S1364

An Act concerning the Highlands Region and amending P.L.2004, c.120.

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

1. Section 17 of P.L.2004, c.120 (C.13:20-17) is amended to read as follows:

17. a. (1) Subsequent to adoption of the regional master plan, the council may review, within 15 days after any final local government unit approval, [rejection] disapproval, or approval with conditions thereof, any application for development in the preservation area. [Upon determining to exercise that] The council shall conduct such a review at the written request of any person whose application for development in the preservation area has been disapproved or conditionally approved by a local government unit.

Whether exercising its review authority pursuant to this section on its own initiative or at the request of the applicant, the council shall transmit, by certified mail, written notice thereof to the person who submitted the application to the local government unit. The council shall, after public hearing thereon, approve, [reject] disapprove , or approve with conditions any such application or decision within 60 days after transmitting the notice [; provided, however, that an application shall not be rejected or conditionally approved unless the council] .

The council shall disapprove the application if it determines that the development does not conform with the regional master plan, as applicable to the local government unit wherein the development is located, or that the development could result in substantial impairment of the resources of the Highlands Region ; except that the council may grant, by a majority vote of the members of the council present at a meeting of the council for which a quorum has been reached notwithstanding the provisions of subsection f. of section 5 of P.L.2004, c.120 (C.13:20-5) to the contrary, a variance from the regional master plan, or from any development regulations or other regulations adopted by the council or a local government unit in accordance with the regional master plan, (a) for the same purposes and reasons and according to the same criteria as variances are granted pursuant to subsection c. or d. of section 57 of the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-70), or (b) for such other purposes, reasons, and criteria as may be established by the council in rules and regulations adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) provided that the resources of the Highlands Region would not be substantially impaired.

Such approval, [rejection] disapproval , or conditional approval shall be binding upon the person who submitted the application, shall supersede any local government unit decision on any such development, and shall be subject only to judicial review as provided in section 28 of [this act] P.L.2004, c.120 (C.13:20-26). Pending completion of the review by the council of any final local government approval or approval with conditions of an application for development in the preservation area and the issuance of the council's decision thereon, the applicant shall not proceed with the development.

(2) No cause of action may be filed in the Superior Court to contest a local government unit decision on an application for development in the preservation area if the council exercises its review authority pursuant to this section. Any such cause of action filed before the date that the council exercises its review authority pursuant to this section shall be dismissed by the court for lack of jurisdiction. Upon [determination of the council to exercise] the council exercising its review authority pursuant to this section, judicial review of the decision of the local government unit and of the council pursuant to this section shall proceed as provided pursuant to section 28 of [this act] P.L.2004, c.120 .

b. Every person submitting an application for development in the preservation area shall be required to provide a notice of the application to the council in accordance with such procedures therefor as shall be established by the council.

c. (1) Notwithstanding any provision of subsection a. or b. of this section to the contrary, for any municipality or county that has adopted an approved revised master plan, development regulations, or other regulations, as the case may be, including any condition thereto imposed by the council, the provisions and requirements of this section shall apply only to applications for development that provide for the ultimate disturbance of two acres or more of land or a cumulative increase in impervious surface by one acre or more , unless the review is being conducted by the council at the written request of the applicant as provided in paragraph (1) of subsection a. of this section.

(2) The council, however, may provide, pursuant to subsection d. of section 14 of [this act] P.L.2004, c.120 (C.13:20-14) , that the provisions and requirements of this section apply to any application for development within the preservation area in any municipality or county that fails to adopt or enforce an approved revised master plan, development regulations, or other regulations, as the case may be, including any condition thereto imposed by the council.

d. Any member of the public may request the council to consider, at its discretion, reviewing an application for development in the preservation area as provided in this section.

