A5350

An Act prohibiting development of affordable housing on certain contaminated land and supplementing P.L.1985, c.222 (C.52:27D-301 et al.).

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

1. The Legislature finds and declares that:

(1) The long-term health effects of living on previously contaminated land, even after remediation, may not yet be completely understood;

(2) It is imperative that vulnerable residents, including low-income households, be afforded the highest levels of protection;

(3) Residents of affordable housing should not bear the burden of unforeseen environmental risks due to prior contamination; and

(4) It is necessary for the Legislature to prohibit the development of land that is currently or has previously been contaminated for use as affordable housing to protect this State’s vulnerable low- and moderate-income households.

2. For the purposes of P.L. , c. (C. ) (pending before the Legislature as this bill):

“Contaminated land” means a parcel of land, previously identified as having contamination, including but not limited to, hazardous waste, hazardous pollutants, chemical spills, or toxic substances, and subsequently remediated.

“Contamination” or “contaminant” means any hazardous substance as defined pursuant to section 3 of P.L.1976, c.141 (C.58:10-23.11b), hazardous waste as defined pursuant to section 1 of P.L.1976, c.99 (C.13:1E-38), or pollutant as defined pursuant to section 3 of P.L.1977, c.74 (C.58:10A-3).

“Soil test” means a technical analysis of soil conducted by a professional authorized by the Commissioner of Community Affairs to conduct such testing pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill).

3. a. A developer shall obtain a soil test on land intended for use as an inclusionary development to determine whether the land constitutes contaminated land. The results of the soil test shall be provided to the approving authority of the municipality in which the proposed development is located. Except for an application for development of an inclusionary development that is approved prior to the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill) or as provided in subsection b. of this section, no development or construction of an inclusionary development shall commence on a site that has been determined to be contaminated, regardless of whether the site has been remediated, or certified by the Department of Environmental Protection or the federal Environmental Protection Agency as safe for development.

b. Subsection a. of this section shall not apply to remediated sites that the Department of Environmental Protection has determined to be sufficiently cleaned and restored, such that the levels of contaminants present on the site are low enough to ensure safety for the site’s intended uses, the environment, and human residency in the inclusionary development.

c. (1) A developer who commences construction on land in violation of this section shall be subject to penalties prescribed by the Commissioner of Community Affairs, in consultation with the Commissioner of Environmental Protection, designating specific types or categories of violations as minor violations and non-minor violations and establishing penalties according to the nature of the violation.

(2) A municipality that submits a fair share plan and housing element to the Affordable Housing Dispute Resolution Program, established pursuant to section 5 of P.L.2024, c.2 (C.52:27D-313.2), in violation of this section, shall not receive credit against its affordable housing obligation for any development in violation of subsection a. of this section and shall be subject to penalties prescribed by the Commissioner of Community Affairs.

4. The Commissioner of Community Affairs, in consultation with the Commissioner of Environmental Protection, shall, in accordance with the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations as necessary to implement P.L. , c. (C. ) (pending before the Legislature as this bill), including but not limited to, rules establishing criteria for the certification of professionals authorized to conduct a technical analysis of soil pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill).

5. This act shall take effect immediately, and shall apply to an application for development that has not been approved, and a municipality’s fair share plan and housing element that has not received compliance certification, prior to the effective date of this act.

STATEMENT

This bill prohibits the development of land intended for use as affordable housing, which has previously been determined to be contaminated, even if the land has been certified by the Department of Environmental Protection as clean or fully remediated, to safeguard the health and well-being of New Jersey’s most vulnerable residents. The long-term health effects of prior contamination are not yet fully appreciated, and it is imperative to ensure that housing built for low- and moderate-income households does not pose health risks to its occupants.

Specifically, the bill requires a developer to obtain a soil test on land intended for use as affordable housing, to determine whether the land constitutes contaminated land. The bill requires the results of the soil test to be provided to the approving authority of the municipality in which the proposed development is located. Except for an application for development of affordable housing that is approved prior to the effective date of the bill or subject to limited exceptions provided by the bill, the bill prohibits the development of, or the commencement of construction on, a site that has been determined to be contaminated, regardless of whether the site has been remediated, or certified by the Department of Environmental Protection or the federal Environmental Protection Agency as clean and ready for development.

The requirements of the bill would not apply to remediated sites that the Department of Environmental Protection has determined to be sufficiently cleaned and restored, such that that the levels of contaminants present on the site are low enough to ensure safety for the site’s intended uses, the environment, and human residency in the development.

The bill provides that a developer who commences development of or construction on land in violation of the bill would be subject to penalties prescribed by the Commissioner of Community Affairs, in consultation with the Commissioner of Environmental Protection, designating specific types or categories of violations as minor violations and non-minor violations and establishing penalties according to the nature of the violation. The bill provides that a municipality that submits a fair share plan and housing element to the Affordable Housing Dispute Resolution Program, in violation of the bill, would be subject to penalties prescribed by the Commissioner of Community Affairs and would not receive credit against its affordable housing obligation for any development in violation of the bill.

The bill would take effect immediately, and apply to an application for development that has not been approved, and a municipality’s fair share plan and housing element that has not received compliance certification, prior to the effective date of the bill.