SENATE, No. 839
STATE OF NEW JERSEY
INTRODUCED FEBRUARY 26, 1996
By Senator BUBBA
An Act creating the Passaic River Basin Flood Control Authority; defining its functions, powers and duties; creating a Passaic River Basin Flood Control Local Government Committee; defining its functions, powers and duties; supplementing Title 58 of the Revised Statutes; and making an appropriation.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. This act shall be known and may be cited as the "Passaic River Basin Flood Control Authority Act."
2. It is declared to be in the public interest and to be the policy of the State to foster and promote by all reasonable means the management of the flood plain area of the Passaic River Basin so as to minimize flood losses and to prevent the degradation of scenic and historic values, and thus to reduce, and, where possible, ultimately abate the menace to the economic vitality of the region and the public health, safety and general welfare resulting from this flooding and degradation. The recurring flooding conditions in the Passaic River Basin tend to be intermunicipal or intercounty in nature, creating the need for a new organizational structure capable of assisting these entities in resolving their mutual problems. It is the purpose and object of this act to further and implement this policy by:
a. Establishing a Passaic River Basin Flood Control Authority to prepare, in cooperation with other governmental agencies, a comprehensive flood control plan for the Passaic River Basin, to review plans for flood control submitted by other governmental agencies, to acquire such real property and to plan, acquire, construct, maintain, operate or improve such works as may be necessary to a comprehensive flood control system, to enter into agreements with other governmental agencies regarding the acquisition of real property and the planning, construction, maintenance, operation or improvement of works necessary to a comprehensive flood system, to assist the State and local units in enforcing and in meeting the requirements of flood control laws, rules, regulations and ordinances, and to prevent the degradation of the scenic and historic qualities of the Passaic River and its tributaries;
b. Providing for the financing of the operations of the authority by empowering it to accept gifts and federal and State aid; and
c. Providing for local government participation in the actions and operations of the authority by establishing a local government committee.
3. The following words or terms, as used in this act, shall have the following meaning, unless a different meaning clearly appears from the context:
a. "Authority" means the Passaic River Basin Flood Control Authority created by this act.
b. "Basin" means the following municipalities: in Bergen county, Allendale, Elmwood Park, Fair Lawn, Franklin Lakes, Garfield, Glen Rock, Hasbrouck Heights, Ho-Ho-Kus, Lodi, Lyndhurst, Mahwah, Maywood, Midland Park, Montvale, North Arlington, Oakland, Paramus, Ramsey, Ridgewood, Rochelle Park, Rutherford, Saddle Brook, Saddle River, South Hackensack, Upper Saddle River, Waldwick, Wallington, Washington, Wood-Ridge, Woodcliff Lake and Wyckoff; in Essex county, Belleville, Bloomfield, Caldwell, Cedar Grove, East Orange, Fairfield, Glen Ridge, Livingston, Millburn, Montclair, Newark, North Caldwell, Nutley, Orange, Roseland, South Orange, Verona, West Caldwell and West Orange; in Hudson county, East Newark, Harrison and Kearny; in Morris county, the town of Boonton, the township of Boonton, Butler, the borough of Chatham, the township of Chatham, Denville, Dover, East Hanover, Florham Park, Hanover, Harding, Jefferson, Kinnelon, Lincoln Park, Long Hill, Madison, the borough of Mendham, the township of Mendham, Mine Hill, Montville, Morris, Morris Plains, Morristown, Mount Arlington, Mountain Lakes, Parsippany-Troy Hills, Pequannock, Randolph, Riverdale, the borough of Rockaway, the township of Rockaway, Roxbury and Victory Gardens; in Passaic county, Bloomingdale, Clifton, Haledon, Hawthorne, Little Falls, North Haledon, Passaic, Paterson, Pompton Lakes, Prospect Park, Ringwood, Totowa, Wanaque, Wayne, West Milford and West Paterson; in Somerset county, Bernards, Bernardsville, Far Hills and Warren; in Sussex county, Hardyston, Sparta and Vernon; and in Union county, Berkeley Heights, New Providence and Summit.
c. "Commissioner" means the Commissioner of the Department of Environmental Protection.
d. "Committee" means the Passaic River Basin Flood Control Local Government Committee established by section 9 of this act.