(cf: P.L.2004, c.120, s.17)

2. Section 30 of P.L.2004, c.120 (C.13:20-28) is amended to read as follows:

30. a. The following are exempt from the provisions of this act, the regional master plan, any rules or regulations adopted by the Department of Environmental Protection pursuant to this act, or any amendments to a master plan, development regulations, or other regulations adopted by a local government unit to specifically conform them with the regional master plan:

(1) the construction of a single family dwelling, for an individual's own use or the use of an immediate family member, on a lot owned by the individual on the date of enactment of this act or on a lot for which the individual has on or before May 17, 2004 entered into a binding contract of sale to purchase that lot;

(2) the construction of a single family dwelling on a lot in existence on the date of enactment of this act, provided that the construction does not result 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) a major Highlands development that received on or before March 29, 2004:

(a) one of the following approvals pursuant to the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.):

(i) preliminary or final site plan approval;

(ii) final municipal building or construction permit;

(iii) minor subdivision approval where no subsequent site plan approval is required;

(iv) final subdivision approval where no subsequent site plan approval is required; or

(v) preliminary subdivision approval where no subsequent site plan approval is required; and

(b) at least one of the following permits from the Department of Environmental Protection, if applicable to the proposed major Highlands development:

(i) a permit or certification pursuant to the "Water Supply Management Act," P.L.1981, c.262 (C.58:1A-1 et seq.);

(ii) a water extension permit or other approval or authorization pursuant to the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et seq.);

(iii) a certification or other approval or authorization issued pursuant to the "The Realty Improvement Sewerage and Facilities Act (1954)," P.L.1954, c.199 (C.58:11-23 et seq.); or

(iv) a treatment works approval pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.); or

(c) one of the following permits from the Department of Environmental Protection, if applicable to the proposed major Highlands development, and if the proposed major Highlands development does not require one of the permits listed in subsubparagraphs (i) through (iv) of subparagraph (b) of this paragraph:

(i) a permit or other approval or authorization issued pursuant to the "Freshwater Wetlands Protection Act," P.L.1987, c.156 (C.13:9B-1 et seq.); or

(ii) a permit or other approval or authorization issued pursuant to the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.).

The exemption provided in this paragraph shall apply only to the land area and the scope of the major Highlands development addressed by the qualifying approvals pursuant to subparagraphs (a) and (b), or (c) if applicable, of this paragraph, shall expire if any of those qualifying approvals expire, and shall expire if construction beyond site preparation does not commence within three years after the date of enactment of this act;

(4) the reconstruction of any building or structure for any reason within 125% of the footprint of the lawfully existing impervious surfaces on the site, provided that the reconstruction does not increase the lawfully existing impervious surface by one-quarter acre or more. This exemption shall not apply to the reconstruction of any agricultural or horticultural building or structure for a non-agricultural or non-horticultural use;

(5) any improvement to a single family dwelling in existence on the date of enactment of this act, including but not limited to an addition, garage, shed, driveway, porch, deck, patio, swimming pool, or septic system;

(6) any improvement, for non-residential purposes, to a place of worship owned by a nonprofit entity, society or association, or association organized primarily for religious purposes, or a public or private school, or a hospital, in existence on the date of enactment of this act, including but not limited to new structures, an addition to an existing building or structure, a site improvement, or a sanitary facility;

(7) an activity conducted in accordance with an approved woodland management plan pursuant to section 3 of P.L.1964, c.48 (C.54:4-23.3) or a forest stewardship plan approved pursuant to section 3 of P.L.2009, c.256 (C.13:1L-31), or the normal harvesting of forest products in accordance with a forest management plan or forest stewardship plan approved by the State Forester;

(8) the construction or extension of trails with non-impervious surfaces on publicly owned lands or on privately owned lands where a conservation or recreational use easement has been established;

(9) the routine maintenance and operations, rehabilitation, preservation, reconstruction, or repair of transportation or infrastructure systems by a State entity or local government unit, provided that the activity is consistent with the goals and purposes of this act and does not result in the construction of any new through-capacity travel lanes;

(10) the construction of transportation safety projects and bicycle and pedestrian facilities by a State entity or local government unit, provided that the activity does not result in the construction of any new through-capacity travel lanes;

(11) the routine maintenance and operations, rehabilitation, preservation, reconstruction, repair, or upgrade of public utility lines, rights of way, or systems, by a public utility, provided that the activity is consistent with the goals and purposes of this act;

(12) the reactivation of rail lines and rail beds existing on the date of enactment of this act;

