ASSEMBLY, No. 2542

 

STATE OF NEW JERSEY

 

INTRODUCED DECEMBER 5, 1996

 

 

By Assemblyman WEINGARTEN

 

 

An Act concerning municipal land use, amending and supplementing P.L.1975, c.291.

 

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

 

    1. Section 3 of P.L.1975, c.291 (C.40:55D-3) is amended to read as follows:

    3. For the purposes of this act, unless the context clearly indicates a different meaning:

    The term "shall" indicates a mandatory requirement, and the term "may" indicates a permissive action.

    Administrative officer" means the clerk of the municipality, unless a different municipal official or officials are designated by ordinance or statute.

    "Applicant" means a developer submitting an application for development.

    "Application for development" means the application form and all accompanying documents required by ordinance for approval of a subdivision plat, site plan, planned development, conditional use, zoning variance or direction of the issuance of a permit pursuant to section 25 or section 27 of P.L.1975, c.291 (C.40:55D-34 or C.40:55D-36). "Application for development" shall also include any application for a development defined by a municipality as a development of intermunicipal impact pursuant to section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill).

    "Approving authority" means the planning board of the municipality, unless a different agency is designated by ordinance when acting pursuant to the authority of P.L.1975, c.291 (C.40:55D-1 et seq.).

    "Board of adjustment" means the board established pursuant to section 56 of P.L.1975, c.291 (C.40:55D-69).

    "Building" means a combination of materials to form a construction adapted to permanent, temporary, or continuous occupancy and having a roof.

    "Cable television company" means a cable television company as defined pursuant to section 3 of P.L.1972, c.186 (C.48:5A-3).

    "Capital improvement" means a governmental acquisition of real property or major construction project.

    "Circulation" means systems, structures and physical improvements for the movement of people, goods, water, air, sewage or power by such means as streets, highways, railways, waterways, towers, airways, pipes and conduits, and the handling of people and goods by such means as terminals, stations, warehouses, and other storage buildings or transshipment points.

    "Common open space" means an open space area within or related to a site designated as a development, and designed and intended for the use or enjoyment of residents and owners of the development. Common open space may contain such complementary structures and improvements as are necessary and appropriate for the use or enjoyment of residents and owners of the development.

    "Conditional use" means a use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use as contained in the zoning ordinance, and upon the issuance of an authorization therefor by the planning board.

    "Conventional" means development other than planned development.

    "County master plan" means a composite of the master plan for the physical development of the county in which the municipality is located, with the accompanying maps, plats, charts and descriptive and explanatory matter adopted by the county planning board pursuant to R.S.40:27-2 and R.S.40:27-4.

    "County planning board" means the county planning board, as defined in section 1 of P.L.1968, c.285 (C.40:27-6.1), of the county in which the land or development is located.

(cf: P.L.1991, c.412, s.1)

 

    2. Section 3.1 of P.L.1975, c.291 (C.40:55D-4) is amended to read as follows:

    3.1. "Days" means calendar days.

    "Density" means the permitted number of dwelling units per gross area of land to be developed.

    "Developer" means the legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land.

    "Development" means the division of a parcel of land into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation or enlargement of any building or other structure, or of any mining excavation or landfill, and any use or change in the use of any building or other structure, or land or extension of use of land, for which permission may be required pursuant to this act.

    "Development of intermunicipal impact" means any development specifically defined by ordinance as a development of intermunicipal impact which, in the judgment of the municipal governing body upon the advice of the planning board, is anticipated to have an adverse impact on any portion of the municipality, based on criteria set forth in the ordinance as provided in section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill), for which permission may or may not be required pursuant to this act.

     "Development regulation" means a zoning ordinance, subdivision ordinance, site plan ordinance, official map ordinance or other municipal regulation of the use and development of land, or amendment thereto adopted and filed pursuant to this act.

