Gibbons Law Alert

Gibbons Law Alert

Tagged: Zoning & Permitting

Sweeping Affordable Housing Reform Signed Into Law in New Jersey

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Posted in Affordable Housing / Environmental and Green Issues / Transactional Real Estate and Leasing

On March 25, 2024

On March 20, 2024, Governor Phil Murphy signed what could be the most significant and impactful affordable housing reform legislation in New Jersey since the original enactment of the Fair Housing Act (FHA) in 1985 in A4/S50 (the “Law”). After the New Jersey Supreme Court declared the Council on Affordable Housing (COAH) “moribund” in 2015, municipalities and developers, as well as interested advocacy groups, have been engaged in constitutional compliance litigation in an attempt to determine how best to create realistic opportunities for the construction of affordable housing. These various cases resulted in a large number of settlements across the state, with some very public and prolonged litigation still pending.

Governor Murphy Announces First-in-the-Nation Environmental Justice Rules

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Posted in Development/Redevelopment / Environmental and Green Issues

On April 20, 2023

On Monday, April 17,  2023, New Jersey Governor Phil Murphy announced the adoption of the New Jersey Department of Environmental Protection’s (DEP) Environmental Justice Rules (EJ Rules) implementing New Jersey’s landmark Environmental Justice (EJ) Law signed in 2020. The EJ Law and implementing rules are the first in the nation aimed at reducing pollution in historically overburdened communities that have been subjected to a disproportionately high number of environmental and public health stressors. In his announcement, Governor Murphy stated, “As we enter Earth Week 2023, the final adoption of DEP’s EJ Rules will further the promise of environmental justice by prioritizing meaningful community engagement, reducing public health risks through the use of innovative pollution controls, and limiting adverse impacts that new pollution-generating facilities can have in already vulnerable communities.” DEP Commissioner Shawn M. LaTourette added that, “With the adoption of the nation’s first EJ Rules, New Jersey is on a course to more equitably protect public health and the environment we share.” Under the new rules, which are effective immediately, state environmental officials considering permit requests of eight specific types of facilities must include impacts to residents of affected communities in their decision-making process. The eight types of facilities that must comply with the new EJ Rules are: gas-fired power plants, cogeneration facilities, and other...

New Jersey Adopts Private Construction Inspection Bill

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Posted in Development/Redevelopment

On February 8, 2023

On January 5, 2023, New Jersey Governor Phil Murphy signed into law Assembly Bill 573, which authorizes private inspections under the State Uniform Construction Code (UCC) Act, upon the satisfaction of certain conditions (the “Act”). The New Jersey Department of Community Affairs (DCA) now has six months to propose rules to effectuate the provisions of the Act and three months thereafter to adopt those rules. The Act is a result of efforts throughout the commercial real estate industry to address the growing shortage of available municipal code inspectors and recent increased demand for inspections due to the high frequency of construction activity throughout the state, as well as an ongoing backlog due to COVID-19 staffing shortages. There is consensus within the industry that the processes codified within the Act will minimize project disruptions and delays and create a more streamlined construction inspection process, in order to expedite the timely construction and occupancy of inclusionary housing and non-residential development alike. The Act creates a new process by which private inspectors can perform required construction inspections under the UCC. Once work undertaken pursuant to a construction permit is ready for any required inspection under the UCC, the owner, agent, or other person in charge of the work (collectively, the “Owner”) shall notify the enforcing agency (presumably the...