(13) the construction of a public infrastructure project approved by public referendum prior to January 1, 2005 or a capital project approved by public referendum prior to January 1, 2005;

(14) the mining, quarrying, or production of ready mix concrete, bituminous concrete, or Class B recycling materials occurring or which are permitted to occur on any mine, mine site, or construction materials facility existing on June 7, 2004;

(15) the remediation of any contaminated site pursuant to P.L.1993, c.139 (C.58:10B-1 et seq.);

(16) any lands of a federal military installation existing on the date of enactment of this act that lie within the Highlands Region; [and]

(17) a major Highlands development located within an area designated as Planning Area 1 (Metropolitan), or Planning Area 2 (Suburban), as designated pursuant to P.L.1985, c.398 (C.52:18A-196 et seq.) as of March 29, 2004, that on or before March 29, 2004 has been the subject of a settlement agreement and stipulation of dismissal filed in the Superior Court, or a builder's remedy issued by the Superior Court, to satisfy the constitutional requirement to provide for the fulfillment of the fair share obligation of the municipality in which the development is located. The exemption provided pursuant to this paragraph shall expire if construction beyond site preparation does not commence within three years after receiving all final approvals required pursuant to the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.) ; and

(18) the subdivision of a lot owned by an individual and in existence on August 10, 2004 into two or more lots for the construction of a single family dwelling on each such newly created lot or lots, for an individual's own use or the use of an immediate family member, and the construction of such a dwelling, provided that (a) the subdivision of the lot would have been authorized under the local development regulations in effect on August 9, 2004, and (b) construction beyond site preparation of the single family dwelling on the newly created lot or lots commences within one year following the grant of final approval of the subdivision by the appropriate local approving authority .

b. The exemptions provided in subsection a. of this section shall not be construed to alter or obviate the requirements of any other applicable State or local laws, rules, regulations, development regulations, or ordinances.

c. Nothing in this act shall be construed to alter the funding allocation formulas established pursuant to the "Garden State Preservation Trust Act," P.L.1999, c.152 (C.13:8C-1 et seq.).

d. Nothing in this act shall be construed to repeal, reduce, or otherwise modify the obligation of counties, municipalities, and other municipal and public agencies of the State to pay property taxes on lands used for the purpose and for the protection of a public water supply, without regard to any buildings or other improvements thereon, pursuant to R.S.54:4-3.3.

(cf: P.L.2009, c.256, s.11)

3. Section 35 of P.L.2004, c.120 (C.13:20-33) is amended to read as follows:

35. a. The Department of Environmental Protection shall establish a Highlands permitting review program to provide for the coordinated review of any major Highlands development in the preservation area based upon the rules and regulations adopted by the department pursuant to sections 33 and 34 of this act. The Highlands permitting review program established pursuant to this section shall consolidate the related aspects of other regulatory programs which may include, but need not be limited to, the "Freshwater Wetlands Protection Act," P.L.1987, c.156 (C.13:9B-1 et seq.), "The Endangered and Nongame Species Conservation Act," P.L.1973, c.309 (C.23:2A-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.), the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.), and any rules and regulations adopted pursuant thereto, and the rules and regulations adopted pursuant to sections 33 and 34 of [this act] P.L.2004, c.120 (C.13:20-31 and C.13:20-32) . For the purposes of this section, the provisions of P.L.1975, c.232 (C.13:1D-29 et seq.) shall not apply to an application for a permit pursuant to the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.).

b. The Highlands permitting review program established pursuant to this section shall include:

(1) a provision that may allow for a waiver of any provision of a Highlands permitting review on a case-by-case basis if determined to be necessary by the department in order to protect public health and safety;

(2) a provision that may allow for a waiver of any provision of a Highlands permitting review on a case-by-case basis for redevelopment in certain previously developed areas in the preservation area identified by the council pursuant to subsection b. of section 9 of P.L.2004, c.120 (C.13:20-9) or subparagraph (h) of paragraph (6) of subsection a. of section 11 of [this act; and] P.L.2004, c.120 (C.13:20-11);

(3) a provision that may allow for a waiver of any provision of the Highlands permitting review on a case-by-case basis in order to avoid the taking of property without just compensation ; and

(4) a provision that may allow for a waiver, with the approval of a majority vote of the members of the Highlands Water Protection and Planning Council present at a meeting of that council for which a quorum has been reached notwithstanding the provisions of subsection f. of section 5 of P.L.2004, c.120 (C.13:20-5) to the contrary, of any provision of the Highlands permitting review on a case-by-case basis in order to avoid substantial economic hardship to the applicant .

