Solar Panels Do Not Constitute Impervious Cover Under New Law

 On Thursday, legislation designed to make it easier for both homeowners and businesses to install clean-energy producing solar panels was signed into law by Governor Chris Christie.  Specifically, S-921 amends a number of laws, including the the Municipal Land Use Law, Highland Act, Pinelands Act, and legislation relating to various NJDEP approvals, including coastal development permits, to exempt solar panels from being considered as “impervious cover” or “impervious surface.”  This legislative change is significant as local zoning laws typically set maximum impervious surface or coverage percentages and municipal and state agencies have been inconsistent in determining whether solar panels should constitute an impervious surface. 

According to a release from two of the primary sponsors, Senator Bob Smith (D-Middlesex, Somerset) and Senator James Beach (D-Camden):

Currently, there are numerous state laws and regulations that prohibit what is known as “impervious cover” or “impervious surface” from covering large expanses of a given property. Impervious surfaces or cover can be anything such as driveways, homes, pavement or any other cover that prevents water from being absorbed into the ground, thereby preventing aquifers from being replenished and causing run-off, soil erosion, flooding and other environmental hazards.

The new law (S-921) will exempt solar panels from being considered “impervious cover” because they are elevated panels that do not completely cap the ground and prevent water absorption. The exemption will allow for the development of solar panels in various protected areas where they are currently prohibited such as the Pinelands, the Highlands, coastal and waterfront areas, and other areas protected by the Municipal Land Use Law.

Following the bill signing, Governor Chris Christie commented on the new law: “There is a balance to be struck between responsible land-use law and well-intended but burdensome restrictions that do more harm than good,” Governor Christie said. “This legislation removes the regulatory burden, serves our environment by expanding renewable energy assets and serves the economy by creating demand for solar panel production.” 

Other Republicans also eagerly supported the legislation:

“Most people don’t realize that New Jersey is one of the largest and fastest growing solar energy producers in the country,” said primary sponsor State Senator Jennifer Beck (R-Monmouth). “While there is a growing demand from homeowners, farmers and the business community to install solar panels on their properties, many have found a patchwork of conflicting laws and regulations that have prevented clean energy installations. This legislation removes a major obstacle that has prevented our state’s growth in solar energy.”

Municipalities and environmental regulators have been inconsistent in their determination of how ground-level solar panel arrays should be considered for zoning purposes and compliance with environmental regulations, with some designating the structures as impervious surfaces. This designation has prevented some proposed solar energy installations from being built.  The legislation, S-921, specifically exempts solar panel installations from being considered an impervious surface cover.

“This legislation will ensure that solar panels are considered in a uniform manner for zoning and environmental purposes, which will eliminate confusion and speed the adoption of clean energy in New Jersey,” said Assemblyman Declan O’Scanlon (R-Monmouth), a co-sponsor of the legislation.

“There’s no reason the Garden State cannot become the biggest producer of clean solar energy in the nation,” added Assemblywoman Caroline Casagrande (R-Monmouth).

In addition to signing this legislation on Earth Day, Governor Christie has been promoting his energy policy all week, as noted in a release from the Governor’s Office regarding a recent Board of Public Utilities conference on sustainability.  For the release, click HERE.

Affordable Housing Amendments, Permit Extension Act Pass Legislature

In a frenetic day of wheeling and dealing on the $32+ billion State Budget, two key bills that we have been closely tracking received approval from both houses of the legislature, sending them to Governor Corzine’s desk with the expectation that both will be signed in short order.

Affordable Housing Policy Reform

A-500/S-1783, which amends portions of the Fair Housing Act, the Local Redevelopment and Housing Law and the Administrative Procedure Act, provides significant changes to New Jersey’s approach to affordable housing requirements. Central to the bill is the elimination of Regional Contribution Agreements (RCAs) except in specific regional planning areas such as the Highlands, Pinelands, Ft. Monmouth, Meadowlands and Atlantic City region. If a municipality outside of these regional planning areas has received COAH or court approval to proceed with a RCA, they may do so. If it has not received final approval, it must make provision for constructing its fair share obligation within its borders.

