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New Jersey State League of Municipalities v. Department of Community Affairs and Jane M. Kenny

May 13, 1999

NEW JERSEY STATE LEAGUE OF MUNICIPALITIES; AN ORGANIZATION OF MUNICIPALITIES; BOROUGH OF ELMER, A MUNICIPAL CORPORATION; TOWNSHIP OF PLAINSBORO, A MUNICIPAL CORPORATION; CITY OF PATERSON, A MUNICIPAL CORPORATION; GEORGE FERENSICK, AN INDIVIDUAL; ABSECON CITY; ALLOWAY TOWNSHIP; BERKELEY HEIGHTS TOWNSHIP; BERLIN BOROUGH; BERNARDS TOWNSHIP; BERNARDSVILLE BOROUGH; BOGOTA BOROUGH; BOONTON TOWN; BRANCHBURG TOWNSHIP; BUENA VISTA TOWNSHIP; BURLINGTON CITY; CALIFON BOROUGH; CAPE MAY POINT BOROUGH; CHATHAM BOROUGH; CHESTER TOWNSHIP; CLINTON TOWNSHIP; CLOSTER BOROUGH; COLLINGSWOOD BOROUGH; COLTS NECK TOWNSHIP; CRANBURY TOWNSHIP; DELAWARE TOWNSHIP; DUMONT BOROUGH; EAST BRUNSWICK TOWNSHIP; EASTAMPTON TOWNSHIP; ELSINBORO TOWNSHIP; EMERSON BOROUGH; ENGLEWOOD CLIFFS BOROUGH; ESSEX FELLS BOROUGH; EVESHAM TOWNSHIP; FAIR LAWN BOROUGH; FAIRFIELD TOWNSHIP; FARMINGDALE BOROUGH; FLORHAM PARK BOROUGH; FRANKLIN TOWNSHIP (HUNTERDON COUNTY); FREEHOLD TOWNSHIP; FRELINGHUYSEN TOWNSHIP; FRENCHTOWN BOROUGH; GIBBSBORO BOROUGH; GREEN BROOK TOWNSHIP; HACKENSACK CITY; HADDON TOWNSHIP; HADDONFIELD BOROUGH; HALEDON BOROUGH; HAMBURG BOROUGH; HAMILTON TOWNSHIP (ATLANTIC COUNTY); HAMILTON TOWNSHIP (MERCER COUNTY); HAMPTON TOWNSHIP; HARDING TOWNSHIP; HARDYSTON TOWNSHIP; HAZLET TOWNSHIP; HIGHLAND PARK BOROUGH; HILLSDALE BOROUGH; HOPATCONG BOROUGH; KEYPORT BOROUGH; LAFAYETTE TOWNSHIP; LAVALLETTE BOROUGH; LAWRENCE TOWNSHIP (CUMBERLAND COUNTY); LAWRENCE TOWNSHIP (MERCER COUNTY); LEBANON BOROUGH; LINCOLN PARK BOROUGH; LITTLE EGG HARBOR TOWNSHIP; LITTLE SILVER BOROUGH; LIVINGSTON TOWNSHIP; LODI BOROUGH; LONG BRANCH CITY; LOWER ALLOWAYS CREEK TOWNSHIP; LUMBERTON TOWNSHIP; MAHWAH TOWNSHIP; MANALAPAN TOWNSHIP; MANASQUAN BOROUGH; MANCHESTER TOWNSHIP; MANNINGTON TOWNSHIP; MIDDLESEX BOROUGH; MILLBURN TOWNSHIP; MILLSTONE TOWNSHIP; MILLVILLE CITY; MONTVALE BOROUGH; MONTVILLE TOWNSHIP; MOORESTOWN TOWNSHIP; MOUNT OLIVE TOWNSHIP; NEPTUNE TOWNSHIP; NEW PROVIDENCE BOROUGH; NEWTON TOWN; NORTH BRUNSWICK TOWNSHIP; NORTH CALDWELL BOROUGH; NORTH HALEDON BOROUGH; NORTH HANOVER TOWNSHIP; OAKLAND BOROUGH (BERGEN COUNTY); OGDENSBURG BOROUGH; OLD BRIDGE TOWNSHIP; OLD TAPPAN BOROUGH; OLDMANS TOWNSHIP; ORADELL BOROUGH; PARK RIDGE BOROUGH; PARSIPPANY-TROY HILLS TOWNSHIP; PAULSBORO BOROUGH; PENNS GROVE BOROUGH; PENNSVILLE TOWNSHIP; PILESGROVE TOWNSHIP; PINE HILL TOWNSHIP; PITTSGROVE TOWNSHIP; PLUMSTED TOWNSHIP; QUINTON TOWNSHIP; RAMSEY BOROUGH; RANDOLPH TOWNSHIP; READINGTON TOWNSHIP; RED BANK BOROUGH; RIDGEFIELD PARK VILLAGE; RIDGEWOOD VILLAGE; RIVER VALE TOWNSHIP; RIVERDALE BOROUGH; ROOSEVELT BOROUGH; ROSELAND BOROUGH; SADDLE RIVER BOROUGH; SALEM CITY; SAYREVILLE BOROUGH; SCOTCH PLAINS TOWNSHIP; SEA BRIGHT BOROUGH; SHREWSBURY BOROUGH; SOUTH BRUNSWICK TOWNSHIP; SOUTH PLAINFIELD BOROUGH; SOUTH RIVER BOROUGH; STAFFORD TOWNSHIP; STONE HARBOR BOROUGH; SUMMIT CITY; TEANECK TOWNSHIP; TENAFLY BOROUGH; UPPER FREEHOLD TOWNSHIP; UPPER PITTSGROVE TOWNSHIP; UPPER SADDLE RIVER BOROUGH; UPPER TOWNSHIP; VOORHEES TOWNSHIP; WALL TOWNSHIP; WASHINGTON TOWNSHIP (BERGEN COUNTY); WASHINGTON TOWNSHIP (GLOUCESTER COUNTY); WASHINGTON TOWNSHIP (MERCER COUNTY); WATCHUNG BOROUGH; WAYNE TOWNSHIP; WEST AMWELL TOWNSHIP; WEST CALDWELL TOWNSHIP; WEST LONG BRANCH BOROUGH; WEST WINDSOR TOWNSHIP; WESTAMPTON TOWNSHIP; WESTFIELD TOWN; WESTWOOD BOROUGH; WILDWOOD CITY; WILDWOOD CREST BOROUGH; WOODCLIFF LAKE BOROUGH; WOOD-RIDGE BOROUGH; WOODSTOWN BOROUGH; WYCKOFF TOWNSHIP; ASSOCIATION OF ENVIRONMENTAL AUTHORITIES; MUNICIPAL CLERKS ASSOCIATION OF NEW JERSEY, INC.; NEW JERSEY PLANNING OFFICIALS, INC; NEW JERSEY INSTITUTE OF MUNICIPAL ATTORNEYS; NEW JERSEY MUNICIPAL MANAGEMENT ASSOCIATION AND NEW JERSEY SOCIETY OF MUNICIPAL ENGINEERS, INC., APPELLANTS-APPELLANTS,
v.
DEPARTMENT OF COMMUNITY AFFAIRS AND JANE M. KENNY, COMMISSIONER, RESPONDENTS-RESPONDENTS.