    "Drainage" means the removal of surface water or groundwater from land by drains, grading or other means and includes control of runoff during and after construction or development to minimize erosion and sedimentation, to assure the adequacy of existing and proposed culverts and bridges, to induce water recharge into the ground where practical, to lessen nonpoint pollution, to maintain the integrity of stream channels for their biological functions as well as for drainage, and the means necessary for water supply preservation or prevention or alleviation of flooding.

    "Environmental commission" means a municipal advisory body created pursuant to P.L.1968, c.245 (C.40:56A-1 et seq.).

    "Erosion" means the detachment and movement of soil or rock fragments by water, wind, ice and gravity.

    "Final approval" means the official action of the planning board taken on a preliminarily approved major subdivision or site plan, after all conditions, engineering plans and other requirements have been completed or fulfilled and the required improvements have been installed or guarantees properly posted for their completion, or approval conditioned upon the posting of such guarantees.

    "Floor area ratio" means the sum of the area of all floors of buildings or structures compared to the total area of the site.

    "General development plan" means a comprehensive plan for the development of a planned development, as provided in section 4 of P.L.1987, c.129 (C.40:55D-45.2).

    "Governing body" means the chief legislative body of the municipality. In municipalities having a board of public works, "governing body" means such board.

    "Historic district" means one or more historic sites and intervening or surrounding property significantly affecting or affected by the quality and character of the historic site or sites.

    "Historic site" means any real property, man-made structure, natural object or configuration or any portion or group of the foregoing of historical, archeological, cultural, scenic or architectural significance.

    "Interested party" means: (a) in a criminal or quasi-criminal proceeding, any citizen of the State of New Jersey; and (b) in the case of a civil proceeding in any court or in an administrative proceeding before a municipal agency, any person, whether residing within or without the municipality, whose right to use, acquire, or enjoy property is or may be affected by any action taken under this act, or whose rights to use, acquire, or enjoy property under this act, or under any other law of this State or of the United States have been denied, violated or infringed by an action or a failure to act under this act.

    "Land" includes improvements and fixtures on, above or below the surface.

    "Local utility" means any sewerage authority created pursuant to the "sewerage authorities law," P.L.1946, c.138 (C.40:14A-1 et seq.); any utilities authority created pursuant to the "municipal and county utilities authorities law," P.L.1957, c.183 (C.40:14B-1 et seq.); or any utility, authority, commission, special district or other corporate entity not regulated by the Board of Regulatory Commissioners under Title 48 of the Revised Statutes that provides gas, electricity, heat, power, water or sewer service to a municipality or the residents thereof.

    "Lot" means a designated parcel, tract or area of land established by a plat or otherwise, as permitted by law and to be used, developed or built upon as a unit.

(cf: P.L.1991, c.412, s.2)

 

    3. Section 7.1 of P.L.1975, c.291 (C.40:55D-12) is amended to read as follows:

    7.1. Notice pursuant to subsections a., b., d., e., f., g. and h. of this section shall be given by the applicant unless a particular municipal officer is so designated by ordinance; provided that nothing contained herein shall prevent the applicant from giving such notice if he so desires. Notice pursuant to subsections a., b., d., e., f., g. and h. of this section shall be given at least 10 days prior to the date of the hearing.

    a. Public notice of a hearing on an application for development shall be given, except for (1) conventional site plan review pursuant to section 34 of P.L.1975, c.291 (C.40:55D-46), (2) minor subdivisions pursuant to section 35 of P.L.1975, c.291 (C.40:55D-47) or (3) final approval pursuant to section 38 of P.L.1975, c.291 (C.40:55D-50); provided that the governing body may by ordinance require public notice for such categories of site plan review as may be specified by ordinance; and provided further that public notice shall be given in the event that relief is requested pursuant to section 47 or 63 of P.L.1975, c.291 (C.40:55D-60 or C.40:55D-76) as part of an application for development otherwise excepted herein from public notice. Public notice shall be given by publication in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality.

    b. Notice of a hearing requiring public notice pursuant to subsection a. of this section shall be given to the owners of all real property as shown on the current tax duplicates, located in the State and within 200 feet in all directions of the property which is the subject of such hearing; provided that this requirement shall be deemed satisfied by notice to the (1) condominium association, in the case of any unit owner whose unit has a unit above or below it, or (2) horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it. Notice shall be given by: (1) serving a copy thereof on the property owner as shown on the said current tax duplicate, or his agent in charge of the property, or (2) mailing a copy thereof by certified mail to the property owner at his address as shown on the said current tax duplicate.

