February 27th, 2012 | Posted by:
By Andy Norin, Esq. and Scott Hovanyetz, Esq.
On January 17, 2012, Governor Christie signed into law Senate Bill No. 3156 (S3156), which extends the effective period of existing sewer service areas. This should provide some relief to developers concerned about the possible withdrawal of sewer service areas in places where wastewater management planning agencies have failed to comply with the deadline to submit wastewater management plans (WMPs) to the State Department of Environmental Protection (DEP). The bill also allows for site specific amendments and revisions to WMPs and Water Quality Management Plans pending DEP approval of new WMPs.
Wastewater Management Plans govern where new sanitary sewer lines can be built. For a sewer line to be extended to a particular property, the property must be included within the sewer service area in the WMP. Properties that fall outside the sewer service area can only be served by septic systems. » Read the rest of this entry «
December 9th, 2011 | Posted by:
By Michael Smith, Esq., LEEP, AP.
On November 28, 2011, the New Jersey Legislature introduced A-4367 — proposed legislation standing to lengthen the protection of the Permit Extension Act of 2008 (the “PEA”), for an additional 3 years (i.e.,until at least December 31, 2015, after which the running of the approval periods would resume for up to 6 months, until June 30, 2016).
By way of background, the Permit Extension Act automatically suspended the expiration of many (but not all) state, county and local permits and approvals, for an “extension period” intially lasting from January 1, 2007 through July 1, 2010. However, by a legislative amendment, the duration of that “extension period” was extended until December 31, 2012, after which, under current law, the running of the approval periods will resume for up to 6 months, until June 30, 2013.
With the introduction of A-4367, the Legislature is now proposing to extend (again) the duration of this so-called extension period until December 31, 2015. A-4367 stands to benefit all approvals that were extended by the Permit Extension Act. This proposal does not, conversely, stand to limit the scope of protection provided under the Permit Extension Act. » Read the rest of this entry «
October 31st, 2011 | Posted by:
By Mark Maser, Esq.
With an apparent indifference to one of the worst housing markets in recent decades, the Occupational Safety and Health Administration (“OSHA”) recently breathed new life into an effectively dormant rule that undoubtedly has the potential to increase costs and slow production rates for the already struggling residential construction industry. Specifically, on December 22, 2010 – less than a week after the U.S. Census Bureau and the Department of Housing and Urban Development jointly announced that privately-owned housing starts in November 2010 were 5.8 percent below the November 2009 rate — OSHA issued a new directive, Fall Protection in Residential Construction (STD 03-11-002), that rescinded the agency’s Interim Fall Protection Compliance Guidelines for Residential Construction (STD 03-00-001) (hereinafter “Interim Guidelines”). See 75 F.R. 80315 (Dec. 22, 2010).
» Read the rest of this entry «
June 30th, 2011 | Posted by:
On June 29, 2011, Governor Christie issued Reorganization Plan No. 001-2011, that would, if not rejected within 60 days by the Legislature, abolish the Council on Affordable Housing (“COAH”) and transfer all responsibilities to the Department of Community Affairs (“Department”). The purpose of the plan “is to reduce the unnecessary complexity of affordable housing administration in New Jersey, lower the administrative costs associated with the present regulatory process, and streamline the development of new housing projects.” The plan transfers all functions, powers and duties to the Commissioner of the Department. » Read the rest of this entry «
October 8th, 2010 | Posted by:
Today, the Appellate Division issued a decision invalidating the Council of Affordable Housing’s growth share methodology, commonly referred to as the third round rules. The Court provided the following conclusion:
In summary, we invalidate the parts of the revised third round rules that use a growth share methodology for determining the prospective need for affordable housing. We also conclude 71 A-5382-07T3 that the adoption of valid third round rules should not be further delayed by allowing COAH to adopt another methodology for determining prospective need that relies upon a growth share approach. Accordingly, we remand to COAH to adopt new third round rules that use a methodology for determining prospective need similar to the methodologies used in the first and second rounds. This determination should be made on the basis of the most up-to-date available data. The remand shall be completed within five months.
We also invalidate N.J.A.C. 5:97-3.2(a)(4)(iv), which authorizes a municipality to obtain substantive certification of a compliance plan that proposes to construct municipally-funded affordable housing without any specifics regarding the location of the site or source of funding; those parts of the third round rules that fail to provide sufficient incentives for the construction of inclusionary developments; N.J.A.C. 5:97-3.5, which governs rental bonuses for prior round obligations; and N.J.A.C. 5:97-3.18, which authorizes compliance bonuses for affordable housing units approved during the period from December 20, 2004 to June 2, 2008. Consequently, COAH must either eliminate or modify those parts of the third round rules in conformity with this opinion.
