January 1, 1900

Thomas F. Carroll, III

Each passing day brings more news of regulatory changes throughout the State of New Jersey. One day we have a "BIG Map,"and the next day we don't. Or do we? One day we have rules proposed by the Council on Affordable Housing for "third round" obligations, and the next day we wonder if rules resembling those proposed will actually be passed. And we are all left to wonder whether any given development is "smart" or not. And on it goes.

The challenge in finding buildable land in New Jersey is hardly a new one, but it becomes increasingly imposing as time goes by. This article highlights some of the most significant regulatory developments, both those we have seen already and those we are likely to encounter in the months ahead. Only by carefully tracking such issues, and affirmatively acting to influence the regulatory process when appropriate, can the search for buildable land be made most fruitful.

The Status of Mount Laurel

Elsewhere in this issue we discuss the status of implementation of the Mount Laurel doctrine by the Council on Affordable Housing (COAH) or, more to the point, its failure to do its duty in this regard. The "second round" of compliance with the Mount Laurel doctrine lapsed in 1999, and COAH has still failed to adopt "third round" regulations requiring satisfaction of the constitutional obligation to produce affordable housing. Readers interested in the details of ongoing efforts to enforce the Mount Laurel doctrine are invited to the more comprehensive discussion provided in this issue of our Quarterly. Suffice to say at this juncture that developers must monitor that process carefully, with an eye toward predicting where the best development opportunities will arise.

New DEP Stormwater Regulations

The DEP's recently adopted stormwater regulations provide yet another serious hurdle to development. Certain developments are "grandfathered" from the effects of the new regulations (those developments possessing preliminary or final municipal approvals and one of four specified DEP permits). However, all new development will be subject to the new rules, and they can be extremely onerous. Among other things, they may require 300 foot buffers along classified streams, as well as truly cost-generative stormwater management techniques.

Thus, the hunt for buildable land must now include mapping of "C-1" streams and a thorough up-front analysis of the manner in which stormwater can be handled so as to leave some land upon which development may actually occur. Land that could be labeled as being suitable for threatened and endangered species must also be identified.

The stormwater regulations are legally suspect for a number of reasons. For example, there seems to be little justification in the scientific/engineering literature for 300 foot buffers. The very limited grandfathering provisions also run contrary to the language of the Municipal Land Use Law providing for "vesting" of development rights upon acquisition of preliminary approval. Similarly, the stormwater regulations essentially vitiate the Legislature's goal, when authorizing the Residential Site Improvement Standards (RSIS), for cost-effective stormwater regulations. However, whether the stormwater regulations withstand judicial scrutiny remains to be seen, and the suitability of vacant land must be analyzed with the stormwater regulations in mind.

The State Plan

The State Development and Redevelopment Plan (State Plan) has long been viewed by many as a mere "guide" that need not be analyzed. However, recent years have produced more and more regulatory measures, and even local zoning, tied to the State Plan. In particular, DEP sewer and water decisions may be tied ever more closely to State Plan designations. Thus, the State Plan must be carefully studied when analyzing vacant land. Moreover, the ability to change the State Plan designation to a higher growth classification must always be considered. Such changes may come in the form of petitions to amend the State Plan mapping, and/or within the "cross-acceptance" process that accompanies the periodic revisions to the State Plan. That process is once again commencing and savvy builders would be well-advised to study the State Plan carefully, both as to existing landholdings and land under review for acquisition.

The Big Map

The so-called Big Map was seemingly shelved last year, with DEP suggesting that its low-growth objectives would be accomplished through regulations, as opposed to another new statewide map. Whether the Big Map stays buried remains to be seen, but any such maps arising out of Trenton must be carefully analyzed.

Sewer and Water

As always, the availability of sewer and water must be carefully considered. Mapping of sewer and water service areas must be studied and, as noted above, the State Plan may play into this as well, since sewering of lands within Planning Areas 3 through 5 is discouraged. Conversely, the existence of sewer and water within such planning areas could be used as a justification to get the planning area designation changed to one that is more favorable for development. Even where septic systems and/or well water are proposed, all available mapping, including soil mapping, must be studied for the effect on development yield.

Local Zoning Issues

Analysis of the local zoning map, zoning ordinances and master plan documents remains as important as ever. It is a sound idea to compare local zoning maps to the State Plan maps, as more and more municipalities are seeking to downzone land where a low State Plan planning area designation seems to support lower density. Conversely, where land is zoned in a manner that would provide for more intense use than the State Plan's planning area designation, the zoning may provide a reason to improve the planning area designation if the State Plan is creating an impediment to development at full yield.

Similarly, zoning ordinances and the master plan must be examined to determine whether the municipality in question is in compliance with Mount Laurel and, if not, whether rezoning keyed to the Mount Laurel doctrine is feasible. Indeed, careful study of the local zoning and master plans may allow one to surmise where a favorable rezoning may take place given the ongoing need to fulfill the Mount Laurel obligation.

Urban Development Opportunities

Elsewhere in this issue of the Quarterly we discuss urban development issues, including brownfields development and changes in the redevelopment laws. As always, market demand will play the dominant role here, but readers are encouraged to review our articles dealing with these subject areas.

Conclusion

Finding developable land in New Jersey has been challenging for many years and, given the regulatory atmosphere in which we operate, it gets more challenging all the time. Nevertheless, there are many resources available in the hunt, especially mapping documents. Full consideration of those listed above will enable one to identify sites with real potential and, just as important, identify those sites that are simply too encumbered by regulations to be of any real value to builders.

Thomas F. Carroll, III, a partner of Hill Wallack, is a member of the firm's Land Use Division. He serves on the NJBA's Land Use and Planning Committee. Vice-Chair 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.