e. "Construction" means, in addition to the usual meaning thereof, acts of construction, reconstruction, replacement, extension, improvement and betterment.
f. "Department" means Department of Environmental Protection.
g. "Flood" means an overflow or inundation coming from a river or other body of water.
h. "Flood control" means the prevention of flood damage by means of natural detention areas or detention areas returned to their natural state, warning systems, storage reservoirs, natural or restored detention areas, dikes, diversions, dams, spillways, levees, revetments, drains, ditches or channel improvements such as widening, deepening, straightening, clearing, sloping, building, filling in and all other alterations.
i. "Flood control system" means the plants, structures and other real and personal property, acquired, constructed or operated or to be acquired, constructed or operated by the authority for the purposes of flood control and such other plants, structures, conveyances and any other real and personal property, and rights therein, and appurtenances necessary, useful or convenient for flood control.
j. "Governmental agency" means a municipality, a county, the State, the federal government, or any instrumentality, agency or subdivision thereof.
k. "Local unit" means any county or municipality comprising the local government committee.
l. "Project" means any work relating to flood control as undertaken by the authority.
m. "Real property" means lands and improvements thereon, or any rights or interests therein.
4. a. There is established a public body corporate and politic, with corporate succession, to be known as the "Passaic River Basin Flood Control Authority." The authority is constituted as an instrumentality of the State, exercising public and essential governmental functions to provide for the public health and welfare, and the exercise by the authority of the powers conferred by this act shall be deemed and held to be an essential governmental function.
b. The authority shall consist of 15 members appointed by the Governor after consultation with the committee and with the advice and consent of the Senate for terms of four years, except that of the members of the authority first appointed by the Governor, four shall serve for one year, four shall serve for two years, four shall serve for three years, and three shall serve for four years. The members so appointed shall be selected from residents of the Passaic River Basin, and shall be chosen so that, to the extent practicable, all geographic areas of the basin are represented and that experts in engineering, planning, the environment, and municipal and county government are represented. At least one member shall be selected from each of the eight counties which encompass the Passaic River Basin: Bergen, Essex, Hudson, Morris, Passaic, Somerset, Sussex and Union. No member of the committee may be appointed to the authority. Each member shall hold office for the term of his appointment and until a successor has been appointed and qualified. A member shall be eligible for reappointment. Any vacancy in the membership occurring other than by expiration of term shall be filled in the same manner as the original appointment but for the unexpired term only.
c. Each member may be removed from office by the Governor, for cause, after a public hearing, and may be suspended by the Governor pending the completion of the hearing. Each member before entering the duties of office shall take and subscribe an oath to perform these duties faithfully, impartially and justly to the best of the member's ability. A record of these oaths shall be filed in the office of the Secretary of State.
d. No member, officer or employee of the authority shall have or acquire any interest, direct or indirect, in the flood control system or in any property included or planned to be included in the flood control system or in any contract or proposed contract for materials or services to be furnished or used by the authority, but the holding of any office or employment in the government of any county or municipality, except as provided in subsection b. of this section, or any other law of the State, shall not be deemed a disqualification for membership in or employment by the authority.
e. The chairman, who shall be the chief executive officer of the authority, shall be elected by the members of the authority from their membership. The authority shall elect a secretary and a treasurer, and the same person may be elected to serve both as secretary and treasurer. The powers of the authority shall be vested in the members thereof in office from time to time, and nine members of the authority shall constitute a quorum at any meeting, thereof. Action may be taken and motions and resolutions adopted by the authority at any meeting thereof by the affirmative vote of at least a majority of the members present, except as indicated in section 10 of this act. No vacancy in the membership of the authority shall impair the right of the remaining members to exercise all the powers and perform all the duties of the authority.
f. Each member and the treasurer of the authority shall execute a bond to be conditioned upon the faithful performance of the duties of the member or treasurer, as the case may be, in such form and amount as may be prescribed by the committee. The bonds shall be filed in the office of the Secretary of State. At all times thereafter, the members and the treasurer of the authority shall maintain the bonds in full force and effect. All costs of the bonds shall be borne by the authority.
g. The members of the authority shall serve without compensation, but the authority shall reimburse its members for actual expenses necessarily incurred in the discharge of their duties.