The opinion of the court was delivered by: Stein, J.

Argued January 20, 1999

On certification to the Superior Court, Appellate Division, whose opinion is reported at 310 N.J. Super. 224 (1998).

This appeal presents a challenge to the validity of regulations promulgated by the Department of Community Affairs (DCA) pursuant to the Residential Site Improvement Standards Act, N.J.S.A. 40:55D-40.1 to -40.7. Those regulations establish a uniform set of site improvement standards for residential development. The primary issue before us is whether the standards impermissibly limit the zoning power of New Jersey's municipalities. We also consider the ancillary issue of whether the DCA and the DCA Commissioner exceeded their delegated authority in adopting certain portions of the regulations.

I.

In 1976, the Legislature enacted the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129. The MLUL was intended, in part, "[t]o encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare" and "[t]o ensure that the development of individual municipalities does not conflict with the development and general welfare of neighboring municipalities, the county and the State as a whole." N.J.S.A. 40:55D-2(a), -2(d).

The MLUL authorizes municipalities to adopt zoning ordinances "relating to the nature and extent of the uses of land and of buildings and structures thereon." N.J.S.A. 40:55D-62(a). Pursuant to the MLUL, such ordinances may

"[e]stablish, for particular uses or classes of uses, . . . standards for the provision of adequate physical improvements including, but not limited to, off-street parking and loading areas, marginal access roads and roadways, other circulation facilities and water, sewerage and drainage facilities. . . ." [N.J.S.A. 40:55D-65(d).]