New Jersey Adopts 2021 International Building Code and Grace Period for Permit Applications

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Posted in Development/Redevelopment

On January 26, 2023

The New Jersey Department of Community Affairs (DCA) has recently amended the Building Subcode of the Uniform Construction Code (UCC) to incorporate the 2021 Edition of the International Building Code (IBC). Builders, developers, and others currently applying for construction permits should be aware of the provision within the UCC that provides for a grace period from application of the newly adopted regulations until March 6, 2023. On April 18, 2022, DCA posted in the New Jersey Register proposed amendments to the Building Subcode, located within the New Jersey Administrative Code at N.J.A.C. 5:23-3.14, to incorporate the 2021 Edition of the IBC. The model codes for buildings, which include residential and commercial structures, energy, fire protection, mechanical, and fuel gas, are published by the International Code Council, and DCA proposes and adopts the model codes as part of the UCC. Since 1996, DCA has undertaken a review of each subsequent model code edition and has proposed and adopted the new edition of the national model codes. The most recently adopted amendments to the UCC’s Building Subcode incorporate the 2021 edition of the IBC. The Building Subcode amendments were adopted on September 6, 2022. Of particular importance to builders and developers, the UCC contains a grace period provision at N.J.A.C. 5:23-1.6, which provides that for a period...

Legislative Update: NJ Legislature Passes Proposed Legislation Extending Outdoor Dining to 2024

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Posted in Legislation Updates / Zoning and Permitting

On July 8, 2022

On June 29, the New Jersey Legislature unanimously passed Bill S2364 ScaAa (2R), which would extend the outdoor dining and drinking privileges allowed under P.L. 2021, c.15, from November 30, 2022 to November 30, 2024. As amended, the bill would extend by two years, until 11:59 P.M. on November 30, 2024, the time period during which certain restaurants, bars, distilleries, and breweries would be allowed to use a public sidewalk or outdoor spaces which they own or lease and are located either on or adjacent to their business premises as an area for the purpose of conducting food and beverage sales. Current law authorizing such uses expires on November 30, 2022. The bill would also provide that the use of tents, canopies, umbrellas, tables, chairs, or other fixtures be deemed a permitted use for the time period from the first day of April through the close of business on November 30 for each additional year in which this law is in effect. Any administrative rule or regulation that limits the use of these fixtures to 180 days or less would be inapplicable during the effective time of the law. Any administrative rule or regulation governing the use of outdoor fixtures on private or public property, or right of way designated by a municipality, between the...

NJDEP Issues Rule Proposal Implementing Environmental Justice Legislation

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Posted in Environmental and Green Issues

On June 21, 2022

On June 6, 2022, the New Jersey Department of Environmental Protection (NJDEP) issued its proposed rule (“Rule Proposal”) implementing regulations under the groundbreaking Environmental Justice Law (“EJ Law”) signed by Governor Phil Murphy in September of 2020, which we reported on at that time. The EJ Law requires the NJDEP to evaluate the environmental and public health impacts of certain facilities on vulnerable communities (referred to as Overburdened Communities (“OBCs”)) when reviewing certain permit applications. We also reported that on October 22, 2020, the NJDEP began the public process of developing regulations to implement the requirements under the EJ Law. The Rule Proposal was the culmination of an extensive and lengthy public process that included numerous meetings with various stakeholders. The next step is a 90-day public comment period expiring on September 4, 2022, during which time the NJDEP will hold four public hearings in the month of July. In the EJ Law, the Legislature had determined that all residents of the state of New Jersey, regardless of income, race, ethnicity, color, or national origin, have a right to live, work, learn, and recreate in a clean and healthy environment. The Legislature further found that the OBCs have been, and continue to be, subject to a disproportionately high number of environmental and public health stressors,...

USEPA Provides Draft Guidance on Application of “Functional Equivalent” Analysis for Clean Water Act Permitting Program

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Posted in Environmental and Green Issues

On December 16, 2020

The United States Environmental Protection Agency (USEPA) issued a Draft Guidance Memorandum regarding how to apply the Supreme Court’s most recent Clean Water Act decision in County of Maui v. Hawaii Wildlife Fund from earlier this year. In that case (which we previously wrote about here and here), the Court held that the Clean Water Act Section 402 National Pollutant Discharge Elimination System (NPDES) program requires a permit where there is a “functional equivalent of a direct discharge” from a “point source” into “navigable waters.” As the USEPA draft guidance notes, the Court’s decision outlines “seven non-exclusive factors that regulators and the regulated community may consider in determining whether a “functional equivalent of a direct discharge” exists in a particular circumstance. The draft guidance aims to place the functional equivalent standard “into context within existing NPDES permitting framework.” Additionally, the draft guidance “identifies an additional factor” relevant to the analysis. The draft guidance emphasizes that the County of Maui decision did not modify the two threshold conditions that trigger the requirements for a permit. These conditions are that there must be an actual discharge of a pollutant to a water of the United States, and that that discharge must be from a point source. “Instead, Maui clarified that an NPDES permit is required for only...

