S3480

An Act concerning site improvement standards for storm water management related to residential developments and amending P.L.1993, c.32.

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

1. Section 4 of P.L.1993, c.32 (C.40:55D-40.4) is amended to read as follows:

4. a. The board shall, no later than 180 days following the appointment of its full membership, prepare and submit to the commissioner recommendations for Statewide site improvement standards for residential development. The site improvement standards shall implement the recommendations [with respect to streets, off-street parking, water supply, sanitary sewers and storm water management] of Article Six (with the exhibits appended thereto) of the January 1987 "Model Subdivision and Site Plan Ordinance" prepared for the department by The Center for Urban Policy Research at Rutgers, The State University, with respect to streets, off-street parking, water supply, and sanitary sewers, except to the extent that the recommendations set forth in the "Model Subdivision and Site Plan Ordinance" are inconsistent with the requirements of other law; provided, however, that, in the case of inconsistency between the "Model Subdivision and Site Plan Ordinance" and the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.), the site improvement standards recommended by the board shall conform to the provisions of the "Model Subdivision and Site Plan Ordinance;" and provided, further, that the board may in developing its recommendations, replace or modify any of the specific standards set forth in the aforesaid model ordinance in light of any recommended site improvement standards promulgated under similarly authoritative auspices of any academic or professional institution or organization.

In addition to those recommended standards, the board shall develop, and shall submit with recommendation to the commissioner, a model application form for use throughout the State.

At the time the board submits its recommendations for Statewide site improvement standards and a model Statewide application form, the board shall submit to the commissioner, the Governor, and the Legislature any recommendations it may deem necessary, in view of the recommended site improvement standards and the model [statewide] Statewide application form, for changes in the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.).

b. The commissioner shall review the recommendations submitted by the board and, following [his] the review, shall establish, by regulation adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), a set of Statewide site improvement standards to be followed by municipalities in granting development approval pursuant to P.L.1975, c.291 (C.40:55D-1 et seq.) and a standard application form that shall be used throughout the State. The commissioner shall promulgate the recommendations of the board with regard to Statewide site improvement standards without making a change in any recommended standard unless, in the commissioner's judgment, a standard would: (1) place an unfair economic burden on some municipalities or developers relative to others; or (2) result in a danger to the public health or safety. The commissioner may veto any site improvement standard on the abovementioned grounds; however, any veto of the commissioner may be overridden by a two-thirds vote of the board. The regulations shall be adopted within one year of their submission by the board to the commissioner.

c. A municipality or developer may seek a waiver of any site improvement standard adopted by the board in connection with a specific development if, in the judgment of the municipal engineer or the developer, to adhere to the standard would jeopardize the public health and safety. Any application for a waiver shall be submitted in writing to the commissioner, who shall direct the application to a technical subcommittee, as described below, if the commissioner deems the application to be justified according to the standards set forth in this subsection. The technical subcommittee shall consist of those representatives set forth in paragraphs (1), (2) and (6) of subsection a. of section 3 of [this act] P.L.1993, c.32 (40:55D-40.3) appointed by the commissioner to serve on the Site Improvement Advisory Board. Any decision of the technical subcommittee shall be adopted by resolution explaining the subcommittee's rationale for granting the waiver. The subcommittee shall render its decision within 30 days of the commissioner's determination that the application is justified. Any decision of the technical subcommittee may be appealed to the entire board; however, the board shall render any final decision of an appeal within 10 days of the hearing on the appeal and the decision of the full board shall be final. The waiver process shall not extend the time guidelines which constrain development applications which are set forth in the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.).

d. The board shall annually review the regulations adopted pursuant to subsection b. of this section, and shall recommend to the commissioner any changes in those regulations which the board deems necessary based on recommended site improvement standards promulgated under the authoritative auspices of any academic or professional institution or organization. Any changes made in the regulations pursuant to this subsection shall be made according to the same procedure and shall be subject to the same waiver provisions as those set forth in subsections a., b. and c. of this section.

e. Within 180 days following the effective date of P.L , c. (C. ) (pending before the Legislature as this bill), the commissioner shall revise, by regulations adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), the Statewide site improvement standards and the standard application form established pursuant to subsection b. of this section to conform with the requirements of P.L , c. (pending before the Legislature as this bill).