5. a. The authority is directed to prepare, in consultation with the department and with other governmental agencies, a comprehensive flood control plan for the basin, which shall be directed toward the control of floods but shall give due consideration to the related areas of water quality, water supply, and the scenic and historic qualities of the basin. The authority shall, prior to adoption, hold an advertised public hearing on the plan in each constituent county and the plan shall be available for public inspection at the office of the authority and at the office of the clerk of each local unit.
b. A copy of any proposal to adopt, amend or repeal a zoning ordinance, a flood control ordinance, a master plan or an official map by any county or municipality that would affect any land in the basin shall be forwarded to the authority for review and comments; however, the approval of the authority shall not be required prior to adoption or amendment.
c. The authority is directed, subject to the limitations of this act and in conformance with its flood control plan, to acquire, in its own name, by purchase, gift, condemnation or otherwise, real property and flood control structures to implement, construct, operate, maintain and use a flood control system. The system shall be designed to provide an effective, environmentally protective and satisfactory method for promoting the purposes of the authority.
d. Any real property acquired by the authority for use as natural detention areas or constructed dry detention basins may be turned over to the respective county park agencies for development as park land or for preservation as open space and for maintenance.
e. The authority shall submit an environmental impact statement to the department for approval before undertaking or agreeing to undertake any construction of a flood control system and affirmatively demonstrate compliance with all State and local environmental protection requirements. The authority shall prepare the statement in accordance with guidelines established by the department and the statement shall include the record of a public hearing to be held at such time and place as shall be convenient for residents of the area in which the project is proposed to be located. The authority shall make available prior to the hearing information concerning the project to any interested party who wishes to submit comments at the public hearing.
f. The authority is directed, when in its judgment its flood control system or any part thereof will benefit, to regulate within the basin any bodies of water which are potential sources of flooding, subject to any other provision of law which is applicable. The authority shall assist the department in delineating and marking flood hazard areas and shall assist in enforcing any of the rules or regulations promulgated by the department and any flood control ordinance adopted by a constituent municipality. In the development of the flood control system, the authority is further directed to concern itself with the special water pollution problems arising after the occurrence of heavy rains.
6. Except as otherwise limited by this act, the authority has the power:
a. To sue and be sued;
b. To make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the exercise of its powers under this act;
c. To have an official seal and alter the seal at pleasure;
d. To make and alter bylaws for its organization and internal management and for the conduct of its affairs and business, which bylaws shall be available for inspection at the office of the authority and at the office of the clerk of each constituent municipality;
e. To draw up and adopt an annual budget subject to the provisions of section 10 of this act;
f. To make, amend, repeal and enforce resolutions for carrying its powers into effect;
g. To maintain an office at such places within the State as it may determine;
h. To acquire, lease as lessee or lessor, rent, hold, use and dispose of real or personal property for its purposes;
i. To borrow money;
j. To procure insurance against any losses in connection with its property, operations or assets in such amounts and from such insurers as it deems desirable;
k. To invest moneys of the authority not required for immediate use in such obligations, securities and other investments as are permitted by law for municipalities, counties and school districts;
l. To appoint and employ an executive director and such additional officers who need not be members of the authority and accountants, financial advisors or experts and such other officers, agents and employees as it may require and determine their qualifications, terms of office, duties and compensation, all without regard to the provisions of Title 11A of the New Jersey Statutes, except that it is the express intent of the Legislature that the authority within its discretion shall utilize, to the fullest extent feasible, the services of the officers, personnel and consultants of the constituent counties and municipalities;
m. To contract for and to accept any gifts, grants or loans of funds or property, or financial or other aid in any form from the United States of America, or any agency or instrumentality thereof, or from the State or any agency, instrumentality or political subdivision thereof, or from any other source, and to comply, subject to the provisions of this act, with the terms and conditions thereof;
n. To acquire, for the purposes of flood control and subject to the provisions of any other law, in the name of the authority by purchase or otherwise, on such terms and conditions and in such manner as it may deem proper, or except with respect to property owned by the federal government, the State, or its political subdivisions, by the exercise of the power of eminent domain, any land and other property within the basin, which it may deem clearly necessary for any of its projects, and any rights, title and interest in this land and other property, including, if there is no prudent and feasible alternative, public lands, reservations, highways or parkways, owned by, or in which the State or any county, municipality, public corporation, or other political subdivision of the State has any right, title or interest, or parts thereof, or rights therein, and any fee simple absolute or any lesser interest in private property, and any fee simple absolute in easements upon, or the benefit of restrictions upon, abutting property to preserve and protect these projects;
