New Jersey Land Use and Environmental Law

By: Henry T. Chou, Esq.

Last summer, the New Jersey Department of Environmental Protection (NJDEP) changed its rules to reassign the responsibility of mapping public sewer service areas from local agencies to county governments. The new rules require counties to promptly approve and submit county-wide wastewater management plans (WMPs) - the plans that govern which properties may be serviced by public sewer - although NJDEP has indicated that it may grant extensions for certain counties.

What is the significance of these technical changes? If a county fails to prepare a WMP, and municipalities within the county do not subsequently prepare their own plans, NJDEP reserves the right to impose a county-wide moratorium on new sewer hookups, meaning no new development occurs until plans are in place. Sewer service area designations would only be restored when the county or municipalities adopt appropriate WMPs. At this time, it appears that four rural counties are not cooperating with NJDEP and could potentially face a county-wide moratorium on new sewer hook-ups.

While seventeen counties are “cooperating” with NJDEP, many of them are dissatisfied with the process because the WMPs were essentially pre-prepared by NJDEP with no input from the counties. NJDEP, by creating “draft” WMPs for each of the counties, made an assessment of areas it deemed appropriate for sewer service, and now the burden is on counties and municipalities to demonstrate to NJDEP that the WMPs must be adjusted to suit local development plans. Many sites zoned for development or previously approved for development have been removed from sewer service areas in the “draft” WMPs prepared by NJDEP due to unspecified “environmental” concerns.

The “draft” WMPs also propose to remove a number of sites designated for development of affordable housing from existing sewer service areas. Many of these sites are included in local housing plans that were submitted by municipalities to the New Jersey Council on Affordable Housing (COAH) in furtherance of local compliance with the “third round” affordable housing obligations assigned by COAH. Given that municipalities and COAH have a strong interest in facilitating the development of affordable housing on those sites, NJDEP’s proposal to prevent sewer service to those sites presents a conflict between the policies of sister State agencies (sigh, only in New Jersey) that must be resolved.

Posted by Henry T. Chou, Esq. at 06:05 PM | Permalink | Comments (0) | TrackBacks (0)

By Michael J. Lipari, Esq.

As developers and building professionals are aware, a request for a height variance can be granted by the planning board in certain circumstances and the zoning board of adjustment in others. One developer recently found out that a difference of one inch in the requested relief from the height limitation ordinance was enough to invalidate the entire approval and force the developer to start over in front the appropriate board.

Builders and developers must be very careful when seeking relief from municipal height restrictions. Height variances are unique in that some may be considered bulk or C variances, while others may be considered special needs or D variances. A municipal planning board has the power to grant bulk variances in connection with a site plan. However, once a D variance is involved, the planning board is divested of jurisdiction and the applicant must appear before the zoning board of adjustment. The failure to adhere to this strict jurisdictional requirement could result in the invalidation of a site plan approval and significant waste of time and money having to start from scratch in front of the appropriate board.

The Municipal Land Use Law states that the board of adjustment shall have the power to “grant a variance to allow departure from regulations…to permit…a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure.” N.J.S.A. 40:55D-70(d)(6). In a case styled Shri Sai Voorhees, LLC v. Township of Voorhees, recently approved for publication, the trial court was faced for the first time with the question of whether an application to erect a principal structure exactly ten percent higher than the zoned height limit requires a bulk C variance or a special needs D variance.

The trial court in Shri Sai analyzed both the language of the statute as well as the history surrounding the enacting legislation and concluded that a request to erect a principal structure equal to or beyond ten percent higher than the maximum zoned height requires a special reasons D variance. This type of relief may only be granted by a zoning board of adjustment. As was the case in Shri Sai, a planning board is without jurisdiction to hear such a variance and therefore any site plan approval is void ab initio. The court vacated the site plan approval and the developer was required to start anew in front of the proper board, the zoning board of adjustment.

When applying to the planning board for a site plan approval, the applicant must make sure to keep all height variance relief below ten feet or ten percent in order for the planning board to properly hear an application. Had the request for relief in Srhi Sai been reduced by just an inch, the site plan approval would have been upheld.

Posted by Henry T. Chou, Esq. at 01:40 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

In a highly anticipated move, Governor Corzine signed the "Licensed Site Remediation Professional" (LSRP) bill into law this morning. The legislation - based on a successful model developed by the State of Massachusetts - creates a 13-member board comprised of public and private representatives that licenses professionals to oversee site cleanups that are currently under the jurisdiction of New Jersey Department of Environmental Protection (NJDEP).

The impetus for the bill was the massive backlog of contaminated sites in need of remediation, combined with NJDEP's inability to reduce the backlog due to lack of staff and resources. Governor Corzine signed the bill over the protests of the environmental community, which was concerned that licensed private professionals could be influenced by developers who paid their fees. Ultimately, however, the interests of the public won out, as the urgent need to clean up 20,000 contaminated sites in the State outweighed the speculative concerns of the environmental lobby.

NJDEP is currently drafting regulations to implement the program, and will shortly begin the process of licensing professionals to participate in the program.

Posted by Henry T. Chou, Esq. at 05:36 PM | Permalink | Comments (0) | TrackBacks (0)

By: Henry T. Chou, Esq.

Apparently bowing to the pressure of mayors throughout the State, Governor Corzine has conditionally vetoed legislation that would have allowed builders to convert age-restricted (55+) residential developments to non-age restricted developments that would be open to persons of all ages.

The legislation, passed by the Senate and Assembly in March, would have allowed builders to essentially convert their developments as of right, as long as they substantially conform to the original development plans and agree to set aside a portion of the homes as affordable housing.

Mayors across the state lobbied against the legislation, arguing that it would result in an influx of families with children into their communities, which would in turn burden their school systems and increase property taxes.

In an effort to address the concerns of the mayors, Governor Corzine vetoed the legislation and represented that he would ultimately sign it if it were revised to include language that would give local land use boards the discretion to deny a conversion application if the converted development would result in substantial detriment to public interests and impair the intent of the town's zoning ordinance and master plan.

While the revisions proposed by Governor Corzine were aimed at placating the fear of municipalities, they will not in reality give local land use boards much discretion to deny conversion requests. Put otherwise, it would be difficult for a board to find that a converted development would be a substantial detriment to public interests and impair the intent of the zoning ordinance and master plan if it previously approved the same development plans. To do so would require boards to make the outlandish - and legally unsupported - determination that schoolchildren are a detriment to public interests.

It is anticipated that a revised bill will be considered by the Legislature in the next few months. In the meantime, it appears that municipal officials will continue to oppose any revised bill.

Posted by Henry T. Chou, Esq. at 03:23 PM | Permalink | Comments (0) | TrackBacks (0)