On July 1, 2020, Governor Murphy signed the Permit Extension Act of 2020, P.L. 2020, c.53 ("Chapter 53") into law. The legislature crafted Chapter 53 as a policy response to the economic malaise caused by the COVID-19 crisis. By way of background, Governor Murphy conditionally vetoed a previous iteration of the law in June. Chapter 53 benefits businesses and developers by automatically extending various governmental approvals during the pendency of the 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 detracts 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. Under the legislature's initial version of the law, the extension period would have also included the "state of emergency" declared by the governor in response to COVID-19—a time period which 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 by way of conditional veto that the extension period be limited to the period of the "public health emergency" only.

The basic framework of Chapter 53 is similar to the 2008 Permit Extension Act but with some notable differences. 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 six 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 six months after the end of the COVID-19 extension period, unless they had more than six 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 six 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 the "governmental approvals" subject to tolling during the COVID-19 extension period be "registered with the department within 30 days of the notice in the [Register]." The scope of approvals subject to this language is unclear. The registration requirement can be 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.

While it is extremely unlikely that the state could interpret this language to require registration of local approvals, the scope of state agency notices should be reviewed and monitored. In any event, the fact that a client's state approval will not gain the benefit of Chapter 53 if same is not registered should cause some anxiety to attorneys and developers alike. While the state agencies have not published notices yet regarding permit registration, it is recommended that attorneys and developers begin reviewing their files for state permits subject to Chapter 53.

Chapter 53 also includes language which relaxes the deadlines for certain municipal actions under the MLUL. This language is retroactive to March 9, 2020. Normally, the MLUL requires that municipalities deem a pending land use application complete within 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 as of 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 Chapter 53's time relaxation language. Most notably, the language would appear to speed up the timeline for some municipal decision making 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 (a time period already run) or 60 days after the application is deemed complete. This time is not added onto the existing statutory time periods—rather it simply cuts across all time periods and effectively means that all decisions must be made in 60 days. 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 10 acres and 10 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 a 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.

Chapter 53 represents a positive policy development for New Jersey businesses and developers and the economy as a whole. But its terms are not as generous or as straightforward as the 2008 Permit Extension Act. Chapter 53 grants automatic extensions to various approvals without requiring the expense of formal applications to various state and local agencies. But, Chapter 53's permit registration requirement forces attorneys and developers to inventory and register their state agency approvals. The law's registration language could also be clearer as applied to local government approvals. Chapter 53's relaxation of MLUL deadlines is a helpful policy change in light of the COVID-19 crisis. However, the language used, in certain instances, would require that municipalities act sooner on land use applications than they otherwise would have to under the MLUL. Notwithstanding these issues, however, Chapter 53 does represent a net positive for the New Jersey economy.

Edward W. Purcell is an associate with Price, Meese, Shulman & D'Arminio, in Morristown. He concentrates his practice in the areas of land use, planning and telecommunications law.