o. To enter on any lands, waters or premises for the purpose of making surveys, borings, soundings and examinations for the purposes of the authority;
p. To do and perform any acts and things authorized by this act under, through, or by means of, its officers, agents or employees;
q. To establish and enforce rules and regulations for the use or operation of its projects or the conduct of its activities, and provide for the policing and the security of its projects;
r. In addition to the other powers conferred by this act or by any other law, and not in limitation thereof, the authority, in connection with the construction or operation of any of its projects, improvements, or activities, shall have power to make reasonable regulations for the installation, construction, maintenance, repair, renewal, relocation or removal of tracks, pipes, mains, conduits, cables, wires, towers, poles, or any other equipment and appliances. Whenever the authority determines that in any project, improvement or operation it is necessary that facilities, which are, or hereafter may be, located in, on, along, over or under real property, including public lands, waters, parks, roads, streets, highways, playgrounds and reservations, should be relocated in the real property, including public lands, waters, parks, roads, streets, highways, playgrounds and reservations, or should be removed therefrom, the public utility owning or operating these facilities shall relocate or remove the same in accordance with the order of the authority; except that the cost and expense of this relocation or removal, including the cost of installing these facilities in a new location and the cost of any lands or any rights or interest in lands or any other rights acquired to accomplish this relocation or removal, less the cost of any lands or any rights or interests in lands or any other rights of the public utility in connection with the relocation or removal of this property, shall be paid by the authority and may be included in the cost of these projects, improvements or operations. In case of any relocation or removal of facilities, the public utility owning or operating the same, its successors or assigns, may maintain and operate these facilities, with the necessary appurtenances in the new location for as long a period, and upon the same terms and conditions, as it had the right to maintain and operate these facilities in their former location;
s. The authority is authorized to undertake the construction of bridge improvements and to engage in dredging and desnagging activities and projects on the Passaic river or at any inlet, estuary or tributary waterway thereof, or on any inland waterway adjacent to any inlet, estuary or tributary waterway of the Passaic river which may be necessary for flood control and to prevent or repair damage caused by erosion or storm; except that the municipality and county in which this work is undertaken shall acquire and make available without cost to the authority all lands, easements and rights of way required in connection with this work. All work shall be done under contract with and under the supervision of the authority, subject to the provisions of any other law of this State; and
t. To do anything necessary or convenient to carry out its purposes in accordance with the powers expressly given and granted by this act.
7. The authority may establish the reserves, funds or accounts as may be necessary or desirable to further the accomplishment of the purposes of the authority or to comply with the provision of any agreement made by or any resolution of the authority.
8. Upon the exercise of the power of eminent domain, the compensation to be paid thereunder shall be ascertained and paid in the manner provided by law, and the authority is authorized to file with the clerk of the Superior Court a declaration of taking in the manner provided by law.
9. a. There is established a Passaic River Basin Flood Control Local Government Committee, the membership of which shall consist of the mayor or chief executive of each municipality in the basin, or a designated alternate, who shall be a member of the municipal environmental commission in those municipalities where these commissions have been established, and the chairmen of the Bergen, Essex, Hudson, Morris, Passaic, Somerset, Sussex and Union county planning boards, or their designated alternates.
b. The committee shall hold its first meeting as soon as possible after the effective date of this act.
c. A majority of the membership of the committee shall constitute a quorum for the transaction of committee business. Action, except as otherwise specifically provided herein, may be taken and motions and resolutions adopted by the committee at any meeting thereof by the affirmative vote of a majority of the full membership of the committee. The committee shall elect from its membership a liaison subcommittee consisting of 11 members. It is the purpose of the liaison subcommittee to act as liaison between the authority and the committee.
d. The committee shall meet regularly as it may determine, and may also meet at the call of the executive director of the authority.
e. The committee shall appoint a chairman from among its members and such other officers as may be necessary.
f. Members of the committee shall serve without compensation, and each member shall serve only so long as the member holds the office which entitles the member to committee membership or, if the member is an alternate, only so long as the official who designated the member remains in office. The committee may reimburse its members for necessary expenses incurred in the discharge of their duties.
