Ms. Mary Ellen Handelman
Division of Codes and Standards
Department of Community Affairs
CN 802
Trenton, New Jersey 08625-0802
Fax #: (609)633-6729
Re: Comments on Proposed New Rules: N.J.A.C. 5:21 Residential Site Improvement Standards
Dear Ms. Handelman:
Although the DCA's Site Improvement Advisory Board deserves much credit for assembling technical standards appropriate for many of our state's suburban communities, Thonet Associates recommends against the adoption of these standards. Our reasons include the following.
The stated purpose of the new rules is to promote predictability and efficiency in the development process. The proposed rules, however are replete with bureaucratic procedures that will cause considerable delays and increased costs in reviewing development applications. We provide the following examples.
5:21-3.2 Waiver Request: In this section, the rules establish a procedure in which either a municipality or a developer can request a waiver of a specific standard from the DCA. The Commissioner has 20 days to make a preliminary review of the request to determine if adherence to the standard would jeopardize public health or safety. If the Commissioner deems the request acceptable, he directs it to the Site Improvement Advisory Board's technical committee that renders its decision within 30 days. The Site Improvement Advisory Board hears appeals of decisions during regularly scheduled public sessions or special meetings.
Local site plan and subdivision review procedures currently include provisions for waivers. It does not take significantly longer to hear an application with a few waivers than to hear one that has no waivers, and frankly, nearly all applications request a waiver or two.
The procedures proposed in the new rules add another layer of governmental review to an already cumbersome approval process. Increased review times and increased costs will result for nearly all applications.
5:21-3.5 Special area standards: This section provides a procedure by which a municipal approving authority may develop and recommend supplementary standards to the Site Improvement Advisory Board. Special areas are areas of a municipality exhibiting a distinctive character that the municipality has identified by ordinance and expressed a desire to preserve and enhance. Examples of special areas may include:
- Redevelopment Areas;
- Special Improvement Districts;
- Historic Districts;
- Centers, villages, hamlets or other communities of place;
- Infill Areas;
- Planned unit developments, planned unit residential developments and residential clusters; and
- Areas of Special Environmental Significance.
The reason that the new rules find it necessary to permit alternative standards for special areas is simply that no one set of standards is appropriate for each an every community and situation in New Jersey.
Of course, municipalities already have the right to identify special areas in the Land Use Elements of their Master Plans and have the right to "tailor" their standards to meet the specific needs of these special areas. All that the proposed rules do is add yet another layer of government to this process, and make it more difficult for municipalities to perform their responsibilities to plan for the development of special areas, as required of them by the Municipal Land Use Law.
5:21-3.6 Agreement to exceed standards: This section provides a procedure by which the standards can be exceeded, as long as both the municipality and the developer agree. I can think of no situation in which the developer would voluntarily agree to exceed the standards. However, even if alternate standards are agreed upon, it would still be necessary to submit the agreement to the DCA to be reviewed for consistency with the intent and purpose of the new rules. This is one more instance of needlessly adding another layer of government to the development process.
5:21-3.1 Exceptions: In this section the rules establish a procedure in which a municipal approving authority may grant de minimis exceptions from the site improvement standards. Under these rules any applicant, municipal officer, or municipal agency can request an exception and present the arguments supporting that request.
If the municipal approving authority approves the exception, however, a copy must be filed with the New Jersey DCA, a requirement that does not currently exist for such de minimis exceptions to site development standards.
The above sections of the proposed rules create time consuming procedures that will delay and add cost to the development process.
The reason given by the State for standardizing residential development is "to promote predictability and efficiency in the development process." In other words, the purpose of the proposed rules is to make it easier and less costly to develop lands for residential uses.
This is not an appropriate reason for adopting land use standards. The foremost purpose of standards must be to promote and protect the public health, safety and welfare, not to make it easier for development projects to go forward. Standards proposed should be the minimum necessary to ensure public health, safety and welfare. Where public health, safety and welfare concerns demand stricter standards, such standards should apply.
The proposed standards, however, are not minimum standards. They are maximum standards. Incredibly, the new rules require that the a municipality have the agreement of the developer before the new rule's standards can be increased to further the interests of public health, safety and welfare (5:21-3.6, Agreement to exceed standards). We ask "Who is regulating whom?"
For the above reasons, the proposed rules are clearly not in the public interest. In addition, though I am not a lawyer, I would seriously question the legal basis for requiring municipalities to have the agreement of private developers before additional standards needed to protect public, health, safety and welfare, can be required.
Article 6 of the Municipal Land Use Law (MLUL) grants municipal governing bodies the power to write site plan and subdivision ordinances that provide "...standards for preliminary and final approval..." (C. 40:55D-38). The MLUL specifically directs municipalities to draft ordinances with provisions "...governing the standards for grading, improvement and construction of streets or drives and for any required walkways, curbs, gutters, street lights, shade trees, fire hydrants and water, and drainage and sewerage facilities and other improvements as shall be found necessary..." These standards, of course, are intended to further the purposes of the MLUL.
The proposed rules pre-empt these powers. Nonetheless, municipalities are still responsible for enforcing the standards that the State has decreed, but have no rights to modify or grant relief from those standards.
