New Jersey Zoning Watch

Both houses of the Legislature quietly passed an amendment to the Municipal Land Use Law which provides that “renewable energy facilities” which are sited upon tracts zoned for industrial use which are 20 acres in size or greater and owned by a single individual or entity, shall be considered “permitted uses” under the MLUL. The bills are S-1299 and A-2550. The Assembly bill passed by a vote of 60-15-4 on October 27, and the Senate version passed by a vote of 34-0-6 on October 23.

“Renewable energy facilities” are defined as “a facility that engages in the production of electric energy from solar technologies, photovoltaic technologies, or wind energy.”

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In putting together your “keeping on top of the latests land use trends” reading list, include the following two articles written by Andrea Alexander of The Record. Both address some of the challenges and opportunities facing communities as a result of the “green” movement.
In an article from September, Ms. Alexander highlights a recently adopted ordinance in Wayne, New Jersey, that limits the development of wind turbines near residential neighborhoods, schools or day care centers. According to the article:

The Township Council unanimously adopted the measure after a heated debate Wednesday night: Are turbines unsightly intruders with potentially damaging health effects? Or should they be accepted as just part of the skyline of an energy-independent future?

“When you look out your back door, you don’t want to look at a nuclear power plant, you don’t want to look at a wind turbine,’’ Mayor Christopher Vergano said today. “We are protecting the values of residential properties by keeping them [at] a certain setback.’’

Wayne is not the first community to address the issue, however, and won’t be the last. Given the initial reactions of municipalities to regulating the siting of wind turbines (despite their benefits to the community), it appears that obtaining approvals for such facilities will be more like hearings on telecommunications towers and monopoles, than more esthetically “acceptable” projects.

The township isn’t the first in the state to adopt rules to keep wind turbines away from homes. Brick in Ocean County adopted an ordinance in April that allows turbines only in business and industrial zones. At least five towns in the state have adopted ordinances to set guidelines for the location of wind turbines. The regulations generally require setbacks to keep the renewable energy source away from neighbors.

Hillsborough in Somerset County allows residents, farmers and business owners to put up turbines on lots that are greater than 10 acres. Galloway Township in Atlantic County restricts turbines to one-acre residential lots, with a setback from the property line equal to the height of the structure.

Under Wayne’s ordinance, Mayor Christopher Vergano said, turbines could be permitted along sections of Routes 23 and 46 and in the industrial areas off the West Belt Parkway.

For the environmentalists’ perspective of the battle in Wayne and other communities over alternative energy technologies, see the press release entitled “It’s Not Easy Being Green,” at Environment New Jersey here.

Ms. Alexander also wrote an article entitled “Towns Start Reshaping The Landscape for Solar, Wind,” this week on the “green” movement and how municipalities are taking it into consideration in land use planning.

Planning experts say slowing global warming goes beyond putting solar panels on homes and wind turbines on industrial lots. It’s going to take a gradual — but decisive — shift in your way of life.

. . . .

A green community will position new homes near transit, parks and stores, or bring those necessities to existing neighborhoods.

Transportation is the largest contributor to greenhouse gases, and “the most important part about mixing land uses is: People tend to use their cars less, and that is what living green is all about,” said Debbie Alaimo Lawlor, chief of Sustainability and Economic Growth for the New Jersey Meadowlands Commission. The NJMC has land-use authority over parts of 14 communities in Bergen and Hudson counties.

Westwood accepted the connection years ago in zoning the heart of its downtown as a “special pedestrian environment.” The zoning bans new restaurants and sports clubs — destinations people drive to, then leave.

But it welcomes service businesses such as the camera shop, florist and dry cleaners so one walk downtown can fill several errands.

Green planning also was boosted there by another essential: a train station. Houses closest to the station are selling the fastest and holding their value in a down market.

While I’m not particularly a fan of labeling restaurants and fitness centers as “anti-green,” the article does make one re-think how “reducing our carbon footprint” interacts with zoning ordinances in older downtowns which are probably relics of the 1960s (both the downtowns and the zoning).

The article also includes discussion of how the state legislature, regional planning authorities like the Meadowlands Commission and individual municipalities are attempting to provide incentives for (or some might say, force) builders to encorporate green technologies or criteria into their projects, such as solar power or LEED standards.

For the full article, click here.

