Article

STATE PROPOSES BOTH NEW GROWTH AND NEW BATCH OF ANTI-GROWTH REGULATIONS
By Thomas F. Carroll, III

The State of New Jersey has unveiled some rather ambitious housing proposals. For example, Governor Corzine has pledged to provide for 100,000 affordable housing units. Similarly, the Council on Affordable Housing (COAH) has proposed a new set of “third round” regulations, which also propose substantial numbers of affordable housing units along with the market rate housing units, and nonresidential development, that would accompany such lower income housing construction. The State also has ambitious dreams concerning the redevelopment of our depressed urban areas.

However, while certain branches of the government are calling for such ambitious development and redevelopment, other branches are proposing new regulations that would render all that envisioned development largely impossible. The state agency that is leading the anti-development charge is the Department of Environmental Protection (“DEP”). Meanwhile, the state’s economy slides further and further into the abyss. A crucial question confronting the Corzine administration is sharply framed: Will the State of New Jersey allow for the economic growth it envisions, or will it not?

To allow the growth to occur, the proposed DEP regulations must be shelved or substantially modified. Other State policies (existing and proposed) must be addressed as well. Those interested in development and economic growth should familiarize themselves with the anti-growth proposals, and such interested parties would be well-advised to do everything they can do to stave off proposed anti-growth restrictions and roll-back existing restrictions. A sampling of the anti-growth measures at issue is as follows.

Proposed Category C-1 Rules

The currently effective DEP restrictions applicable to C-1 waterways are draconian, and they have already brought numerous projects to a grinding halt. The restrictions applicable to C-1 waterways include a 300 foot buffer requirement, and restrictions concerning the nature of waters that may enter C-1 waters, including treated wastewater.

The proposed DEP rules would add over 900 miles of streams to the waters already categorized as C-1. Thus, enormous land areas would be added to the already “off-limits” lands surrounding C-1 waters. These proposed rules would also seriously clash with State Plan “growth areas” and areas slated for redevelopment, and would have a very negative effect on efforts to provide affordable housing per Governor Corzine’s initiative and COAH’s new proposed rules. There already exist a litany of regulations designed to handle stormwater and wastewater management. DEP’s proposed C-1 regulations present a classic example of regulatory overkill. If DEP does not adopt these rules by May 21, 2008, it could not do so without re-introducing and republishing them.

 Site Remediation/Soil Cleanup Standards

These proposed DEP rules would render redevelopment and Brownfield site remediation infeasible as to many properties. They would add considerable complexity and costs to an already onerous regulatory framework. Far from enhancing environmental protection, the end result of these rules, if adopted, would likely be to convert feasible redevelopment projects into infeasible projects, thereby ensuring that cleanup efforts required by existing laws would not occur. If DEP does not adopt these rules by May 7, 2008, it could not do so (again, unless it re-introduced and republished them).

Proposed Water Quality Management Plan Rules

While it is difficult to say which of the numerous DEP rule proposals would be most effective in quashing development and economic growth, the proposed DEP Water Quality Management Plan rules may take that “prize.”

These rules would, if adopted, require the submission of new wastewater management plans throughout the state, failing which all existing “sewer service areas” would effectively be eliminated. DEP even concedes in its rule proposal that this would result in a development moratorium having all of the drastic economic impacts that a moratorium would bring. The impact of these rules would be most devastating in areas that are within DEP-approved sewer service areas, but not yet served though sewer infrastructure. Again, these rules seriously clash with State Plan policies concerning “growth areas” and would thwart efforts to provide for affordable housing or any type of development requiring public sewer. DEP’s deadline for adopting these rules, without a re-introduction and re-publishing, is May 21, 2008.

Other Proposed DEP Rules

The above summaries merely scratch the surface when it comes to describing the various anti-growth DEP rule proposals that are now pending. For some rule proposals the comment period has now closed, and for others the comment period is still open. DEP’s web site lists them all. See http://www.nj.gov/dep/rules/notices.html.

Moreover, other proposed anti-growth DEP rules have been discussed, but have not yet been introduced. A prime example is the DEP’s discussion of rules ostensibly designed to protect threatened and endangered species. While such rules cannot yet be fully analyzed, public discussions concerning them indicates that, if any developable acreage would remain after other DEP rules are applied, rules ostensibly designed to protect threatened and endangered species would eliminate that acreage as well.

Other State Anti-Growth Measures

While DEP is clearly leading the charge when it comes to proposing anti-development measures, DEP is by no means alone. For example, the State Planning Commission has unveiled draft revisions to the State Plan map that would further limit the acreage to be located within their “growth areas” (primarily Planning Areas 1 and 2). Moreover, the Legislature’s concept of channeling growth into “Centers” has simply not been implemented to any significant degree by the State Planning Commission, and there is no indication that they are willing to do so.

Further depressing economic growth opportunities is the proposed Highlands Regional Master Plan. The Highlands Act, enforced by the Highlands Council and the DEP, intended substantial growth opportunities within the “planning area” portion of the Highlands Region, along with its profound development prohibitions within the “preservation area.” The proposed Highlands Regional Master Plan (currently open for public comment) would by-and-large eliminate the planning area/preservation area distinction drawn by the Legislature in the Highlands Act, and place much of the planning area “off limits” as well.

What Can Be Done About It?

Action must be taken now to prevent devastating consequences that would result from the various DEP anti-growth proposals. Anti-growth forces in New Jersey are willing to risk destruction of the state’s economy through elimination of economic growth opportunities. The rest of the state’s people, especially those involved in the real estate development industries, must make their voices heard. The administration in Trenton must clearly hear that New Jersey residents and businesses to do not want to see economic growth halted. Those opposing anti-growth measures must contact their legislators and administration contacts letting their voices be heard. Positive publicity for pro-growth forces must be sought just as anti-growth forces do. Pro-growth forces must band together to accomplish their objectives.

In short, policymakers in Trenton must be held to make good on their promises of providing substantial housing, redevelopment and other forms of development. Indeed, the obligation to provide for affordable housing is a constitutional imperative under New Jersey’s Mount Laurel doctrine. Litigation can often result in the overturning of anti-growth laws, but litigation is costly, time-consuming and uncertain. A far better course would be to prevent the adoption of the numerous anti-growth measures that have been proposed, and to roll-back the more devastating and baseless development restrictions that are already on the books. As the economy continues to deteriorate, one thing is crystal clear—the time for action is now.

Thomas F. Carroll, III, is a senior partner of Hill Wallack LLP and member of the firm’s Land Use Division. He serves as Land Use Counsel to the New Jersey Builders Association and is a member of the Land Use and Planning Committee. Past Chair and member of the Board of Directors of the New Jersey State Bar Association’s Land Use Section, he concentrates his practice in the development application process and the litigation required in the course of land development.

Hill Wallack LLP is one of the largest law firms in Central New Jersey, with offices in Princeton and Atlantic City, New Jersey; Doylestown and Newtown, Pennsylvania. Over the past 25 years, Hill Wallack LLP has earned a reputation for comprehensive problem solving. The firm ’s well-known practice groups in Land Use -- Planning, Zoning, Affordable Housing, and Redevelopment -- Environmental Regulation and Litigation, Regulatory and Government Affairs, Workers’ Compensation, Insurance Defense, Real Estate, Community Association Law, Construction and Business Law are complemented by its specialty practices in Gaming Law, Employment, Professional Liability, Government Procurement, and Public Finance.