10. a. The authority shall submit its proposed annual budget to the committee for review, at least 45 days prior to the final adoption thereof.
b. The authority shall conduct a public hearing concerning the proposed annual budget at least 45 days prior to the final adoption thereof.
c. The committee shall review the proposed annual budget submitted to it by the authority pursuant to this section and shall indicate its position in writing to the authority. The committee may reject or modify the proposed annual budget by an affirmative vote of a majority of the full committee.
d. Failure of the committee to state its position within 45 days of the receipt of the proposed annual budget so referred to the committee shall be deemed to constitute approval thereof.
e. The authority shall not adopt, pursuant to this section, the proposed annual budget if it was formally rejected by the committee.
f. The authority shall submit this annual budget to the Governor and Legislature as part of the annual report submitted pursuant to section 14 of P.L. , c. (C. ) (now before the Legislature as this bill).
11. Any governmental entity, notwithstanding any contrary provision of law, except any requiring notice or public hearing, may lease, lend, grant or convey to the authority, at its request upon such terms and conditions as the governing body or other proper authority of the governmental entity may deem reasonable and fair and without the necessity for any advertisement, order of court or other action or formality, other than the ordinance, resolution or regular action thereof, any real property or interest therein which may be necessary to the effectuation of the purposes of this authority.
12. Every project, when constructed and placed in operation, shall be maintained and kept in good condition and repaired by the authority and shall be subject to all orders and applicable acts, rules and regulations of the department. Every project shall be operated by such operating employees as the authority may employ or pursuant to a contract or lease with a governmental agency or person.
13. Any governmental agency or combination thereof may cooperate with the authority in the acquisition or construction of a project and shall enter into such agreements with the authority as are necessary with a view to effective cooperative action and safeguarding of the respective interests of the parties thereto, which agreements shall provide for such contributions by the parties thereto in such proportion as may be agreed upon and such other terms as may be mutually satisfactory to the parties including, without limitation, the authorization of the construction of the project by one of the parties acting as agent for all of the parties and the ownership and control of the project. Any governmental agency may provide such contribution as is required under such agreements by the appropriation of money or, if otherwise authorized by law to issue bonds or levy taxes or assessments and issue bonds in anticipation of the collection thereof, by the issuance of bonds or by the levying of taxes or assessments and the issuance of bonds in anticipation of collection thereof, and by the payment of the appropriated money or the proceeds of the bonds to the authority pursuant to the agreements.
14. On or before the last day of February in each year the authority shall make an annual report of its activities for the preceding calendar year to the Governor, to the Legislature, to the governing bodies of Bergen, Essex, Hudson, Morris, Passaic, Somerset, Sussex and Union counties and to the governing body of each constituent municipality. Each report shall set forth a complete operating and financial statement covering its operations during the year and shall include a description and analysis of the progress of flood control within the basin. The authority shall cause an audit of its books and accounts to be made at least once in each year by certified public accountants and the cost thereof shall be considered an expense of the authority and a copy thereof shall be filed with the Comptroller of the Treasury.
15. All officials and agencies of the State and of the concerned counties and municipalities are authorized to render any of such services to the authority as may be within the area of their respective governmental functions as fixed or established by law, and as may be requested by the authority. The cost and expense of the services shall be met and provided for by the authority.
16. No contract on behalf of the authority shall be entered into for the doing of any work, or for the hiring of equipment or vehicles, where the sum to be expended exceeds the sum of $7,500, unless the authority shall first publicly advertise for bids therefor, and shall award the contract to the lowest responsible bidder; except that advertising shall not be required where the contract to be entered into is one for the supplying of any product or the rendering of any service by a public utility subject to the jurisdiction of the Board of Public Utilities and the tariffs and schedules of the charges made, charged, or exacted by the public utility for any products to be supplied or services to be rendered are filed with the board. This section shall not prevent the authority from having any work done by its own employees, nor shall it apply to repairs, or to the furnishing of materials, supplies or labor, or the hiring of equipment or vehicles, when the safety or protection of its or other public property or the public convenience require, or the exigency of the authority's service will not admit this advertisement. In this case, the authority shall declare, by a resolution passed by the affirmative vote of a majority of its members, the exigency or emergency to exist, and set forth in the resolution the nature thereof and the approximate amount to be expended.
