On appeal from the Adoption of Administrative Regulations of the Department of Community Affairs.
Before Judges Muir, Jr., Cuff, and Steinberg.
The opinion of the court was delivered by: Muir, Jr., J.A.D.
Appellants, representing interests of this State's 567 municipalities, challenge the facial validity of regulations for residential site improvement standards promulgated by the Department of Community Affairs (DCA) under the Residential Site Improvement Standards Act (Act). N.J.S.A. 40:55D-40.1 to -40.7. At issue is whether the DCA acted within its delegated authority when it promulgated the regulations. Relying on the zoning power statutorily vested in municipalities and language in the Act, appellants primarily argue the regulations are invalid because they impermissibly intrude on municipal zoning power. Alternatively, they contend certain regulations exceed the DCA's express authority under the Act. We find the regulations facially valid except for N.J.A.C. 5:21-1.5b, which is invalid due to its inconsistency with a Department of Environmental Protection (DEP) regulation.
The New Jersey Constitution vests the Legislature with the authority to enact general laws under which municipalities may adopt zoning ordinances. N.J. Const. art. IV, § 6, ¶ 2. Pursuant to that authorization, the Legislature enacted prior legislation and the current Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129, which authorizes municipalities to adopt ordinances to establish for particular uses reasonable standards for provision of adequate physical improvements, including off-street parking, roadways, and water, sewage, and drainage facilities. See N.J.S.A. 40:55D-65d.
The proliferation of municipal residential site improvement standard ordinances that evolved from that authorization was the stimulus for the Act. The proliferation, with its attendant lack of uniformity, had led to increased costs in residential construction without commensurate gains. See N.J.S.A. 40:55D-40.2a. Municipalities clothed with the authority to zone had engendered such a variety of standards in their ordinances that the Legislature found the need to supplant their discretionary design standards with objective residential site improvement standards. See N.J.S.A. 40:55D-40.2d.
To reach that goal, the Legislature prescribed a format for enactment of the desired uniform regulations dealing with the technical site improvement standards for residential development. See N.J.S.A. 40:55D-40.2e. The Act authorized the establishment, and prescribed the composition, of a Site Improvement Advisory Board (Board). See N.J.S.A. 40:55D-40.3. It charged the Board with implementing a uniform set of standards to be recommended to the DCA Commissioner for promulgation as regulations to supersede all municipal ordinances prescribing residential subdivision and site improvement standards. N.J.S.A. 40:55D-40.3, -40.4, -40.5.
The Act gave the Board precise direction for implementing the recommended standards. It mandated the Board implement the recommended site improvement standards consistent with Article Six and the appended exhibits of the "Model Subdivision and Site Plan Ordinance" (Model Ordinance) prepared by the Rutgers Center for Urban Policy Research. N.J.S.A. 40:55D-40.4a. Where inconsistency between the MLUL and the Model Ordinance occurred, the Act directed the Board to follow the Model Ordinance. Ibid. The Model Ordinance recommendations had to be disregarded only when they were inconsistent with requirements of other laws. Ibid.
The Board, however, had the authority to deviate from the Model Ordinance recommendations. The Act vested the Board with the authority to replace or modify Model Ordinance standards if those deviations were supported by professional or other authoritative sources. Ibid. In another section, the Act provided that nothing contained in it "shall in any way limit the zoning power of any municipality." N.J.S.A. 40:55D- 40.6. It is the latter provision which fuels appellants' primary contention.
Article Six of the Model Ordinance is entitled "Improvement Standards." Its purpose is to provide desirable living environments in residential developments without unnecessarily adding to development costs. Like the Act which defines "site improvements" as streets, roads, parking facilities, sidewalks, drainage structures, and utilities, N.J.S.A. 40:55D-40.1, the Model Ordinance identifies streets and circulation, off-street parking, water supply, sanitary sewers, and storm water management as required improvements. N.J.A.C. 5:21-1.4.
Generally, the Model Ordinance delineates the standards for the designing, planning, and constructing of residential improvements. In some instances, such as sanitary sewers, the standards extend to modification and operation of treatment works.
The Rutgers Center document delineates standards for each required improvement. Under the street category, it classifies streets into a hierarchical system based essentially on intensity of use definitions for each type. The Model Ordinance language and exhibits attached identify the street classification criteria for right-of-way profiles and for construction specifications. Some exhibits specifically address standards for relative strengths of paving materials and for subgrade evaluation. Others set out model pavement sections for the different categories of streets based on such factors as the quality of the subgrade. The Model Ordinance also factors in topographical conditions as part of the construction criteria.
Within the general street category, the Model Ordinance prescribes standards for design and construction of cartway width (traveled way), curbs and gutters, shoulders, sidewalks, bikeways, utility and shade tree areas, measurement of right-of-way, street grade and intersections, pavement design and thickness, lighting, underground wiring for all utilities, and signs. Some of these standards are correlated with street classifications. Again, there are exhibits which not only identify profiles but also identify the construction specifications for each of the enumerated improvements. Similar standards with extensive detail set out ...