S921

An Act concerning solar panels and impervious surfaces, and amending P.L.2004, c.120, P.L.1968, c.285, P.L.1981, c.32, and P.L.2009, c.82, and supplementing P.L.1975, c.291 (C.40:55D-1 et seq.).

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 3 of P.L.2004, c.120 (C.13:20-3) is amended to read as follows:

3. As used in this act:

"Agricultural or horticultural development" means construction for the purposes of supporting common farmsite activities, including but not limited to: the production, harvesting, storage, grading, packaging, processing, and the wholesale and retail marketing of crops, plants, animals, and other related commodities and the use and application of techniques and methods of soil preparation and management, fertilization, weed, disease, and pest control, disposal of farm waste, irrigation, drainage and water management, and grazing;

"Agricultural impervious cover" means agricultural or horticultural buildings, structures, or facilities with or without flooring, residential buildings, and paved areas, but shall not mean temporary coverings or solar panels ;

"Agricultural or horticultural use" means the use of land for common farmsite activities, including but not limited to: the production, harvesting, storage, grading, packaging, processing, and the wholesale and retail marketing of crops, plants, animals, and other related commodities and the use and application of techniques and methods of soil preparation and management, fertilization, weed, disease, and pest control, disposal of farm waste, irrigation, drainage and water management, and grazing;

"Application for development" means the application form and all accompanying documents required for approval of a subdivision plat, site plan, planned development, conditional use, zoning variance, or direction of the issuance of a permit pursuant to the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.) or R.S.40:27-1 et seq., for any use, development, or construction;

"Capital improvement" means any facility for the provision of public services with a life expectancy of three or more years, owned and operated by or on behalf of the State or a political subdivision thereof;

"Construction beyond site preparation" means having completed the foundation for a building or structure, and does not include the clearing, cutting, or removing of vegetation, bringing construction materials to the site, or site grading or other earth work associated with preparing a site for construction;

"Construction materials facility" means any facility or land upon which the activities of production of ready mix concrete, bituminous concrete, or class B recycling occurs;

"Council" means the Highlands Water Protection and Planning Council established by section 4 of this act;

"Department" means the Department of Environmental Protection;

"Development" means the same as that term is defined in section 3.1 of P.L.1975, c.291 (C.40:55D-4);

"Development regulation" means the same as that term is defined in section 3.1 of P.L.1975, c.291 (C.40:55D-4);

"Disturbance" means the placement of impervious surface, the exposure or movement of soil or bedrock, or the clearing, cutting, or removing of vegetation;

"Environmental land use or water permit" means a permit, approval, or other authorization issued by the Department of Environmental Protection pursuant to the "Freshwater Wetlands Protection Act," P.L.1987, c.156 (C.13:9B-1 et seq.), the "Water Supply Management Act," P.L.1981, c.262 (C.58:1A-1 et seq.), the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.), "The Realty Improvement Sewerage and Facilities Act (1954)," P.L.1954, c.199 (C.58:11-23 et seq.), the "Water Quality Planning Act," P.L.1977, c.75 (C.58:11A-1 et seq.), the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et seq.), or the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.);

"Facility expansion" means the expansion of the capacity of an existing capital improvement in order that the improvement may serve new development;

"Farm conservation plan" means a site specific plan that prescribes needed land treatment and related conservation and natural resource management measures, including forest management practices, that are determined to be practical and reasonable for the conservation, protection, and development of natural resources, the maintenance and enhancement of agricultural or horticultural productivity, and the control and prevention of nonpoint source pollution;

"Farm management unit" means a parcel or parcels of land, whether contiguous or noncontiguous, together with agricultural or horticultural buildings, structures and facilities, producing agricultural or horticultural products, and operated as a single enterprise;

"Highlands open waters" means all springs, streams including intermittent streams, wetlands, and bodies of surface water, whether natural or artificial, located wholly or partially within the boundaries of the Highlands Region, but shall not mean swimming pools;

"Highlands Region" means that region so designated by subsection a. of section 7 of this act;

"Immediate family member" means spouse, child, parent, sibling, aunt, uncle, niece, nephew, first cousin, grandparent, grandchild, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepparent, stepchild, stepbrother, stepsister, half brother, or half sister, whether the individual is related by blood, marriage, or adoption;

"Impact fee" means cash or in-kind payments required to be paid by a developer as a condition for approval of a major subdivision or major site plan for the developer's proportional share of the cost of providing new or expanded reasonable and necessary public improvements located outside the property limits of the subdivision or development but reasonably related to the subdivision or development based upon the need for the improvement created by, and the benefits conferred upon, the subdivision or development;