The grant of a waiver pursuant to this subsection by the department shall be conditioned upon the department's determination that the major Highlands development meets the requirements prescribed for a finding as listed in subsection a. of section 36 of [this act] P.L.2004, c.120 (C.13:20-34) to the maximum extent possible.

c. The waiver provisions of subsection b. of this section are limited to the provisions of the rules and regulations adopted pursuant to section 34 of [this act] P.L.2004, c.120 (C.13:20-32) , and shall not limit the department's jurisdiction or authority pursuant to any other provision of law, or any rule or regulation adopted pursuant thereto, that is incorporated into the Highlands permitting review program.

d. The Highlands permitting review program established pursuant to this section may provide for the issuance of a general permit, provided that the department adopts rules and regulations which identify the activities subject to general permit review and establish the criteria for the approval or disapproval of a general permit.

e. Any person proposing to construct or cause to be constructed, or to undertake or cause to be undertaken, as the case may be, a major Highlands development in the preservation area shall file an application for a Highlands permitting review with the department, on forms and in a manner prescribed by the department.

f. The department shall, in accordance with a fee schedule adopted as a rule or regulation, establish and charge reasonable fees necessary to meet the administrative costs of the department associated with the processing, review, and enforcement of any application for a Highlands permitting review. These fees shall be deposited in the "Environmental Services Fund," established pursuant to section 5 of P.L.1975, c.232 (C.13:1D-33), and kept separate and apart from all other State receipts and appropriated only as provided herein. There shall be appropriated annually to the department revenue from that fund sufficient to defray in full the costs incurred in the processing, review, and enforcement of applications for Highlands permitting reviews.

(cf: P.L.2004, c.120, s.35)

4. This act shall take effect immediately.

STATEMENT

This bill would authorize the Highlands Water Protection and Planning Council to grant, by a majority vote of the council members present at a council meeting for which a quorum has been reached, a variance from the Highlands regional master plan, or from any development regulations or other regulations adopted by the council or a local government unit in accordance with the Highlands regional master plan, (1) for the same purposes and reasons and according to the same criteria as variances are granted pursuant to the "Municipal Land Use Law," or (2) for such other purposes, reasons, and criteria as may be established by the council in rules and regulations, provided that Highlands Region resources would not be substantially impaired.

The bill would also add a statutory exemption from the provisions of the "Highlands Water Protection and Planning Act," the Highlands regional master plan, any rules or regulations adopted by the Department of Environmental Protection (DEP) pursuant to that act, or any amendments to a master plan, development regulations, or other regulations adopted by a local government unit to specifically conform them with the Highlands regional master plan. The new exemption would be for the following: the subdivision of a lot owned by an individual and in existence on August 10, 2004 (the date of enactment of the Highlands Water Protection and Planning Act) into two or more lots for the construction of a single family dwelling on each such newly created lot or lots, for an individual's own use or the use of an immediate family member, and the construction of such a dwelling, provided that (1) the subdivision of the lot would have been authorized under the local development regulations in effect on August 9, 2004 (the day before the date of enactment of the Highlands Water Protection and Planning Act), and (2) construction beyond site preparation of the single family dwelling on the newly created lot or lots commences within one year following the grant of final approval of the subdivision by the appropriate local approving authority. "Immediate family member" is defined in the Highlands Water Protection and Planning Act as a "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."

Finally, the bill would authorize the granting of an economic hardship waiver from the DEP's Highlands permitting review process. Specifically, the bill would require the DEP's Highlands permitting review program to include a provision that may allow for a waiver, with the approval of a majority vote of the members of the Highlands Water Protection and Planning Council present at a meeting of that council for which a quorum has been reached, of any provision of the Highlands permitting review on a case-by-case basis in order to avoid substantial economic hardship to the applicant.