New Jersey Zoning Watch

An opinion from the New Jersey Attorney General from April, but released only this week by the Office of Smart Growth, confirms that the Highlands Council’s Master Plan will supersede local and county zoning regulations as well as the guidelines in the State Plan in the Highland’s preservation area.  The preservation area constitutes approximately half of the 850,000 acres in the Highlands.  Adoption of the draft plan is expected this fall.

“It is clear that, upon adoption of the regional master plan by the Highlands Council, the Council will exercise statutory and regulatory authority with regard to the development and use of land within the preservation area,” wrote [Senior Deputy Attorney General Daniel] Reynolds.

All towns located in whole or part in the preservation area will be required to submit local master plans and development regulations — as applicable to the preservation area — to the Highlands Council for approval, Reynolds wrote.

Towns in the less-restrictive planning area could voluntarily bring those lands under the umbrella of the preservation area, which could provide fiscal incentives and development protections, he noted.  Even in the planning area, the Legislature intended the State Planning Commission to work closely with the Highlands Council in developing rules and maps, Reynolds wrote.

There are 88 municipalities and portions of seven counties in the Highlands region. Five towns are totally in the preservation area, 36 are totally in the planning area and 47 towns are split between the areas.  - Star Ledger, June 28, 2007

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A state appeals court is requiring the Corzine Administration to propose its revisions to New Jersey’s affordable housing regulations by December 31, 2007, or two months earlier than requested by the Governor, according to the Star Ledger.   The new regulations must provide a constitutionally-acceptable formula for addressing the affordable housing obligations of suburban and rural communities. 

The deadline is expected to spark a scramble to develop complex new rules for estimating how many houses and apartments are needed for low- and moderate-income families, and for deciding the obligations of as many as 190 towns to provide them.

The previous attempt by the Council on Affordable Housing to set a new formula was thrown out in January by a panel of three appellate judges, who found it was based on bogus calculations, arbitrary rules and unconstitutional changes in the state’s fair-housing law.

That ruling set a July 25 deadline for COAH to come up with a revised version of the so-called third-round housing obligation formula. The administration asked for an extension until Feb. 28. Judge Mary Catherine Cuff, a member of the appeals panel, instead gave it until the end of the year. She also denied an administration request to appoint a special master to oversee the issue.

….

Affordable housing advocates said yesterday they hope Cuff’s latest ruling, issued last week, will bring an end to what they see as an intentional eight-year delay by three administrations to avoid setting new affordable housing numbers.”It is both a time scramble (meeting the Dec. 31 deadline) and a prolonging of a now-eight-year moratorium on third-round rules,” said David Kinsey, a Princeton- based planner who serves as a court-appointed special master in affordable housing litigation. “The third round was to begin in 1999 and there is not in effect today a constitutionally valid fair-share (housing) methodology. … Meanwhile, residential and non-residential development takes place all around us.”- Star Ledger, June 27, 2007

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The public comment period for two key regulatory proposals which will have far-reaching impacts on future development in New Jersey has been extended. The New Jersey Department of Environmental Protection has extended the public comment period on the proposed readoption of and amendments to the Water Quality Management Planning rules, N.J.A.C. 7:15.  According to NJDEP, the amendments include reassignment of wastewater management planning responsibility to the County Boards of Chosen Freeholders; withdrawal and re-designation of wastewater service areas where the applicable wastewater management plan (WMP) is not in compliance with the mandatory update schedule contained in the rules; a requirement that municipalities pass an ordinance designed to assure septic system maintenance; and a requirement that updated WMPs address septic density in a manner that demonstrates compliance with a 2 mg/L (ppm) nitrate planning standard.  The proposed amendments also establish standards for delineating sewer service areas to protect environmentally sensitive areas as well as standards for the review of WQM plan amendments. The latter include standards to address wastewater, water supply, nonpoint source pollution (including controls related to stormwater, riparian zones and steep slopes), and habitat of threatened and endangered species.

The comment period for this proposal was originally scheduled to close on July 20, 2007.  The NJDEP has extended the comment period to Monday, August 20, 2007. 

The NJDEP has also extended the public comment period for the proposed minimum remediation standards for ground water, surface water and soil pursuant to the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-12(a).  Remediation standards for soil are proposed at new N.J.A.C. 7:26D-4, and the NJDEP proposes to recodify with amendments the existing remediation standards for surface water and ground water from the Technical Rules at N.J.A.C. 7:26E-1.13 to the proposed new Remediation Standards rules at N.J.A.C. 7:26D-2 and 3, respectively.  The NJDEP intends to apply these standards to contaminated sites and the new remediation standards, in concert with the amended Technical Rules, will form the minimum standards by which all sites in New Jersey are to be remediated.
The 60-day comment period, which was scheduled to expire on July 6, 2007, is being extended until July 27, 2007. 

If you would like further information on the proposed water quality or site remediation regulations, please feel free to contact Henry-Kent Smith, Esq. or Jane Kozinski, Esq., in our Princeton office or Philip J. Morin III, Esq. in our Newark office.

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At a meeting on June 20, 2007, the State Planning Commission (”SPC”) has voted to amend the Plan Endorsement guidelines of the SPC and Office of Smart Growth (”OSG”).  While Plan Endorsement is a voluntary step by a municipality, it will be essential to gain certain types of state grants, low interest loans, tax incentives and streamlined regulatory review as well as certification by the Council on Affordable Housing (”COAH”).

According to the guidelines, the SPC has “linked state laws, regulations and programs to the State Plan and the Plan Endorsement process so that communities that undertake this comprehensive planning effort receive the coordinated financial and technical support from the State.”  The process includes several detailed tasks, including preparing a “build-out” analysis and adopting a “vision statement” that projects a 20-year vision for the community utilizing tools such as focus groups, surveys and mapping exercises, to ensure that municipal planning and zoning are crafted from the State Plan’s perspective.

The guidelines require that a municipality appoint a “plan endorsement advisory committee” which is separate from the local planning board, to take the lead on initial assessment for ultimate consideration by the governing body.

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In Gallenthin Realty Development, Inc. v. Borough of Paulsboro, the New Jersey Supreme Court held that the New Jersey Constitution’s authorization of redevelopment of “blighted areas” could not be applied in circumstances where the sole basis for redevelopment is that the property is “not fully productive.”  Thus, the Court invalidated the Borough of Paulsboro’s overbroad interpretation of the New Jersey Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-5(e), concluding that this provision of the LRHL applies only to property that has become stagnant because of issues of title, diversity of ownership, or other similar conditions.

The Court held that, under Paulsboro’s interpretation, any property that is operated in a less than optimal manner is arguably “blighted,” and if such a broad definition were adopted, most property in the State would be eligible for redevelopment.  The Court noted that this holding does not preclude the Borough from a future inquiry as to whether the subject property is “in need of redevelopment” based upon any other legitimate grounds.

Furthermore, the Court noted that municipal redevelopment designations are entitled to deference provided that they are supported by “substantial evidence” in the record.  The Court clarified that the substantial evidence standard is not met if a municipality’s “in need of redevelopment” determination is supported only by the net opinion of an expert: “A municipality must establish a record that contains more than a bland recitation of applicable statutory criteria and a declaration that those criteria are met.”

For a more detailed syopsis of the Court’s decision, please see our Real Estate Law Bulletin, authored by Henry Kent-Smith, Esq. and Philip J. Morin III.

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