New Jersey Land Use and Environmental Law

By: Stephen Eisdorfer, Esq.

The Commissioner of the New Jersey Department of Environmental Protection (NJDEP) has issued a highly anticipated administrative order, which creates new opportunities for property owners and builders to protect their rights to develop with public sanitary sewer service.

The NJDEP’s March 23 administrative order extends the deadline for municipalities and counties to submit revised wasterwater management plans. It also granted individual property owners additional rights and opportunities for input.

Under the Water Quality Planning Act, municipal and county wastewater management plans are legally binding documents that specify which areas can be served by public sanitary sewers and which areas can be served only by septic systems or other alternative wastewater disposal mechanisms. In regulations issued in July 2008, the NJDEP declared virtually all existing municipal and county wastewater management plans obsolete and provided that if any municipality or county failed to submit a revised plan within nine months, its existing plan would be deemed invalid and no further connections would be permitted to existing sanitary sewer systems. This deadline was later extended to 2009.

Continued Application Approval

The new administrative order extends the deadline until April 2011. In the meantime, NJDEP will continue to approve applications for extensions of existing sewer service systems and for construction of treatments, including pump stations and the like, during the period even if the municipality or county has not submitted a revised plan.

The administrative order also gives property owners new rights. It provides that a property can file a written request to be included in a sewer service area. The NJDEP will response to that request within 90 days. If the property meets certain specified criteria, the NJDEP will include the property within the sewer service area even if it was not included in the proposed plan submitted by the county or the municipality.

In addition, the administrative order provides protection for properties in sewer service areas under existing wastewater management plans. If a property is within a service area under an existing wastewater management plan and has certain development approvals, it cannot be removed from the sewer service area under any new wastewater management plan.

View the administrative order here. http://198.138.68.115/siteimages/file/legislative/2010-03_ADMINISTRATIVE_ORDER.pdf

Posted by Henry T. Chou, Esq. at 03:59 PM | Permalink | Comments (0) | TrackBacks (0)

By: Michael J. Lipari, Esq.

The task force created by Governor Christie to examine and provide the Governor with recommendations on how to handle COAH and the future of affordable housing in New Jersey, has issued its findings and recommendations, which was published by the Governor’s office on March 23, 2010.

The five-member Task Force finds that the COAH model is “is outdated and must be changed” in order to provide an affordable housing framework that works for New Jersey in 2010.

The Task Force suggests a New Model that meets four essential criteria of being “sustainable, fair, simple and predictable.” Some of the key elements of the New Model would require municipalities to provide 10% of all new residential development to be set aside for low and moderate income households, with density bonuses permitted to those who exceed the 10%. There would be no obligation on non-residential development. The Task Force also suggests reinstatement of Regional Contribution Agreements (RCA’s) and use of a Transfer of Development Rights (TDR) program.

From a procedural standpoint, county planning boards would be charged with determining the prospective need for affordable housing and whether a municipality has a plan that would meet that need. The State Planning Commission would record the decisions of the county planning boards and issue certificates of substantive certification which would provide municipalities immunity from exclusionary zoning litigation for 10 years.

The Affordable Housing Task Force proposal has many stark differences from the legislative bill known as S-1, which is rapidly moving through the Legislature. In some way, shape or form, the upcoming weeks and months should provide a drastic change to New Jersey’s affordable housing landscape.

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

By: Henry T. Chou, Esq.

*Update: Both Houses of the Legislature have now passed this bill, which will become law if and when Governor Christie signs it.*

Committees of both houses of the New Jersey Legislature have now approved a proposed bill that would change New Jersey's longstanding "time of decision" rule, and the full Legislature is now poised to vote on the measure. On March 4, 2010, the Assembly Housing and Local Government Committee referred A-437 to the full Assembly. One month prior, on February 4, 2010, the Senate Community and Urban Affairs Committee referred its identical version of the bill, S-82, to the full Senate.

The proposed bill would create a new provision in the Municipal Land Use Law that nullifies the "time of decision" rule, which dictates that ordinances in effect at the time of a land use board's decision on an application are applicable, even if the ordinance was adopted after the application had been filed or had already been declared complete. Over the years, the "time of decision" rule has been commonly used by municipalities to harpoon disfavored development applications. The practice involved rezoning properties for which there were development applications pending, leaving many applicants with substantial sunk costs and loss of investment-backed expectations.

The new measure, which will be voted upon by the full Senate on March 11, 2010, and the full Assembly on a later date, provides that ordinances in effect on the date of filing of a development application govern the application, with the exception of ordinances relating to public health and safety. A stated goal of the proposed bill is to bring a measure of stability and certainty to the development application process.

Posted by Henry T. Chou, Esq. at 09:18 PM | Permalink | Comments (0) | TrackBacks (0)

By Henry T. Chou, Esq.

The New Jersey NAACP has filed an ethics complaint against Senators Ray Lesniak (D-Union) and Christopher "Kip" Bateman (R-Somerset), alleging that the Senators' joint sponsorship of a new affordable housing bill that would, among other things, eliminate the New Jersey Council on Affordable Housing poses a conflict of interest because the Senators' respective firms would stand to prosper financially from the proposed legislation.

The NAACP, which opposes the proposed bill (S-1), asserts that the measures proposed by Senators Lesniak and Bateman are favorable to municipalities and would generate additional legal work on zoning and affordable housing issues for the Senators' firms, who represent over 40 municipalities throughout the State. Senator Lesniak claims that the ethics complaint is frivolous.

Next, the Joint Legislative Committee on Ethical Standards will review the ethics complaint and determine whether the allegations made by the NAACP warrant further investigation and action.

Posted by Henry T. Chou, Esq. at 08:07 PM | Permalink | Comments (0) | TrackBacks (0)