to provide transparency to the public. Given the unclear language, it will be important to see the scope of the notices placed into the New Jersey Register to ensure that the State is not interpreting this provision to include a requirement to register local approvals.
Chapter 53 also includes language which relaxes the deadlines for certain municipal action under the MLUL. Normally, the MLUL requires that a municipality deem a pending land use application complete within forty-five (45) days of filing. N.J.S.A. 40:55D-10.3. For development applications submitted before March 9, 2020, or during the COVID-19 extension period, Chapter 53 provides that a completeness determination must be made by the latter of “120 days after March 9, 2020 [July 7, 2020] or 60 days after the date the application for development is submitted to the municipal[ity].” Similarly, for any development application awaiting a completeness determination on March 9, 2020, or pending before a municipal agency as of March 9, 2020, the time period to act on said application is extended by 120 days. Finally, for applications submitted and deemed complete during the COVID-19 extension period, Chapter 53 provides that a municipal agency must act on said application within 120 days after March 9, 2020, i.e. July 7, 2020, or 60 days after the application is deemed complete, whichever is later.
There are some problems with the time relaxation language. For instance, the language would appear to, in fact, force some municipal decision making to be sped up where the MLUL actually provides for a greater period of time to act. For example, the MLUL provides that a Planning Board has 95 days to act on an application for subdivision of more than 10 lots. N.J.S.A. 40:55D-48. Likewise, a Zoning Board of Adjustment has 120 days to act on a complete variance application. N.J.S.A. 40:55D-73(b). Chapter 53 provides that, for applications deemed complete during the COVID-19 extension period, the time period for the municipal agency to act is either 120 days after March 9, 2020, i.e. July 7, 2020 or 60 days after the application is deemed complete. This time is not added onto other statutory time period—rather it simply cuts across all various types of relief. The 60-day period envisioned by Chapter 53 is longer than the 45 days, for example, that a Planning Board has to approve a complete site plan application involving less than ten acres and ten or fewer dwelling units (N.J.S.A. 40:55D-46), but it is less than the 120 days that a Zoning Board of Adjustment would have to act on a complete variance application or the 95 days that Planning Board would have to act on a complete application for a subdivision of more than 10 lots. Thus, to a certain extent, Chapter 53’s language seems to undermine its goals—to relax municipal agency deadlines in the face of the COVID-19 crisis.
The Permit Extension Act of 2020 represents a positive policy development for New Jersey businesses and developers. The law grants automatic extensions to various approvals without requiring the expense of formal applications to various state and local agencies. The relaxation of MLUL deadlines is likewise an understandable policy change in light of the COVID-19 crisis. However, as discussed above, there may be some unintended consequences in the language used by the Legislature in crafting Chapter 53.