"Impervious surface" means any structure, surface, or improvement that reduces or prevents absorption of stormwater into land, and includes porous paving, paver blocks, gravel, crushed stone, decks, patios, elevated structures, and other similar structures, surfaces, or improvements , and excludes solar panels ;

"Individual unit of development" means a dwelling unit in the case of a residential development, a square foot in the case of a non-residential development, or any other standard employed by a municipality for different categories of development as a basis upon which to establish a service unit;

"Local government unit" means a municipality, county, or other political subdivision of the State, or any agency, board, commission, utilities authority or other authority, or other entity thereof;

"Major Highlands development" means, except as otherwise provided pursuant to subsection a. of section 30 of this act, (1) any non-residential development in the preservation area; (2) any residential development in the preservation area that requires an environmental land use or water permit or that results in the ultimate disturbance of one acre or more of land or a cumulative increase in impervious surface by one-quarter acre or more; (3) any activity undertaken or engaged in the preservation area that is not a development but results in the ultimate disturbance of one-quarter acre or more of forested area or that results in a cumulative increase in impervious surface by one-quarter acre or more on a lot; or (4) any capital or other project of a State entity or local government unit in the preservation area that requires an environmental land use or water permit or that results in the ultimate disturbance of one acre or more of land or a cumulative increase in impervious surface by one-quarter acre or more. Major Highlands development shall not mean an agricultural or horticultural development or agricultural or horticultural use in the preservation area;

"Mine" means any mine, whether on the surface or underground, and any mining plant, material, equipment, or explosives on the surface or underground, which may contribute to the mining or handling of ore or other metalliferous or non-metalliferous products. The term "mine" shall also include a quarry, sand pit, gravel pit, clay pit, or shale pit;

"Mine site" means the land upon which a mine, whether active or inactive, is located, for which the Commissioner of Labor and Workforce Development has granted a certificate of registration pursuant to section 4 of P.L.1954, c.197 (C.34:6-98.4) and the boundary of which includes all contiguous parcels, except as provided below, of property under common ownership or management, whether located in one or more municipalities, as such parcels are reflected by lot and block numbers or metes and bounds, including any mining plant, material, or equipment. "Contiguous parcels" as used in this definition of "mine site" shall not include parcels for which mining or quarrying is not a permitted use or for which mining or quarrying is not permitted as a prior nonconforming use under the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.);

"Office of Smart Growth" means the Office of State Planning established pursuant to section 6 of P.L.1985, c.398 (C.52:18A-201);

"Planning area" means that portion of the Highlands Region not included within the preservation area;

"Preservation area" means that portion of the Highlands Region so designated by subsection b. of section 7 of this act;

"Public utility" means the same as that term is defined in R.S.48:2-13;

"Recreation and conservation purposes" means the same as that term is defined in section 3 of P.L.1999, c.152 (C.13:8C-3);

"Regional master plan" means the Highlands regional master plan or any revision thereof adopted by the council pursuant to section 8 of this act;

"Resource management systems plan" means a site specific conservation system plan that (1) prescribes needed land treatment and related conservation and natural resource management measures, including forest management practices, for the conservation, protection, and development of natural resources, the maintenance and enhancement of agricultural or horticultural productivity, and the control and prevention of nonpoint source pollution, and (2) establishes criteria for resources sustainability of soil, water, air, plants, and animals;

"Service area" means that area to be served by the capital improvement or facility expansion as designated in the capital improvement program adopted by a municipality under section 20 of P.L.1975, c.291 (C.40:55D-29);

"Service unit" means a standardized measure of consumption, use, generation or discharge attributable to an individual unit of development calculated in accordance with generally accepted engineering or planning standards for a particular category of capital improvements or facility expansions;

"Soil conservation district" means the same as that term is defined in R.S. 4:24-2;

“Solar panel” means a panel or plate, or a canopy or array thereof, that collects or captures solar energy or radiation to provide energy or power, and includes nocturnal heat radiation, flat plate or focusing solar collectors, or photovoltaic solar cells and excludes the base or foundation of the panel, plate, canopy, or array;

"State Development and Redevelopment Plan" means the State Development and Redevelopment Plan adopted pursuant to P.L.1985, c.398 (C.52:18A-196 et al.);

"State entity" means any State department, agency, board, commission, or other entity, district water supply commission, independent State authority or commission, or bi-state entity;

"State Soil Conservation Committee" means the State Soil Conservation Committee in the Department of Agriculture established pursuant to R.S. 4:24-3;

"Temporary coverings" means permeable, woven and non-woven geotextile fabrics that allow for water infiltration or impermeable materials that are in contact with the soil and are used for no more than two consecutive years; and

"Waters of the Highlands" means all springs, streams including intermittent streams, and bodies of surface or ground water, whether natural or artificial, located wholly or partially within the boundaries of the Highlands Region, but shall not mean swimming pools.