The legislation anticipates that the elimination of RCAs will be counterbalanced by a new statewide 2.5 percent development fee which will be imposed on “all” non-residential development (with some exceptions such as non-residential development within a designated transit village area, structured parking facilities, etc.) including expansion of existing facilities. Under the provisions of the bill, the development fee must be paid prior to the issuance of a Certificate of Occupancy. The legislation contemplates payment under protest and the ability to challenge the assessment of the “equalized assessed value” which is the basis for imposition of the fee. This legislation effectively eliminates the requirement under current COAH regulations that a non-residential developer provide an affordable unit for every 16 jobs purportedly created and pre-empts any current municipal development fee ordinances.

Municipalities that petition COAH for substantive certification of a housing plan can create dedicated escrow funds for the revenues generated from new non-residential construction which must be spent on meeting that municipalities affordable housing needs within a four-year period. Those municipalities that have not applied for substantive certification must send the fees collected to a statewide Affordable Housing Trust Fund, which will be administered by DCA for the creation of affordable housing throughout the state.

The legislation also requires state agencies, when preparing rule proposals, to include a “Housing Affordability Impact Analysis” and “Smart Growth Development Impact Analysis” to force regulatory agencies to focus on whether proposed regulations will have an impact on the affordability or availability of housing.

Other amendments include requiring the replacement of affordable housing on a 1:1 basis when a redeveloper eliminates existing affordable housing in constructing or assembling a redevelopment project and mandates that the comparable housing be located in or in close proximity to the redevelopment; mandating a 20 percent affordable housing component in designated transit village and urban transit hub areas while eliminating the 2.5 percent non-residential development fee for such projects; and mandatory inclusionary development requirements for property that is rezoned from commercial or industrial to residential. The legislation also encourages that financial incentives, including density bonuses, be incorporated into a municipality’s fair share/housing plan.

Permit Extension Act

A-2867/S-1919 provides for the tolling of many types of development permits and government approvals from January 1, 2007 to July 1, 2010. Under no circumstances will approvals tolled under this legislation exend further than six months past the July 1, 2010 extension period. Notable exceptions that are not tolled by this Act include approvals for development in “environmentally sensitive areas” and flood hazard area permits, unless a project has already commenced.

We will be providing a more comprehensive overview of the final versions of these legislative proposals once they are signed into law by Governor Corzine.

Done Deal on Permit Extensions?

It appears that a compromise has been reached on the proposed Permit Extension Act. The Senate version of the bill, S-1919, in its current form, will extend most development permits to December 31, 2010. It will also revive permits that expired subsequent to January 1, 2007. The Smart Growth Coalition originally was looking for a backward reach to 2006. The Assembly version, A-2867, as amended earlier this month, allowed for only a limited resuscitation clause to January 1, 2008.

The Senate version also eliminates any extension of Flood Hazard Area permits (unless work has already commenced on a portion of an approved project) – a provision that had not been in the Assembly bill. Any Stream Encroachment or Flood Hazard Area permit that has expired or will expire will not be extended by the Senate version.

The current Assembly version has been amended to mirror the Senate bill.

To read the Star Ledger article regarding the Act’s status, click here.

Senate Version of Permit Extension Act to Include Water Quality Standards

It appears that the Senate version of the Permit Extension Act (S-1919) will become more watered down. Senator Ray Lesniak (D-Union), chairman of the Economic Growth Committee, has indicated that the Senate Committee will consider amendments that place additional limitations on permits validly issued under prior regulations which will require meeting strict water quality and flood hazard controls enacted after those projects were conceived, designed and originally permitted and approved. These amendments would appear to thwart the underlying purpose of the legislation, namely, recognizing that economic conditions have delayed the industry from acting upon valid permits and extending such permits for an additional period of time.