f. Notwithstanding any provision of this section, the regulations adopted pursuant to subsection b. of this section, and any other provision of law to the contrary, a municipality may by ordinance, for any project that is a residential development, adopt or readopt standards for storm water management that are more stringent than the minimum storm water management standards adopted pursuant to N.J.A.C.7:8-1 et seq. or any other minimum storm water management standards adopted pursuant to, or in furtherance of, the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.); the "Water Quality Planning Act," P.L.1977, c.75 (C.58:11A-1 et seq.); the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.); the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.); the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.); "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.); the "Freshwater Wetlands Protection Act," P.L.1987, c.156 (C.13:9B-1 et seq.); section 5 of P.L.1991, c.194 (C.40:55D-95.1); R.S.12:5-3; or R.S.58:4-1 et seq.

(cf: P.L.1993, c.32, s.4)

2. Section 5 of P.L.1993, c.32 (C.40:55D-40.5) is amended to read as follows:

5. a. Notwithstanding any provision to the contrary of the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.), the standards set forth in the regulations adopted pursuant to subsection b. of section 4 of [this act] P.L.1993, c.32 (C.40:55D-40.4) shall supersede any site improvement standards incorporated within the development ordinances of any municipality, as provided hereunder. The regulations adopted by the commissioner pursuant to subsection b. of section 4 of [this act] P.L.1993, c.32 (C.40:55D-40.4) and any subsequent amendments thereto shall take effect 180 days following the adoption of those regulations and any municipal ordinances in effect on that date shall be deemed to have been repealed and have no further force or effect; provided, however, that the development ordinances of any municipality shall continue to govern any project which has received preliminary approval on or before the effective date of any site improvement standards or amendments adopted thereto.

b. Notwithstanding any provision of law to the contrary, site improvement standards for storm water management, as set forth in the regulations adopted pursuant to subsection b. of section 4 of P.L.1993, c.32 (C.40:55D-40.4), shall not supersede the provisions of any more stringent requirements of a municipal development ordinance, which apply to residential developments if the ordinance is adopted on or after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill).

c. A municipal governing body may adopt a municipal development ordinance setting forth residential site improvement standards for storm water management for residential developments, if the ordinance is more stringent than the minimum storm water management standards adopted pursuant to N.J.A.C.7:8-1 et seq. or any other minimum storm water management standards adopted pursuant to, or in furtherance of, the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.); the "Water Quality Planning Act," P.L.1977, c.75 (C.58:11A-1 et seq.); the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.); the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.); the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.); "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.); the "Freshwater Wetlands Protection Act," P.L.1987, c.156 (C.13:9B-1 et seq.); section 5 of P.L.1991, c.194 (C.40:55D-95.1); R.S.12:5-3; or R.S.58:4-1 et seq.

(cf: P.L.1993, c.32, s.5)

3. This act shall take effect immediately.

STATEMENT

This bill makes changes to portions of the "Municipal Land Use Law" applicable to residential site improvement standards for storm water management to allow municipalities to adopt municipal development ordinances that establish more stringent residential site improvement standards for storm water management for residential developments.

The bill specifies that Statewide storm water management recommendations and established regulations are to include minimum standards for all residential developments. The bill requires the Commissioner of Community Affairs to revise the existing Statewide site improvement standards to conform with the requirements of the bill.

The bill further specifies that, for any project that is a residential development, a municipality may by ordinance adopt site improvement standards for storm water management that are more stringent than the Statewide minimum standards adopted by the Commissioner of Community Affairs.

New Jersey adopted storm water management regulations pursuant to P.L.1981, c.32 (C.40:55D-93 et seq.) as part of the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.). At the time New Jersey adopted this law, the "Federal Water Pollution Control Act Amendments of 1972," as amended by the "Clean Water Act of 1977" (33 U.S.C. s.1344) (CWA), did not require states or their political subdivisions to regulate storm water except for combined sewer systems. As a result of amendments to the CWA and subsequent regulations, in 1990 and 1999 in particular, New Jersey and its political subdivisions were required to issue Pollution Discharge Elimination System (NJPDES) permits for the control and regulation of polluted storm water discharges.

Because New Jersey has been required since 1999 to regulate its storm water discharges through the use of NJPDES permits, the New Jersey Department of Environmental Protection has issued Municipal Separate Storm Sewer System (MS4) permits to municipalities. Storm water is no longer regulated as a land use practice but as a pollutant. Therefore, continuing the limitations enacted with the Residential Site Improvement Standards is no longer appropriate.