Experienced New Jersey developers and land use attorneys understand the challenges that face an applicant when the proposed use is not expressly permitted in the municipality’s zoning district where the subject property is located. The challenge is only more complicated if the proposed use involves novel or unfamiliar technology such as renewable energy. However, in New Jersey, the government has been proactive in welcoming renewable energy projects through grants and legislation, making New Jersey definitely the place to be if you want to develop property geared towards the creation of a renewable energy facility powered by solar or wind.
The New Jersey Municipal Land Use Law (“MLUL”) has shed a ray of sunshine onthose developers who wish to construct a solar or wind renewable energy facility. Developers of a solar or wind renewable energy facility must be aware of N.J.S.A. 40:55D-66.11. This section of the MLUL expressly holds that a municipality must permit as-of-right the construction of a renewable energy facility when the subject property is located in one of the municipality’s industrial districts. The only conditions being that the property (or properties) be: (1) comprised of 20 or more contiguous acres; and (2) under common ownership. The statute defines “renewable energy facility” as a “facility that engages in the production of electric energy from solar technologies, photovoltaic technologies, or wind energy.”
Although this statute may seem clear on its face, it does raise some questions for land use attorneys and developers.
- First, what if a property satisfies the acreage and ownership requirements, does the sole use contemplated for the property need to be a renewable energy facility (i.e. a solar farm)?
- Second, can a renewable energy facility be deemed an accessory use or structure to a principal use that is pre-existing on the subject property?
- Third, does the renewable energy facility have to produce energy to a certain amount of users or can it be for a single user?
All of these questions remain unanswered as the development of renewable energy facilities in New Jersey remains in its infancy. This land use attorney foresees litigation over these unanswered questions on the horizon as local land use boards and zoning officials will have to make critical determinations on whether “use variances” are required despite the fact that the MLUL has been amended to facilitate the development of these types of projects.
Land use attorneys should be aware of this recent amendment to the MLUL because it supersedes municipal zoning laws which may not expressly permit renewable energy facilities in the zone where the subject property is located. Developers seeking out properties for their next solar project should always keep in mind that if a property satisfies the criteria set forth in N.J.S.A. 40:55D-66.11, the land use approval process may become a lot easier and possibly more resistant to challenges on an appeal of the approval by a third-party objector.