According to the Star Ledger:

Sen. Raymond Lesniak (D-Union), chairman of the Senate Economic Growth Committee, postponed a vote on the bill, saying he wanted to draft amendments requiring projects to meet up-to-date standards for protecting water quality and flood plains.

“The environmentalists would go further,” Lesniak said. “They would like to include all general health and safety issues, and I don’t know how you do that.”

Citing one example of broader safety considerations, Jeff Tittel, director of the New Jersey chapter of the Sierra Club, said chromium standards were toughened last year and building projects that do not meet them should not be allowed to proceed.

Tittel considered yesterday’s delay a victory in that it slowed down a bill he said was being “railroaded” through the Legislature.

Lesniak said that without permit extensions, New Jersey’s economic recovery would be delayed as developers go through the paperwork needed to renew permits that had lapsed.

“We don’t want to wait two to three more years after the economy gets going for our people to get back to work,” Lesniak said.

Alan Steinberg, the regional administrator of the U.S. Environmental Protection Agency, notified lawmakers last week of his concerns the bill could violate federal standards for water quality.

Lesniak said he hopes a revised bill can be sent to Gov. Jon Corzine before lawmakers take their yearly summer recess.

The full article is linked here.

Assembly Passes Affordable Housing Bill

In a vote essentially along party lines, Assembly Speaker Joseph Roberts’s affordable housing reform bill was passed 45-33. The only “no” vote among the Democratic members of the Assembly was Linda Stender (D-Union), who is running for an open seat in the Republican-leaning 7th Congressional District against State Senator Leonard Lance (R-Hunterdon). One of the major overhalls to the Fair Housing Act in this bill is the elimination of Regional Contribution Agreements, or RCAs, which allow suburban and rural towns to transfer their affordable housing obligations to older suburban and urban areas in exchange for a calculated payment. As a result, all communities, with the exception of five regional planning areas, must provide for their fair share of affordable housing within their municipal boundaries.

According to the Star Ledger:

While ending the RCAs, the bill would raise new funds for construction or rehabilitation of affordable homes by charging developers a 2.5 percent fee on the value of commercial buildings they erect. Of the $163 million the state hopes to raise through the levy, $20 million would be set aside annually to replace the money that was provided by the affluent towns. The remainder would go toward providing affordable housing statewide.

Another $109 million in state realty transfer fee revenue, and an estimated $190 million in development fees already raised but not yet spent by municipalities, also would go toward the housing.

The legislation also would create five areas, each with 25 towns, that would work collectively to provide affordable housing in their regions. In four of those areas — the Highlands, the Pinelands, the Meadowlands and Fort Monmouth — they would seek to place as much of 50 percent of their affordable housing near mass transportation. The fifth area, the Atlantic City region, would have no restrictions on where the housing could be placed.

The legislation also would require that 20 percent of state-assisted development projects, such as transit villages, be set aside for affordable units. It would increase the maximum income to qualify for affordable housing from $63,000 to $87,000 for a family of four, and replace every affordable unit lost through redevelopment with another.

The proposal would create a State Housing Commission to develop an annual strategic housing plan, submit annual reports to the Legislature and require regular publication of affordable housing statistics.

For the full article from the Star Ledger, click here.

Legislative Update: Permit Extension Act Lives, But With Changes

Facing substantial opposition from environmental groups (and, apparently, the Governor’s Office and NJDEP), key provisions of the Assembly version of the proposed Permit Extension Act (A-2867) were eliminated. The bill, as modified, will still be a lifeline that allows builders to extend many local and state approvals which are in peril of expiring until the end of 2010 (the original legislative proposal provided an extension until the end of 2012 and included approvals within the Highland and Pinelands regions).

Municipal officials and industry advocacy groups have joined together to support this legislation due to the difficulty in the current fiscal environment for developers to obtain financing and the overall downturn in the housing and commercial development markets. According to the Home News Tribune:

A legislative committee voted Thursday for a plan to extend the lives of development permits across the state, a move backers hoped would jump-start the economy over objections from environmental groups.

