NJ Legislature Introduces Proposal to Lengthen the Protection of the Permit Extension Act of 2008

December 9th, 2011 | Posted by: Christopher DeGrezia 0| comments:

By Michael Smith, Esq., LEEP, AP.DSC_0142

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 «

Appellate Division Ruling Reinforces Key Provisions of NJDEP’s Water Quality Management Planning Rules

November 8th, 2011 | Posted by: Christopher DeGrezia 0| comments:

DSC_0133By Michael A. Smith

On June 29, 2011, the Appellate Division of the New Jersey Superior Court released its opinion In the Matter of the Adoption of N.J.A.C. 7:15-5.24(b) and N.J.A.C. 7:15-5.25(e), upholding certain key provisions of the New Jersey Department of Environmental Protection’s Water Quality Management Planning Rules (WQMP Rules), N.J.A.C. 7:15 et seq. (namely, a provision that prohibits the extension of sanitary sewer lines in environmentally sensitive areas, and a provision that sets a maximum nitrate level for septic system discharge).  In so holding, the court rejected a developer’s argument that the WQMP Rules constitute unauthorized land use regulation, in excess of NJDEP’s authority. 

Among other things, this ruling provides “teeth” to NJDEP’s pending sewer service area revision process, i.e., NJDEP’s efforts to prohibit the building of new sanitary sewer lines based on the presence of environmentally sensitive features (including threatened and endangered species habitat, Natural Heritage Priority Sites, Category One riparian zones and wetlands).   » Read the rest of this entry «

RE-GIFTED: The Residential Construction Fall Protection Standard Will Once Again Serve As The Measure Of Compliance Now That OSHA Has Rescinded Its Interim Fall Protection Compliance Guidelines

October 31st, 2011 | Posted by: Christopher DeGrezia 0| comments:

DSC_0345By 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 «

Sixty days will decide the fate of the Council on Affordable Housing

June 30th, 2011 | Posted by: Christopher DeGrezia 0| comments:

COAHOn 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 «

Appellate Division Invalidates COAH’s Third Round Rules (Growth Share)

October 8th, 2010 | Posted by: Christopher DeGrezia 0| comments:

COAHToday, 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.

Non-Residential Development Fee of 2.5% is Reinstated

September 20th, 2010 | Posted by: Christopher DeGrezia 1| comments:

Affordable HousingAs 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.

Legislation Permits Renewable Energy Facilities on Preserved Farmland

July 28th, 2010 | Posted by: Christopher DeGrezia 1| comments:

Agricultural PictureBy 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 «

A Glimpse into the New Jersey Department of Environmental Protection

June 24th, 2010 | Posted by: Christopher DeGrezia 0| comments:

2009-02-17 Transfer 426By Ellen Radow Sadat, Esq.

At a well-attended New Jersey Chamber of Commerce Breakfast in late May, Deputy Commissioner Irene Kropp described the evolving organizational responsibilities of three key managers at the New Jersey Department of Environmental Protection (NJDEP), Chief of Staff Magdalena Padilla, Chief Counselor Ray Cantor and Irene Kropp. These responsibilities are evolving as Commissioner Bob Martin develops the Department’s Vision Statement, which should be posted on the NJDEP website soon.  Shortly thereafter, the Department will publish its “Transformation Agenda,” which will be designed to implement the Vision Statement and presumably change the way NJDEP does business.

In the meantime, the Department is actively acknowledging that it should be a  responsive and transparent agency.  There are three key managers who will try to accomplish this goal while attending to the following responsibilities. » Read the rest of this entry «

Pending Legislation Abolishes Council on Affordable Housing and Nonresidential Development fees

May 7th, 2010 | Posted by: Christopher DeGrezia 0| comments:

COAHIf 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 «

New Legislation Promotes Solar Panel Development

May 6th, 2010 | Posted by: Christopher DeGrezia 1| comments:

Solar EnergyBy 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.

S-921

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 «

NJDEP Administrative Order Preserves Sewer Service Areas Until April 7, 2011, and Addresses the Sewer Service Area Revision Process

May 3rd, 2010 | Posted by: Christopher DeGrezia 0| comments:

2009-02-17 Transfer 426By 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.

Background

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 «

Time’s Up for Time of Decision Rule

March 18th, 2010 | Posted by: Christopher DeGrezia 3| comments:

Time of Decision RuleThe 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 «

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