17. All projects and other property of the authority are declared to be public property devoted to an essential public and governmental function and purpose and shall be exempt from all taxes and special assessments of the State or any political subdivision thereof; except that when any part of the project site not occupied or to be occupied by facilities of the project is leased by the authority to another whose property is not exempt and the leasing of which does not make real estate taxable, the estate created by the lease and the appurtenances thereto shall be listed as the property of the lessee thereof and be assessed and taxed as real estate.
18. This act shall be construed liberally to effectuate the legislative intent and the purposes of the act for the performance of each act herein authorized and all powers herein granted shall be broadly interpreted to effectuate the intents and purposes of this act and not as a limitation of powers.
19. The authority may hold discussions with existing sewerage authorities and such other entities that may be established, with the objective of proposing legislation providing for a merger or consolidation of the authorities.
20. a. There is appropriated to the department from the General Fund, $500,000, or so much thereof as may be necessary, to coordinate flood control activities with the authority.
b. There is appropriated to the authority from the General Fund, $6,500,000, not more than 5% of which shall be used for administrative costs connected with flood control projects.
21. Once the funds appropriated to the authority under section 20 of this act are expended, the commissioner shall submit with the annual budget request of the department an amount determined in conjunction with the authority for the provision of the operating expenses of the authority for the upcoming fiscal year.
22. This act shall take effect immediately.
STATEMENT
This bill establishes the "Passaic River Basin Flood Control Authority," which would be responsible for flood control planning and the construction of flood control facilities in the Passaic River Basin. (The Passaic River Basin is composed of the area occupied by 113 municipalities in the eight counties of Bergen, Essex, Hudson, Morris, Passaic, Somerset, Sussex and Union). The authority would consist of 15 members, appointed by the Governor; at least one member of the commission must reside in each of the eight counties in the Passaic River Basin.
The bill also establishes the "Passaic River Basin Flood Control Local Government Committee," a 121 member body comprising the Mayor (or a delegate) of each of the 113 municipalities in the basin, and the chairman of the county planning board from each of the eight counties in the basin. The committee is required to establish an eleven member subcommittee to act as the liaison between the authority and the full committee. The committee is authorized to offer advice to the authority's annual budget, which the authority must submit to the committee each year.
The Passaic River Basin Flood Control Authority's powers shall include the following:
1. The preparation of a comprehensive flood control master plan for the basin, the major focus of which is to be flood control. In addition the plan must consider water supply and water quality issues, and the scenic and historic qualities of the basin.
2. The construction, acquisition, and operation of flood control facilities. The authority must submit and receive the Department of Environmental Protection's approval of an Environmental Impact Statement for any flood control system of facility.
3. The acquisition of property through the power of eminent domain.
4. The regulation of the use of any bodies of water in the basin which are potential sources of flooding, subject to the provisions of other applicable laws.
5. The review of all proposed changes in zoning ordinances, flood control ordinances, or municipal master plans in each municipality or county in the basin.
6. The construction of bridges, and the undertaking of dredging and desnagging activities on the Passaic river and other waterways in the basin.
7. The construction of flood control facilities in cooperation with other governmental agencies.
The bill provides that the authority must file an annual report with the Governor, the Legislature, and the members of the committee, must make public an annual audit of its books, and must publicly advertise and accept the lowest bid for all contracts over $7,500.
The bill also authorizes that property owned by the authority for flood control purposes is exempt from property taxation.
The bill contains two appropriations from the General Fund: $500,000 to the Department of Environmental Protection to coordinate flood control activities with the authority, and $6,500,000 to the authority, not more than 5% of which can be used for administrative expenses. The annual operating expenses of the authority are to be funded through appropriations from the General Fund.
The bill further requires the authority to include its annual budget with the annual submission to the Governor and Legislature required under section 14 of the bill.
Establishes the Passaic River Basin Flood Control Authority; appropriates $7 million.