(cf: P.L.2004, c.120, s.3)

2. Section 8 of P.L.1968, c.285 (C.40:27-6.6) is amended to read as follows:

8. The governing body of any county having a county planning board may provide for the review of site plans for land development along county roads or affecting county drainage facilities as provided in subsection e. of this section and for the approval of such development as hereinafter set forth and limited for the purpose of assuring a safe and efficient county road system. Such review and approval shall be in conformance with procedures and standards adopted by resolution or ordinance as appropriate of the governing body. Notice of the public hearing on a proposed resolution or ordinance of the governing body establishing procedures and standards to govern the review and regulation of land development along county roads or affecting county drainage facilities as provided in subsection e. of this section, and a copy of such resolution or ordinance, shall be given by delivery or by certified mail to the municipal clerk, secretary of the planning board and secretary of the board of adjustment of each municipality in the county at least 10 days prior to such hearing. These procedures and standards shall be limited to:

a. The submission of a site plan, prior to the issuance of a municipal building permit, drawn in accordance with standards in the resolution or ordinance for any proposed land development, excluding single family residential development but including proposed commercial, industrial, multifamily structures containing five or more units, or any other land development requiring off-street parking area or producing surface runoff in excess of standards set forth in the site plan review and approval resolution or ordinance of the governing body.

b. The requirement of dedication of additional right-of-way in accordance with the county master plan adopted by the county planning board or an official county map adopted by the governing body. Where by reason of special or unusual conditions said total additional right-of-way is to be secured from just one side of an existing road, only one-half of the additional right-of-way may be required to be dedicated.

c. The requirement of physical improvements subject to recommendations of the county engineer relating to the safety and convenience of the traveling public, including drainage facilities, or other highway and traffic design features as may be deemed necessary on such county road or roads in accordance with the engineering and planning standards established in the site plan review and approval resolution or ordinance of the governing body.

d. The requirement of performance and payment guarantees and procedures for the release of same, maintenance bonds of not more than 2 years' duration from the date of acceptance of improvements, cash contributions, and agreements specifying minimum standards of construction for required improvements. Procedures for, and limitations on the requirement of such guarantees or cash contributions shall be governed by the provisions of this act.

e. The requirement of adequate drainage facilities and easements when, as determined by the county engineer in accordance with county-wide standards, the proposed site plan will cause storm water to drain either directly or indirectly to a county road or through any drainage-way, structure, pipe, culvert or facility for which the county is responsible for the construction, maintenance or proper functioning.

Site plans for land development not along a county road that include less than 1 acre of impervious surfaces are exempt from county site plan review.

f. A site plan for land development that includes solar panels shall not designate or deem, or calculate, solar panels as an impervious surface or impervious cover, for the purposes of any county site plan review.

As used in this subsection, “solar panel” means a panel or plate, or a canopy or array thereof, that collects or captures solar energy or radiation to provide energy or power, and includes nocturnal heat radiation, flat plate or focusing solar collectors, and photovoltaic solar cells, and excludes the base or foundation of a panel, plate, canopy, or array.

(cf: P.L.1981, c.50, s.1)

3. Section 3 of P.L.1981, c.32 (C.40:55D-95) is amended to read as follows:

3. A storm water management plan and a storm water management ordinance or ordinances shall conform to all relevant federal and State statutes, rules and regulations concerning storm water management or flood control and shall be designed: a. to reduce flood damage, including damage to life and property; b. to minimize storm water runoff from any new land development where such runoff will increase flood damage; c. to reduce soil erosion from any development or construction project; d. to assure the adequacy of existing and proposed culverts and bridges; e. to induce water recharge into the ground where practical; f. to prevent, to the greatest extent feasible, an increase in nonpoint pollution; g. to maintain the integrity of stream channels for their biological functions, as well as for drainage; and h. to minimize public safety hazards at any storm water detention facilities constructed as part of a subdivision or pursuant to a site plan. A storm water management plan shall also include such structural changes and such additional nonstructural measures and practices as may be necessary to manage storm water. A storm water management plan and a storm water management ordinance or ordinances shall permit solar panels to be constructed and installed on a site. Solar panels shall not be designated as, or determined to be, an impervious surface or impervious cover.

For purposes of [this act] P.L.1981, c.32 (C.40:55D-93 et seq.):

["nonpoint pollution"] “Nonpoint pollution” means pollution from any source other than from any discernible, confined and discrete conveyance, and shall include, but not be limited to, pollutants from agricultural, silvicultural, mining, construction, subsurface disposal and urban runoff sources.

