This article is the third in a series that deals with the legal implications of Superstorm Sandy, which devastated many areas of New Jersey on October 29, 2012. The resulting widespread power outages crippled many businesses which serve the public by providing essential services. To prevent that situation from recurring, a number of bills have been introduced in the New Jersey legislature which would require a variety of private businesses and facilities to install standby generators.
The most comprehensive of the bills, called the New Jersey Residents’ Power Protection Act and designated as A-3495, requires that "facilities and businesses…which provide critical and unique services that are vital to public safety and economic recovery during times of widespread power loss due to a natural disaster or other catastrophic event…have secondary sources of power.” These entities include newly constructed grocery stores (including supermarkets and convenience marts); gas stations; nursing homes, assisted living facilities, and subacute rehabilitation facilities; first aid, ambulance, and rescue squads; pharmacies; firehouses; and boarding houses. To offset the cost of implementation, the bill establishes a corporation business tax deduction and gross income tax deduction (maximum of $10,000), and a sales tax exemption, for the purchase of equipment.
A similar bill, designated as A-3064, would require installation and use of generators by specified eligible businesses, defined to encompass retail motor fuel dealers, motor fuel wholesalers, motor fuel terminal facilities, motor fuel refineries, nursing homes, assisted living facilities, subacute rehabilitation facilities, and newly constructed grocery stores. The New Jersey Economic Development Authority would be required to offer low-interest loans to these businesses to facilitate acquisition and installation of generators.
A number of other pending bills apply to only specific facilities and businesses:
- Grocery and convenience stores (newly constructed stores only) (A-3486 and S-2357);
- Gas stations (existing and newly constructed stations) (A-3473 and S-3484, also A-3563 and S-2361);
- Senior housing and/or disabled housing (newly constructed only) (A-1632 and S-402, also S-2372);
- Senior residential multiple dwellings (existing and newly constructed) (A-3569);
- Retirement community (existing and newly constructed) (A-3479 and S-2341);
- Assisted living residences and certain other licensed residential health care facilities (existing and newly constructed) (A-2860, A-3514).
Although the circumstances which gave rise to this legislation illustrated the need for better emergency preparedness, these bills as written do not address issues concerning zoning compliance and the applicable approvals process for the installation of generators. There is no blanket exemption in any of the proposed legislation from zoning and site plan approval requirements. Therefore, those issues will have to be addressed on a site-specific basis from one municipality to another, unless the legislation is amended to establish a statewide set of uniform requirements. Some of the issues that businesses will need to consider and address are:
- Is a generator a permitted accessory use in the municipal zoning ordinance, either expressly or through language allowing customary, subordinate and incidental accessory uses and structures?
- Do setback requirements in the municipal zoning ordinance apply to generators?
- Will impervious coverage be increased due to installation of a generator?
- Does the site configuration have to be changed to accommodate siting of a generator by, for example, eliminating parking spaces or landscaped areas (which could result in the site becoming non-compliant), or does the generator’s location require modifying access, circulation, loading or trash collection areas?
- If the generator can be placed on the roof, will it violate height limitations, and is screening required?
- If the generator can be placed within the building, is that area exempt from floor area ratio limitations and parking requirements?
- Will the generator, when operational, violate municipal noise ordinances or the Noise Control Act of 1971, N.J.S.A. 13:1G-1 et seq., and its implementing regulations, N.J.A.C. 7:29-1.1 et seq.?
- For existing facilities, does installation of a generator require site plan approval and the public hearing process which typically accompanies site plan review?
- If a generator is required for a particular facility by state law, can a municipal planning board or zoning board of adjustment deny it based on aesthetic or other site plan considerations? And in the event of a denial, can the business be penalized for not having installed a generator?
These issues can be addressed more easily for newly constructed facilities, particularly those which have not yet secured site plan approval. But for approved facilities that have not yet obtained a construction permit, amended land use approvals may be required. And for facilities already in operation, particularly those in older buildings, those on properties which already exceed impervious coverage requirements, or those in municipalities with restrictive zoning regulations, compliance may be particularly challenging and may create deviations from local zoning requirements and the resulting need to apply for and obtain variances through costly and time-consuming public hearing proceedings.
Many of these issues appear to have been overlooked in the process of introducing legislation quickly in the aftermath of Superstorm Sandy. If you operate a business or facility which would be required to install a generator if this legislation becomes law, it would be wise to evaluate these considerations, determine how they may impact your business or facility, and consider whether to oppose the legislation or seek amendments to it through the legislative process. For answers to questions regarding your specific situation and the issues it presents, please feel free to contact an attorney in the Gibbons Real Property & Environmental Department or the Gibbons Government Affairs Department.
Howard D. Geneslaw is a Director in the Gibbons Real Property & Environmental Department.