NJABC Extends Time Period for COVID-19 Expansion Permit

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Posted in Liquor Licensing

On October 30, 2020

On October 19, 2020, the New Jersey Division of Alcoholic Beverage Control (“Division”) issued a new special ruling (the “October Special Ruling”) that allows the currently issued COVID-19 Expansion of Premises Permit (“COVID-19 Expansion Permit”) to be extended to March 31, 2021. We previously discussed the Division’s special ruling issued on June 3, 2020 (the “June Special Ruling”) that coincided with Governor Murphy’s Executive Order No. 150, which allowed licensees or permittees with on-premises retail consumption privileges to reopen and serve patrons in “outdoor areas.” The COVID-19 Expansion Permit established through the June Special Ruling allowed licensees and permittees to expand their licensed premises into outdoor areas, either contiguous or non-contiguous to their permanently licensed premises. Applications for an extension of the COVID-19 Expansion Permit will be available later this month and must be submitted no later than November 23, 2020. The June Special Ruling originally set the expiration of the COVID-19 Expansion Permit as November 30, 2020. However, due to the continuing effect of the COVID-19 pandemic on the alcoholic beverage industry, and the continued requirements for indoor capacity limits and social distancing, the Division found it appropriate to allow licensees to apply to renew the COVID-19 Expansion Permits. The Division noted that, to date, it has issued more than 2,300 COVID-19 Expansion Permits....

Jordan Asch to Participate in Upcoming NJSBA Panel Discussion – “Resolving Everyday Environmental Problems” – November 5

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Posted in Environmental and Green Issues

On October 29, 2020

Jordan M. Asch, an Associate in the Gibbons Environmental Department, will participate in an upcoming panel discussion presented by the New Jersey State Bar Association, in cooperation with its Environmental Law Section. The panel, “Resolving Everyday Environmental Problems,” will take place virtually on Thursday, November 5 from 9:00 – 10:30 am. The discussion will cover some of the complex, and often expensive, environmental issues that small businesses and homeowners may face, including site remediation issues, funding sources, environmental permitting, and the permitting process. Attorneys who represent small business owners that own or lease real property, or that may develop or improve real property, as well as homeowners that may face environmental remediation or permitting issues are encouraged to attend. For additional information or to register, click here.

NJDEP Solicits Input as It Begins Process of Drafting Regulations to Implement Landmark Environmental Justice Legislation

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Posted in Environmental and Green Issues

On October 27, 2020

As we reported, New Jersey Governor Phil Murphy recently signed the nation’s first environmental justice law, which seeks to address the unfair distribution of the environmental and public health impacts of polluting activities by imposing additional requirements on parties seeking to site, expand, or renew permits for various types of facilities in “overburdened communities,” which are defined in the statute in terms of economic and demographic criteria. The statute requires the New Jersey Department of Environmental Protection (NJDEP) to promulgate regulations to implement its requirements. NJDEP began the public process of developing those regulations on October 22 when Olivia Glenn, Deputy Commissioner for Environmental Justice and Equity, and Sean Moriarty, Chief Advisor for Regulatory Affairs, hosted an online public information session in which they sought the public’s input on how the regulations should address numerous definitional and procedural issues. (The statute will not take effect until NJDEP promulgates its regulations.) Companies seeking to obtain or renew certain NJDEP permits for new or expanded facilities that fall within the statute’s scope and are located in overburdened communities must prepare an “environmental justice impact statement” and provide for expanded public hearings on their project. In addition to applying the requirements of other applicable statutes and regulations, NJDEP must then determine if the proposed new or expanded facility...

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