“Solar panel” means a panel or plate, or a canopy or array thereof, that collects or captures solar energy or radiation to provide energy or power, and includes nocturnal heat radiation, flat plate or focusing solar collectors, and photovoltaic solar cells, and excludes the base or foundation of a panel, plate, canopy, or array.

(cf: P.L.1991, c.194, s.1)

4. Section 4 of P.L.2009, c.82 (C.45:22A-46.6) is amended to read as follows:

4. a. A developer seeking to change an age-restricted development approval to a converted development approval shall file an application with the approving board seeking an amendment to the previously granted approvals requesting the authority to develop the land as a converted development. At such time, the developer shall also file a copy of said notice with the municipal clerk of the municipality in which the development is located and the developer shall provide notice prior to a hearing on the application in the manner prescribed by section 7.1 of P.L.1975, c.291 (C.40:55D-12).

(1) No application for an amended approval seeking the authority to construct a converted development shall be considered a "use variance" or other "'d' variance" application pursuant to subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70). Both planning boards that initially granted approvals for the age-restricted development and zoning boards of adjustment that initially granted approvals for the age-restricted development shall have the legal authority to grant amended approvals for a converted development without the need to seek relief pursuant to subsection d. of section 57 of P.L.1975, c.291 (C.40:55D-70), it being the intent of this act that such converted developments are to be considered permitted uses in the zoning district in which they are located.

b. Applications seeking amended approval for a converted development shall include documentation that all of the following site improvement and infrastructure requirements have been met:

(1) the site meets the Residential Site Improvement Standards parking requirement for the residential land uses in a converted development as established pursuant to N.J.A.C.5:21-4.14 through -4.16;

(2) the recreation improvements and other amenities to be constructed on the site have been revised, as needed, to meet the needs of a converted development;

(3) the water supply system is adequate, as determined pursuant to N.J.A.C.5:21-5.1, to meet the needs of a converted development;

(4) the capacity of the sanitary sewer system is adequate to meet the projected flow requirements of a converted development pursuant to N.J.A.C.7:14A-23.3;

(5) if additional water supply or sewer capacity is needed and the developer is unable to obtain additional supply or capacity, the number of dwelling units in the development has been reduced accordingly;

(6) if additional parking is needed, and the developer is unable to provide the required parking, the number of dwelling units in the development has been reduced accordingly; and

(7) if additional parking is provided and increases the amount of impervious cover , excluding solar panels, by more than one percent, the storm water system calculations and improvements have been revised accordingly. As used in this paragraph, “solar panel” means a panel or plate, or a canopy or array thereof, that collects or captures solar energy or radiation to provide energy or power, and includes nocturnal heat radiation, flat plate or focusing solar collectors, and photovoltaic solar cells, and excludes the base or foundation of a panel, plate, canopy, or array.

c. If the approving board determines that the requirements of P.L.2009, c.82 (C.45:22A-46.3 et seq.) have been satisfied, and the conversion can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance, the application for the conversion shall be approved.

(cf: P.L.2009, c.82, s.4)

5. (New section) An ordinance requiring approval by the planning board of either subdivisions or site plans, or both, shall not include solar panels in any definition, designation, or calculation of impervious surface or impervious cover.

As used in this section, “solar panel” means a panel or plate, or a canopy or array thereof, that collects or captures solar energy or radiation to provide energy or power, and includes nocturnal heat radiation, flat plate or focusing solar collectors, and photovoltaic solar cells, and excludes the base or foundation of a panel, plate, canopy, or array.

6. This act shall take effect immediately.

STATEMENT

This bill would exempt solar panels from being designated as an impervious surface or impervious cover, as it applies to the various laws relating to municipal land use, stormwater management, and the Highlands, including agricultural development therein.

By exempting solar panels from the definition of an impervious surface, the bill would eliminate certain requirements and would change calculations of impervious surfaces as they apply to various development and management plans.

Under the bill, a solar panel is defined as a panel or plate, or a canopy or array thereof, that collects or captures solar energy or radiation to provide energy or power, and includes nocturnal heat radiation, flat plate or focusing solar collectors, and photovoltaic solar cells, and excludes the base or foundation of a panel, plate, canopy, or array.

This bill would amend: (1) P.L.2004, c.120, the “Highlands Water Protection and Planning Act”; (2) P.L.1968, c.285, relating to county site plan reviews; (3) P.L.1981, c.32, relating to storm water management; and (4) P.L.2009, c.82 relating to age-restricted community developments. The bill would additionally supplement the “Municipal Land Use Law,” P.L.1975, c.291, to exclude solar panels from being designated or deemed, or calculated, as impervious surface or impervious cover.