The new rules establish a major State regulatory program. The DCA expects New Jersey municipalities to administer this State regulatory program at their own expense, as if these were municipal standards drafted under the MLUL. In my opinion, the State of New Jersey has simply, and improperly, taken rights away from its individual municipalities. The DCA's new rules are detrimental to the purposes of the MLUL and benefit only the development community.
The State should be responsible for enforcing its own regulations. If the State would like its municipalities to enforce State regulations, the State should provide funding to its municipalities for this purpose.
Zoning regulations and accompanying technical standards can not be separated. Both are important regulatory tools and both must be designed to achieve the individual goals and objectives of each municipality as expressed in their Master Plans. Each municipality's environmental protection and preservation goals are important factors in drafting its land use regulations and technical standards, and each community's zoning ordinances and standards must be tailored to fit the physical and environmental characteristics of each community. This fundamental concept, contained within the Municipal Land Use Law, is ignored by the proposed standards.
The proposed regulations standardize the technical rules for all municipalities in direct contradiction to the Municipal Land Use Law. Examples of areas for which the standards are inappropriate include:
The Great Swamp Watershed is a good example of an "area of special environmental significance." This watershed is home to the Great Swamp National Wildlife Refuge and Wilderness Area and has been subject to years of study on how best to protect it from the adverse environmental impacts of land development. In particular, special stormwater management measures have been identified as key to the Great Swamp's preservation and NJDEP has established a policy of "No Net Increase" in stormwater runoff rates, volumes and non-point source pollutants, to protect this important environmental resource.
The "No Net Increase" standards exceed the maximum standards permitted by the proposed rules, and yet are necessary to meet federal and state antidegradation policies regarding surface water quality in the Great Swamp. Accordingly, the new rules are clearly insufficient for the Great Swamp Watershed, and alternative standards are required.
The "No Net Increase" standards are equally applicable to any community whose rivers and streams are only moderately impacted by past land development activities. Such areas include most rural and exurban communities and most low density suburban communities as well. The stormwater management standards proposed by the new rules, however, preclude the application of the "No Net Increase" approach and the standards that are proposed are insufficient to prevent significant impacts to the States surface waters due to land development. (See attached information on the "No Net Increase" approach to stormwater management, including a Model Stormwater Management Ordinance. [Not currently at this Web site. We are working on it. --JM])
Similar arguments regarding negative environmental and economical consequences of the proposed rules apply to historic districts, urban centers and infill developments, where the typical suburban standards proposed are simply inappropriate. Enforcing unnecessary standards in these special areas increases development costs and negatively affects the established character of these areas.
While the new rules do provide ways to deal with "special areas," the procedures provided are cumbersome, costly and time consuming and serve only to pre-empt local planning procedures that already handle these special areas by tailoring municipal standards as necessary.
Our review of the proposed standards reveals that they are similar to technical standards already in place in municipalities throughout New Jersey. For example, as township's planning consultants, Thonet Associates updated Lafayette Township's subdivision and site plan ordinances in 1989, using the January 1987 Model Subdivision and Site Plan Ordinance as a general guide, and tailoring the standards recommended therein to the specific needs and desires of the Township.
Lafayette's updated ordinances are very similar to those proposed by the new rules. Indeed, most municipal land development ordinances with which we are familiar are similar to those proposed by the new standards. The reason for this is that New Jersey municipalities are responsible for administering the Municipal Land Use Law and they take that responsibility seriously.
The proposed rules provide no net benefit regarding public health, safety and welfare. The existing municipal standards already provide these benefits, in many cases, better than the proposed standards do.
The proposed rules are a useful compilation of standards commonly used in many suburban communities throughout the state. It would be a valuable reference to such municipalities as "guidelines" rather than state enforced "standards."
I recommend that the proposed new rules not be adopted and that, instead, they be provided as guidelines for developing suburban communities.
Very truly yours,
Thonet Associates, Inc.
John A. Thonet, PE, PP
cc: Governor Christine Todd Whitman
Ms. Harriet Derman, Commissioner, DCA
Thonet Associates, Inc., is a land development consulting firm specializing in environmental planning and design for private development projects and governmental planning programs. The firm has provided these services in New Jersey for sixteen years and has provided consulting services for over 800 projects in over 100 New Jersey municipalities, as well as in over a dozen other States and U. S. Territories.
John A. Thonet, has twenty-four years of experience in land development planning and engineering. He is a licensed professional engineer in New Jersey, Massachusetts, West Virginia and Michigan and a licensed professional planner in New Jersey. Mr. Thonet holds B.S. and M.S. Degrees in Forest Engineering (Forestry/Civil Engineering) from the S.U.N.Y. College of Environmental Science and Forestry at Syracuse.
Thonet Associates combines its knowledge of environmental science, civil engineering, and land use planning for planning and designing land development projects and planning programs aimed at maximizing land development and environmental preservation opportunities. The majority of our clients are private developers, institutions, and commercial and industrial property owners. Nonetheless, we regularly provide consulting services to municipal and county agencies and have also served as consultants to such well known environmental organizations as the Great Swamp Watershed Association, the Association of New Jersey Environmental Commissions, the Schiff Natural Lands Trust and numerous municipal environmental commissions.