Article

It’s Not Easy Being Green: Increased Green Regulation Requires More Attention From Builders
by Michael J. Lipari

With the increasing pressure on builders, architects, planners and designers to develop environmentally friendly or “green” projects, it is important to stay on top of the multitude of regulations being implemented at the state and local levels. With so many bills affecting green construction being introduced in the Legislature, as well as municipalities adopting ordinances regulating the same, the uncharted territory of green regulation now requires the full attention of building professionals. Furthermore, until the Legislature adopts a standard set of regulations, the type and breadth of green elements permitted in a project may vary significantly from one municipality to the next.

New Jersey Leading the Charge

New Jersey, which is quickly becoming a pioneer in the world of renewable energy, has already enacted legislation that promises to significantly reduce greenhouse gases and provide 22.5% of its energy through renewable sources by 2020. The State is also set to construct the nation’s first offshore wind farm, which will provide alternative energy to approximately 110,000 homes from a series of turbines located some twenty miles off the coast of Avalon. Governor Corzine has stated his desire to develop additional wind farms within the boundaries of the State in an effort to maximize renewable energy sources and help end the State’s dependence on foreign oil. The Legislature is currently considering several bills that, if enacted, would further advance the implementation of alternative energy. One piece of legislation recently enacted in New Jersey allows a municipality to adopt a “green buildings and environmental sustainability” component to its master plan that would have a substantial impact on municipal land use. Several other bills are in the works, and should be closely monitored.

Legislative Initiatives

Wind and solar energy are at the forefront of the green movement. Examples of some pending bills include the requirement of solar energy systems in all new public schools (A-3208), green building standards in all new affordable housing (A-1626), solar panels on noise barriers erected on roads and highways (A-3347) and solar energy fields on preserved farm land (A-2859), as well as in industrial zones (A-2550). However, the proposed legislation with the sharpest teeth is aimed at new home building.

Of particular interest to building professionals is the “Residential Development Solar Energy Systems Act” (A-1558), which has been passed by both the Assembly and the Senate and, as of this writing, awaits the signature of the Governor. This bill requires that any developer of “25 or more dwelling units” offer to install, or provide for the installation of, a solar energy system at the point that the “prospective owner enters into negotiations with the developer to purchase the unit.” This obligation will, if enacted, have a significant impact on the planning and building stages of a residential development. Building professionals will be faced with new variables that will need to be addressed at the early stages of the development process.

This bill would also require developers to “disclose in any advertising” 1) that a prospective owner may have a solar energy system installed in their unit; 2) the total cost of the system installation; and 3) an estimate of the potential savings associated with the solar energy system as opposed to the standard gas or electric system. The bill also offers some technical challenges, such as how to meet the bill’s requirements when a home does not have a southern exposure.

Another legislative initiative that may cause a change in the approach taken with regard to environmental building design is A-2994, which would amend the Municipal Land Use Law to authorize municipalities to require the use of solar energy in new development projects. If enacted, this bill would authorize local land use boards to condition approval of a site plan or a subdivision upon compliance with those solar energy standards included in the master plan. This poses many new and previously unexplored issues to builders and developers who may not have planned for such conditions. Building professionals must prepare for municipalities that could implement such green elements into their master plans. If there is a green element, builders will need to bring themselves up to speed on these areas of emerging technology and prepare for the possibility that such conditions are imposed.

Municipal Regulation

While everyone purports to be in favor of green energy initiatives, some municipalities are more concerned with potential downsides, such as aesthetics and noise, and have adopted ordinances that impede the growth of renewable energy sources. For example, Lower Township is one municipality that has rescinded an ordinance that allowed residents to erect windmills upon obtaining a simple permit. The Township governing body felt that, in light of the increased demand for green energy sources, the ordinance, which became effective in 1981, did not provide enough regulation.

Some municipalities have limited the areas in which windmills or wind turbines may be used. Wayne Township has banned the use of wind turbines in certain zone districts within the Township. After one business owner sought to erect a turbine on the top of his carwash, the governing body adopted an ordinance that banned such use within 1,640 feet of residential neighborhoods, schools and day-care centers. The council cited noise and health concerns for their decision. The Township of Brick also banned the use of turbines in areas outside of business and industrial zones, and has imposed substantial setback requirements.

Other municipalities allow for wind turbines, provided that the site in which they are constructed is large enough. Galloway Township in Atlantic County will permit such use on residential lots no smaller than one acre, with a fall- zone setback equal to the height of the structure. In Hillsborough Township in Somerset County, the minimum lot size for such elements is ten acres.

Matters Under Study

While some municipalities have moved quickly to adopt ordinances affecting green development, others have put plans on hold until studies can be done to determine the feasibility of such projects. Stafford Township in Ocean County is currently collecting data on wind powered energy and has constructed a test mill site to determine whether it would be feasible to implement a large scale windmill farm within the Township. While the Township plans to implement new ordinances regarding wind and solar power, no timetable has been set.

Other municipalities have also jumped on the windmill bandwagon. The City of Bayonne plans to undertake studies on whether a wind turbine would be able to completely eliminate the energy costs associated with pumping out the City’s sewage. Similarly, Barnegat Township recently voted to seek planning board assistance in drafting an ordinance to regulate wind turbines. In doing so, Barnegat will erect an anemometer to measure wind on Township property near the bay front. Positive results could result in wind powered homes and businesses.

Conclusion

As it becomes clearer that renewable forms of energy, including wind and solar power, are here to stay, one should expect an even sharper increase in regulation at all levels of government. The State of New Jersey continues the push to turn these renewable sources into long-term cost-effective options in both commercial and residential use. The legislative proposals and municipal ordinances discussed above, with others to come, may also present obstacles directly impacting building professionals by creating new challenges that require a change in the approach taken on every type of development.

Legislators are aggressively moving to implement regulations that will require and/or limit the types of green elements in all types of construction as they work toward their overall goal of achieving a greener New Jersey. Municipalities are also implementing green regulations. Some ordinances are designed to ease the burden on green building and some to outright ban it. It must now be a priority for building professionals to carefully monitor these regulations that will have a substantial impact on all new development projects. A thorough understanding of the rapidly changing legal environment affecting this dynamic area is the first step toward successful green development.

Michael J. Lipari is an associate of the fi rm and a member of the Land Use Division. He concentrates his practice in the land development application and permitting process and in the litigation of land use matters.