“We compete for business. … New Jersey has to stay competitive,” stressed Assemblyman Louis Greenwald, D-Camden, a sponsor of the ultimate measure that was created by compromise in the Assembly Environment and Solid Waste Committee.

“This is not en environmental bill,” said Assemblyman Joseph Malone III, R-Burlington. “This is about putting people back to work.”

That Democrat Greenwald and Republican Malone testified together before the committee underscored how lawmakers from both major parties support the idea of allowing builders a window to crank up projects that have been delayed because banks have been stingy about lending money.

“It is less bad,” said the Sierra Club’s Jeff Tittel, who spoke for an alliance of developers and others opposing the measure, after the plan was changed.

In its amended form, the bill offers builders a two-year extension on their permits — down from six — and does not apply to protected areas in the northwest Highlands or the Pine Barrens and other protected patches of New Jersey.

The bill moves to the full Assembly for a vote and the State Senate Economic Growth Committee was scheduled to take up the legislation (S-1919) today (Monday, June 16), but the hearing on the bill was postponed at the last minute. It is uncertain whether it will be on their agenda on June 19.

For the full article, click here.

Assembly Poised to Pass Affordable Housing Compromise Bill

On Monday, June 16, the full Assembly is expected to vote on a revised version of A-500, a wide-ranging affordable housing reform bill, which eliminates widespread use of regional contribution agreements (RCAs). The Assembly Appropriations Committee passed the bill, with amendments, on Thursday. Also on Monday, the Senate Budget and Appropriations Committee will take up similar legislation which is the result of a compromise between Assembly Speaker Joseph Roberts and State Senator Ray Lesniak (D-Union). Click here for Assembly Affordable Housing Bill – Revised

According to Saturday’s Star Ledger:

The Roberts-Lesniak legislation is designed to reshape New Jersey’s 20-year affordable housing effort. It would use $20 million of the $80 million to $120 million the state and municipalities hope to raise through a fee on the new commercial development for affordable housing in urban areas, Lesniak said.

The bills would create five zones: the Meadowlands, Fort Monmouth, the Highlands, the Pinelands and Atlantic City. Towns within four of the zones could transfer no more than 50 percent of the housing they are required to provide to a neighboring town. Only the Atlantic City zone would be permitted to exceed the 50 percent cap because of a large demand for affordable housing in the area.

For the full article, click here.

The Home News Tribune also reported on the legislation, calling the bill “a sweeping overhall to the state’s affordable housing policy.” The Home News article also highlighted other proposed changes:

The bill would also levy a new fee — 2.5 percent — on all nonresidential development to finance housing construction or rehabilitation.

If passed, all state-assisted development projects would have to set aside 20 percent of units for affordable housing; 25 percent of affordable housing units would be set aside as “very low income” for families earning 30 percent of the state’s median household income; and developers including affordable housing in their projects would receive density bonuses, meaning they could construct more units than currently allowed.

For the full article, click here.

Pinelands Rezoning Curtails Development

In a joint rezoning effort between the Township of Jackson and the Pinelands Commission, the Asbury Park Press has reported that the commission approved amendments to the township’s zoning ordinances in which approximately 233 acres of land were rezoned to reduce the potential development of approximately 1,400 homes to 28.

According to the article:

In theory, 28 future homes could be built under this zoning. However, there’s also an unusual intergovernment agreement with Manchester that would allow a density transfer onto adjacent tracts, and used to build up to 250 units in planned retirement community construction in Manchester, where sewers are available to serve future homes.

The ordinances cap a four-year effort by Pinelands and local officials to shift future development away from the upper branches of the Toms River, with the aim of preserving water quality and threatened and endangered species in the surrounding forest. The northern pine snake and rare plant species were among the concerns of Pinelands officials, while Jackson’s municipal government has been anxious to reduce future residential development and the coming tax burden from more demands for school and municipal services.