Development Rights Restricted by New Sewer Service Area Maps, But Help May Be On It’s Way

August 10th, 2009 | Posted by: Christopher DeGrezia3| comments:

Sewer Service Area By Ellen Radow Sadat, Esq.

If you own real property in New Jersey that is not fully developed, Wastewater Management Plans (WMPs) currently being prepared this Fall by county governments (or NJDEP in the case of plans for Bergen, Burlington, Passaic, Union and Warren counties) may adversely impact the value of your property and its development potential.  WMPs establish Sewer Service Areas which identify the properties that will be served by wastewater treatment systems.  Properties such as corporate campuses, educational campuses, industrial parks, golf courses, residential developments, or vacant land that are currently within a Sewer Service Area could be re-designated to a non-Sewer Service Area, drastically devaluing the property, potentially impacting financing, and effectively eliminating future development options.

Once finalized, new Sewer Service Area maps, developed as part of these WMPs, will determine what property will be able to connect to a sewage treatment plant. These new maps are expected to be substantially different from the current maps, removing many undeveloped or partially developed properties from current designations as being within Sewer Service Areas.  In addition, many of the map changes directly conflict with municipal zoning ordinances, master plans and even approved General Development Plans.  And as you know, it does not matter how the property is zoned; if sewer service is unavailable the development potential of the property is severely limited.
The reason property is “at-risk” is that NJDEP has required each county in New Jersey to review its Sewer Service Areas and exclude “environmentally sensitive areas” where threatened or endangered species may exist, where buffer zones must be met to protect wetlands or prevent flooding, or even where there are forests.  If property falls outside of a Sewer Service Area, it can only be developed by means of septic systems, if that option is even available.  But, having to rely upon a septic system severely limits the development potential of a property.
If you own undeveloped or partially developed real property in New Jersey, you should immediately secure a copy of the new draft county or NJDEP WMP and the draft Sewer Service Area Map, if available.  If your property falls, in whole or in part, outside a Sewer Service Area or has been found to include threatened or endangered species’ habitats, buffers or forested areas, you will want to check the accuracy of the document and bring any mistakes, incorrect information, or any lack of substantiation, to the immediate attention of the municipality, county, and/or NJDEP. 

It will be far easier to have the WMP documents corrected before publication for comment in the New Jersey Register or local papers this Fall than afterwards. Discussing your situation now with your municipality, the appropriate county agency, or the NJDEP may be an investment well worth your time and effort.

 The good news is that legislation was introduced on June 22, 2009 by Senators Paul Sarlo (D) and Steven Oroho (R), to not only extend the effective date of current WMPs until April 7, 2011 (S-2985), but to reform the process and the criteria that must be considered when developing a WMP.  Nonetheless, while this extension and the reforms may be enacted, you can not assume this will be the case and you must act accordingly. 

S-2985 corrects two legal deficiencies in the WMP process. First, notice must be given to the taxpayer of record if a property is proposed for removal from a Sewer Service Area.  The taxpayer will be given a 30 day comment period and the right to request an adjudicatory hearing to contest the inclusion in a WMP.  Second, there is a de facto presumption that certain properties can not be excluded from an Sewer Service Area.  These areas include parcels which have preliminary or final site plan approval, preliminary or final subdivision approval, a municipal building or construction permit, a general development plan approval, a treatment works approval, or a New Jersey Discharge Elimination System permit.  

In addition, the WMP planning agencies must consider the following:

  •  The zoning of the property
  • The existing development and land use surrounding the vicinity of the property
  • The existing infrastructure and availability of utilities
  • Any affordable housing obligations
  • Redevelopment opportunities and objectives
  • The designation of the property pursuant to the State Development and Redevelopment Plan; and
  • Any prior or existing development or partial development on or associated with the property

Further, in recognition of the need for approvals in the interim, the NJDEP would be required to act upon site specific or project specific amendments to existing WMPs within 90 days of a complete application.

Finally, the bill creates an 11 member Wastewater Planning Oversight Board, whose role would be to evaluate, study and review the accuracy, validity, feasibility and practicability of sewer service areas mapping, data models or other information that forms the basis for a WMP and to make recommendations to the WMP planning agencies. Clearly, this is an effort to bring more transparency to the NJDEP’s use of such tools. 

 No doubt there will be opposition and amendments to this bill. We will follow its progress and you may want to do the same.  Click here for a copy of Senate Bill 2985.

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3 Responses to “Development Rights Restricted by New Sewer Service Area Maps, But Help May Be On It’s Way”

  • Garry Schecher says:

    WOW its about time that someone is paying attention to what is going on in NJ. NJDEP is out of control. I am currently in the middle of this with DEP and they have denied an OPRA request to review a file on this issue. They have put themselves above the law. Put me on the list for a class action suit and lets hope that they can afford to pay the damages.

  • The New Jersey Department of Environmental Protection has taken the position that the proposed sewer service area maps are “interagency deliberative documents” and will therefore not produce them under an Open Public Records request. However, you may have better success contacting the particular county or municipality involved. For example, Mercer County and Middlesex County are willing to provide copies of sewer service area maps for properties in each respective county. You need to check, county by county. Eventually, the mapping information will be made public when published in the New Jersey Register, during the formal adoption process. But in my opinion, now is the time to document your arguments supporting your position that your property should not be removed from the Sewer Service Area. Focus on the NJDEP Sewer Service regulations, and, particularly, document the absence of environmentally sensitive areas on your property. Good luck.

  • Donald says:

    Thanks very much for that wonderful entry.

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