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Paul Mulshine, a columnist with the Star Ledger, wrote a particularly distressing piece in Tuesday’s paper regarding the plight of one homeowner and her losing battle with the state over burdensome environmental regulatory requirements as a result of enactment of the Highlands Act in 2004.

While it is important to focus on the macro issues of preserving water quality and open space that were the driving force for many regulators and legislators who supported the Act, one must not lose sight of the burden the Act has put upon many property owners who bought property intending for it to be the nest egg for their family and who ended up with a goose egg. Furthermore, funding sufficient to compensate landowners for their losses is not yet available and, given the current economic climate, will not likely be part of the state’s toolkit for some time.

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An article from this weekend’s Courier Post highlights the fact that alternative energy sources, such as wind power, are not exactly receiving wide-spread acceptance under local zoning codes in New Jersey. According to the article, environmental organizations such as the Sierra Club are supporting legislation which would make substantial changes to state law to encourage the development of windmills and solar power.

The story refers to several legislative proposals, including a bill (S1303/A3062) pending in the legislature that would codify windmills and solar power facilities as “inherently beneficial uses” under the Municipal Land Use Law. Passage of this amendment to the MLUL would put such alternative energy facilities into a narrow classification of uses that satisfy the “positive criteria” in a “use” variance analysis. Applicants proposing such facilities would still have the burden of proving to a land use board that the proposed use does not have a negative or detrimental impact on the zoning plan for the community.

One significant bill (S1538/A2859) not mentioned in the story involves allowing the installation of solar and wind generation facilities on certain preserved farmlands and includes solar and wind energy generation on commercial farms as protected activities under the “Right to Farm Act.” This bill is pending in the Assembly after passing the Senate in June in a 36-0 vote, with 4 senators not voting.

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The New Jersey Supreme Court heard oral argument this week to decide whether the Highlands Act unjustly barred development of a 93-acre lot retroactively without providing out just and proper compensation.

According to the Asbury Park Press:

Landowners OFC, LLC received approval from Washington Township to subdivide the lot to build 26 homes in 1999 — five years before the Highlands Act, which aims to limit development to protect drinking water supplies, became law. But an error in approving a water supply permit by a township official delayed the application, resulting in the project’s final approval missing the development deadline set under the 2004 law.

While the Justices reserved decision, at least two members of the panel seemed sympathetic to the plaintiff’s claims:

Looking at how OFC’s permits were botched and TDRs were not available to them, Associate Justice Barry T. Albin said the totality of failure resulted in “a developer caught into this intricate governmental mess.” Albin earlier, however, said that while the situation may be unequitable, the company’s due process rights were not necessarily violated.

“I don’t care where you lay the blame, you certainly can’t lay it at the foot of the plaintiff because they had nothing to do with it,” added Associate Justice Roberto Rivera-Soto.

For the full article, click here.

For the Appellate Division opinion in OFP, LLC v. State of New Jersey, finding that the plaintiff failed to pursue a hardship waiver and, thus, failed to exhaust its administrative remedies, click here.

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The Permit Extension Act, which passed the legislature in June, was signed into law by Governor Corzine over the weekend without a public ceremony. The Act, which extends the life of certain permits and land use approvals in an uncertain economic climate, was championed by a wide range of smart growth advocates, the development community and numerous local elected officials. Although several changes were made during the committee process from its original form that limited the extention from 6 years to 2 years as well as the scope of the legislation, environmentalists waged an unsuccessful battle to have the Governor conditionally veto the legislation.

For the Star Ledger story, click here.

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New Jersey Department of Community Affairs Commissioner Joseph Doria has sent a letter to State Senator Steve Oroho advising that DCA will “review its rules to address this type of unique situation where a family needs to rebuild its home as a result of fire or natural disaster.”

It appears that this action is the result of recent press accounts regarding a Franklin Township family whose home was lost in a fire and, as a result, a demolition fee is generated under the new COAH regulations adopted June 2. While the Township may waive the fee to the homeowners, it would still be responsible for the affordable housing obligations generated by the demolition and “new” construction unless it successfully petitions COAH for a waiver. Senator Oroho represents Franklin Township.

For the full story from the Star Ledger, click here.

For the Star Ledger’s editorial on the issue, click here.

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While the Permit Extension Act passed the Legislature with bipartisan support, environmentalists fought hard to water down provisions of the bill during the committee process in June. However, not satisfied with the compromises they helped broker during the Legislature’s consideration of the bill, environmental groups held a press conference yesterday calling on Governor Corzine to conditionally veto the Act and identified key sections of the bill to modify.