September 20th, 2010 | Posted by:
As of July 1, 2010, the 2.5% fee on non-residential development is once again in effect. This 2.5 % fee was originally applied in 2008 with the enactment of the Statewide Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1-8.7) and was later suspended as part of the New Jersey Stimulus Act of 2009. With the introduction of Senate Bill S-1, it was anticipated that the 2.5% commercial fee would be eliminated or removed from the affordable housing formula. S-1 passed the Senate in June, 2010 but has been held up by the House for further discussion. As we work through the affordable housing mess, developers and municipalities should be cognizant that the 2.5% non-residential development fee is currently in effect. This could and should change soon but as of July 1, 2010, the fee is no longer suspended. Stay tuned as these issues will be further reviewed and discussed this fall.
July 28th, 2010 | Posted by:
By Joseph J. Whitney, Esq.
On January 16, 2010, the New Jersey legislature adopted a bundle of laws to promote renewable energy development in New Jersey. Among the laws adopted was an amendment to the Agricultural Retention and Development Act (the “Act”) to permit the installation and operation of biomass, solar or wind energy generation facilities on preserved farmland. A preserved farmland is a farm in which the landowner has conveyed a development easement to the State Agricultural Development Committee (“SADC”) or other governmental instrumentality, such as a county, or to a private not-for-profit entity, such as a land trust. By conveying a development easement to the SADC or such other entity, the landowner covenants that the preserved farm will only be used for agricultural purposes. This restriction runs with the land and is binding on all future owners of the property. » Read the rest of this entry «
May 7th, 2010 | Posted by:
If adopted, a bill before the New Jersey Senate (S-1) will abolish COAH and reform the Fair Housing Act. The bill stands at second reading and can be voted upon at the next voting session in May 2010. If it is not amended, the bill will change the entire landscape of how affordable housing requirements are calculated and applied. With regard to nonresidential development, it will essentially eliminate affordable housing requirements. Here is the story: » Read the rest of this entry «
May 6th, 2010 | Posted by:
By Michael A. Smith, Esq. LEED AP
On April 22, 2010, Governor Christie signed into law S-921 – new legislation designed to facilitate solar panel development and, more broadly, to fortify New Jersey’s position as a green energy leader.
Under this new legislation, S-921, solar panels are now exempt from zoning limitations on impervious cover – a planning term for hard surfaces such as buildings and driveways, that prevent water from absorbing into the ground. On solar panels, municipalities have been contradictory in their impervious cover requirements, with some treating solar panels as impervious. S-921 addresses this inconsistency – solar panels cannot be restricted through impervious coverage limitations. Note that the base or foundation of a solar panel may still be regulated as impervious cover. » Read the rest of this entry «
May 3rd, 2010 | Posted by:
By Glenn S. Pantel and Michael A. Smith
On March 24, 2010, the Commissioner of the New Jersey Department of Environmental Protection issued Administrative Order No. 2010-03 – a measure that extends the deadline for wastewater management planning entities to submit revised wastewater management plans (WMPs), until April 7, 2011. This administrative order also provides property owners with new rights in connection with NJDEP’s wastewater management planning process.
WMPs are legally binding documents that govern where new sanitary sewer lines can be built. For a sewer line to be extended into a property, it must be included within the sewer service area (SSA) in the area wide WMP. Properties that fall outside the SSA are generally required to be served by septic systems. » Read the rest of this entry «
March 18th, 2010 | Posted by:
The New Jersey Senate and Assembly recently passed a bill (S-58: A-437) that overrides the “time of decision rule,” which has governed decision making under the Municipal Land Use Law for decades.
Under current law, a planning board or zoning board of adjustment applies the law in effect at the time it renders its decision, rather than the law in effect when the issues were initially presented. A municipal governing body can amend its zoning ordinance after an application for development has been filed with a land use board, even in direct response to the application, and the land use board decides the matter based upon the amended ordinance.
Under the new bill, a land use board would be required to make its decision on an application for development in accordance with the development regulations (zoning ordinance, subdivision ordinance, site plan ordinance, official map ordinance or other municipal regulation of the use and development of land) that are in effect on the date the application for development is submitted. The bill also exempts an application for development from changes made to ordinances other than development regulations, except for those relating to health and public safety, that are adopted after the application for development is submitted. » Read the rest of this entry «
March 12th, 2010 | Posted by:
In June, I reported that the New Jersey Legislature proposed a bill (S1202/A3062) that would add the definition of an “inherently beneficial use” to the Municipal Land Use Law and expand the inherently beneficial use status to include wind, solar and photovoltaic facilities. The legislation has been adopted and the following definitions now apply:
“Inherently beneficial use” means a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such a use includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure.
“Wind, solar or photovoltaic energy facility or structure” means a facility or structure for the purpose of supplying electrical energy produced from wind, solar, or photovoltaic technologies, whether such facility or structure is a principal use, a part of the principal use, or an accessory use or structure.
For a copy of the Pamphlet Law click here.
For a discussion of the inherently beneficial use variance standard click here.