    Notice to a partnership owner may be made by service upon any partner. Notice to a corporate owner may be made by service upon its president, a vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation. Notice to a condominium association, horizontal property regime, community trust or homeowners' association, because of its ownership of common elements or areas located within 200 feet of the property which is the subject of the hearing, may be made in the same manner as to a corporation without further notice to unit owners, co-owners, or homeowners on account of such common elements or areas.

    c. Upon the written request of an applicant, the administrative officer of a municipality shall, within seven days, make and certify a list from said current tax duplicates of names and addresses of owners to whom the applicant is required to give notice pursuant to subsection b. of this section. In addition, the administrative officer shall include on the list the names, addresses and positions of those persons who, not less than seven days prior to the date on which the applicant requested the list, have registered to receive notice pursuant to subsection h. of this section. The applicant shall be entitled to rely upon the information contained in such list, and failure to give notice to any owner or to any public utility, cable television company, or local utility not on the list shall not invalidate any hearing or proceeding. A sum not to exceed $0.25 per name, or $10.00, whichever is greater, may be charged for such list.

    d. Notice of hearings on applications for development involving property located within 200 feet of an adjoining municipality shall be given by personal service or certified mail to the clerk of such municipality.

    e. Notice shall be given by personal service or certified mail to the county planning board of a hearing on an application for development of property adjacent to an existing county road or proposed road shown on the official county map or on the county master plan, adjoining other county land or situated within 200 feet of a municipal boundary.

    f. Notice shall be given by personal service or certified mail to the Commissioner of Transportation of a hearing on an application for development of property adjacent to a State highway.

    g. Notice shall be given by personal service or certified mail to the State Planning Commission of a hearing on an application for development of property which exceeds 150 acres or 500 dwelling units. The notice shall include a copy of any maps or documents required to be on file with the municipal clerk pursuant to subsection b. of section 6 of P.L.1975, c.291 (C.40:55D-10).

    h. Notice of hearings on applications for approval of a major subdivision or a site plan not defined as a minor site plan under this act requiring public notice pursuant to subsection a. of this section shall be given, in the case of a public utility, cable television company or local utility which possesses a right-of-way or easement within the municipality and which has registered with the municipality in accordance with section 5 of P.L.1991. c.412 (C. 40:55D-12.1), by (1) serving a copy of the notice on the person whose name appears on the registration form on behalf of the public utility, cable television company or local utility or (2) mailing a copy thereof by certified mail to the person whose name appears on the registration form at the address shown on that form.

    i. The applicant shall file an affidavit of proof of service with the municipal agency holding the hearing on the application for development in the event that the applicant is required to give notice pursuant to this section.

    j. Notice pursuant to subsections d., e., f., g. and h. of this section shall not be deemed to be required, unless public notice pursuant to subsection a. and notice pursuant to subsection b. of this section are required.

    k. Notice of hearings on an application for development defined as a development of intermunicipal impact shall be given by personal service or certified mail to the clerk of any municipality which will be adversely affected by the development according to an ordinance adopted pursuant to section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill).