Given that the Governor made it a priority to have a quick signing of the amendments to the Fair Housing Act into law, legislation decried as anti-growth by many groups and which the League of Municipalities opposed as creating a substantial burden on municipalities to absorb the cost of affordable housing generated as a result of non-residential construction, while the Permit Extension Act has languished, there is substantial concern from smart growth advocates and the development community that the Governor will yield and conditionally veto the Permit Extension Act. According to a joint press release from the Sierra Club and New Jersey Environmental Federation, approximately thirty environmental groups support a conditional veto.

The groups asked the Governor to fix the following issues in the bill:

* Eliminate the Dracula Clause, which would bring back approvals and permits that have already expired in violation of the right to due process guaranteed by the U.S. Constitution. Many of the projects that have lapsed and would now be brought back to life include some of the worst proposals in New Jersey, including Cherokee in Camden, Encap, and dumping dredge spoils in Palmyra Cove Nature Center. This provision would have tremendous environmental impacts.

* Provide for good planning, especially in redevelopment areas where communities have changed their zoning to promote appropriate redevelopment, such as transit villages and affordable housing, as well as in communities that have amended their Master Plans and zoning ordinances. In the past eighteen months cities like Newark and Jersey Cities, as well as many towns such as Bernardsville, have worked to redo their Master Plans and zoning. This bill would thwart those actions.

* Exempt Planning Area 4, which is the state’s prime agricultural land and necessary to maintaining a vibrant agricultural economy.

* Exempt the Global Warming Response Act and other important standards that are being set to help New Jersey reduce greenhouse gas emissions and transition to a clean energy economy. The bill in its current form would exempt many new developments from meeting more stringent energy efficiency and green buildings standards for homes or commercial buildings.

* Clarify the extremely open-ended definition of “approval” by deleting the last nine lines of the definition.

“In the midst of presidential politics, Governor Corzine has to govern New Jersey, including deciding the fate of the Permit Extension Act. Within two weeks, he will decide whether or not to undermine core environmental and public health protections, good planning and the constitution,” commented Dave Pringle, Campaign Director of the New Jersey Environmental Federation. “Despite assertions to the contrary, developers aren’t motivated here by the public interest of economic stimulus, which this bill won’t provide anyway, but rather by a special interest - further lining their already well-lined wallets.”

For the full press release from the Sierra Club’s website, click here.

For a Courier News article on the issue, click here.

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Despite the substantial impediments to development in the Highlands imposed upon over half of the acreage in the region as a result of the Highlands Act, environmentalists are not satisfied. Several last minute amendments to the plan proposed by the environmental lobby on the eve of the Highland Council’s public hearing to vote on the Highlands master plan were rejected. As a result, environmental groups have been lobbying Governor Corzine to veto the Highlands master plan.

The latest argument being presented to defeat the current master plan is that the master plan adopted by the Highlands Council does not take into account the new affordable housing rules and legislation (A-500/S-1783), which was signed into law by the Governor on July 17 - the same date the Highlands master plan was voted on by the Council. As a result, environmentalists argue, the Governor must veto the plan so the Council will incorporate the changes to the Fair Housing Act into the plan.

The Star Ledger reports on the perceived incongruities between the plan and A-500 here.

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On Wednesday, July 16, 2008, Philip J. Morin III, Special Counsel in the Firm’s Real Estate Department, will be on the faculty for this one-day Lorman Educational Services Seminar that will discuss land use law, environmental issues and the development approval process in New Jersey. Panelists will also address the status of the third-round affordable housing regulations, potential amendments to the redevelopment laws, and review recent court decisions impacting development issues.

Mr. Morin will present several lectures throughout the day, including “Overview of Development and Land Use Law,” “Land Use Procedures and the Public Hearing,” “Ethical Considerations” and “Recent Trends and Municipal Government Perspectives.” Also on the faculty are Mary Elizabeth Warner, Esq., Real Estate Counsel for Quick Chek Corporation; Brian McMorrow, P.E. of Bohler Engineering, PC and Paul Grygiel, AICP, P.P., of Phillips Preiss Shapiro Associates, Inc.

The seminar will take place in the Holiday Inn Cherry Hill-Philadelphia in Cherry Hill, New Jersey from 8:30 a.m. to 4:30 p.m. NY and PA CLE credit is available.

For for information and to register for this event, please click here.

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