(cf: P.L.1991, c.412, s.4)

 

    4. Section 7.2 of P.L.1975, c.291 (C.40:55D-13) is amended to read as follows:

    7.2. The planning board shall give:

    (1) Public notice of a hearing on adoption, revision or amendment of the master plan; such notice shall be given by publication in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality at least 10 days prior to the date of the hearing;

    (2) Notice by personal service or certified mail to the clerk of an adjoining municipality of all hearings on adoption, revision or amendment of a master plan [involving property situated within 200 feet of such adjoining municipality] at least [10] 35 days prior to the date of any such hearing;

    (3) Notice by personal service or certified mail to the county planning board of (a) all hearings on the adoption, revision or amendment of the municipal master plan at least 10 days prior to the date of the hearing; such notice shall include a copy of any such proposed master plan, or any revision or amendment thereto; and (b) the adoption, revision or amendment of the master plan not more than 30 days after the date of such adoption, revision or amendment; such notice shall include a copy of the master plan or revision or amendment thereto.

(cf: P.L.1975, c.291, s.7.2)

 

    5. (New section) a. The governing body of any municipality may, by ordinance, require approval by resolution of the planning board or zoning board, as appropriate, of a development defined in the ordinance as a development of intermunicipal impact which is proposed to be situated within 100 feet of that municipality's boundaries, as a condition of approval of the application for development by the approving authority of the municipality in which the development is situated.

    A development may be defined as a development of intermunicipal impact if the planning board determines that the development will (1) increase traffic congestion, crime, noise, population density or otherwise contribute to the environmental degradation of the neighborhood adjacent to the area in which the development is to be undertaken; (2) change the character of the neighborhood; or (3) increase the need for municipal services in the municipality in order to address the spillover effects of the proposed development.

    b. Within 10 days following any determination by a planning or zoning board of adjustment with respect to a development of intermunicipal impact, the planning or zoning board secretary, as appropriate, shall forward a copy of the vote taken thereon to the planning or zoning board secretary of the municipality in which the proposed development is to be situated. Any decision by an adjacent municipality regarding a development of intermunicipal impact shall be made in accordance with the planning and zoning ordinances adopted by the municipality and may be appealed by the developer to the Superior Court.

    Any municipality which adopts such an ordinance shall, within 15 days of final adoption, provide a copy of the ordinance to the municipal clerk and planning board secretary of every municipality within 100 feet of the municipality's boundaries.

 

    6. This act shall take effect 90 days next following enactment.

 

 

STATEMENT

 

    This bill would create a process whereby a municipality may gain some involvement in the land use decisions made by an adjacent municipality within 100 feet of the municipality's boundaries. This bill addresses an increasingly common situation in the State whereby a municipality must accommodate the deleterious effects of major developments situated proximate to municipal borders with no recourse or involvement in those decisions.

    Specifically, the bill authorizes any municipality to define, by ordinance, a development of intermunicipal impact which, in the judgment of the municipal governing body, upon the advice of the planning board, is anticipated to have an adverse impact on any portion of the municipality, based on criteria set forth in the ordinance. Any development could be so defined, even though it fulfills all the conditions of planning and zoning ordinances in the host municipality.

    In making the determination, the governing body must find that the proposed development will fulfill certain negative criteria, including various indicators of environmental degradation, change in the character of the neighborhood, or increase in the demand for municipal services in the adjacent municipality. An applicant proposing a development defined as a development of intermunicipal impact would be required to give notice to the planning or zoning board, as appropriate, of the adjacent municipality even though the development may conform to the planning or zoning regulations of the host municipality. Approval of a development of intermunicipal impact by the adjacent municipality would be required as a condition of development approval by the host municipality.

    The bill requires that the adjacent planning or zoning board notify the planning or zoning board of the host municipality within 10 days of making its decision and that decision would be appealable to the Superior Court, as are other determinations under the "Municipal Land Use Law."

    The bill is not intended to remove any decision making power from municipalities in granting approvals under the "Municipal Land Use Law;" in other words, a favorable opinion of an adjacent municipality cannot override the denial of an application for a development by the host municipality under this bill. It merely provides an extra level of land use decision making power to those municipalities concerned about the impacts of development on municipal borders.

 

 

                             

 

Provides for review of developments of intermunicipal impact by affected municipalities.