Under the MLUL, each municipality is permitted to adopt its own set of standards for physical improvements. As a result, developers that build projects in more than one municipality often encounter inconsistent requirements. See John M. Kerekes, Housing Made Easy: New Jersey's Uniform Site Improvements Standards Act of 1993, 21 Seton Hall Legis. J. 11, 12 (1997) (observing that curb height standards differ by as much as fifty percent between contiguous municipalities). The lack of uniformity among the various municipalities' site improvement standards has adversely affected construction costs, and therefore housing costs, throughout the state. N.J.S.A. 40:55D-40.2a, -40.2b.

Recognizing that "[t]he multiplicity of standards for subdivisions and site improvements . . . increases the costs of housing without commensurate gains in the protection of the public health and safety," N.J.S.A. 40:55D-40.2(a), the Legislature sought to reduce housing costs by facilitating the approval process for new residential developments. N.J.S.A. 40:55D-40.2(e). To advance that goal, in January 1993 the Legislature enacted the Site Improvement Standards Act (Act), L. 1993, c. 32, codified at N.J.S.A. 40:55D-40.1 to -40.7. In a statement accompanying the signing of the Act, Governor Florio noted that the legislation would "cut industry costs by promoting standardization of construction materials and design" without "limit[ing] municipal zoning powers." Office of the Governor, News Release at 1 (Jan. 29, 1993). The Act authorized the establishment of a uniform set of technical site improvement standards for streets, roads, parking facilities, sidewalks, drainage structures, and utilities. N.J.S.A. 40:55D-40.1. The uniform standards were to "supersede any such site improvement standards incorporated within the development ordinances of any municipality." N.J.S.A. 40:55D-40.5.

Although the Legislature intended to create uniform "technical requirements" for residential development, N.J.S.A. 40:55D-40.2(f), it recognized that the "policymaking aspects of development review are best separated from the making of technical determinations," N.J.S.A. 40:55D-40.2(g). Consistent with that recognition, the Legislature amended an earlier proposed draft of the Act to remove language that would have authorized the establishment of uniform "design" standards in addition to the site improvement standards. That amendment also added a provision to the final version of the Act stating that "nothing contained in [the Act] shall in any way limit the zoning power of any municipality." N.J.S.A. 40:55D-40.6.

The Act established an Advisory Board (Board) to prepare and submit to the Commissioner of the DCA (Commissioner) recommendations for statewide site improvement standards for residential development. N.J.S.A. 40:55D-40.3, -40.4. The Board was directed to adopt the recommendations contained in Article Six of the "Model Subdivision and Site Plan Ordinance" (Model Ordinance) prepared by The Center for Urban Policy Research at Rutgers University. N.J.S.A. 40:55D-40.4(a). However, the Board was authorized to deviate from the Model Ordinance if the modifications were supported by "standards promulgated under similarly authoritative auspices of any academic or professional institution or organization." Ibid.

The Board conducted an extensive review of the Model Ordinance and sought comments from professional planners and engineers throughout the state. Subcommittees were formed to evaluate more thoroughly specific topics addressed by the Model Ordinance. During the Board's deliberations, the DCA requested advice from the Attorney General's office concerning the extent to which municipal zoning power limited the DCA's authority to establish uniform site improvement standards. Noting that the "primary purpose" of the Act is to facilitate residential development through the establishment of uniform standards, the Attorney General's office responded that the DCA's authority to promulgate such standards was not limited by municipal zoning power.

In January 1996, following approximately two and one-half years of deliberations, the Board submitted its recommended standards to the Commissioner. The standards established requirements for streets and parking (N.J.A.C. 5:21-4.1 to -4.20), water supply (N.J.A.C. 5:21-5.1 to -5.4), sanitary sewers (N.J.A.C. 5:21-6.1 to -6.2), and stormwater management (N.J.A.C. 5:21-7.1 to -7.6). Although the majority of the proposed standards were adopted directly from the Model Ordinance, the Board modified some of the standards contained in the Model Ordinance and added others not contained in the Model Ordinance.

The majority of the standards are technical in nature. See, e.g., N.J.A.C. 5:21-4.18(a)(1) (thickness of concrete sidewalks); N.J.A.C. 5:21-5.3(h) (pipe size of water mains); N.J.A.C. 5:21-6.2(c)(9) (composition of manholes); N.J.A.C. 5:21-7.5(f) (structural criteria for stormwater detention basins). Some, however, arguably have the potential to affect the character or design of a municipality. See, e.g., N.J.A.C. 5:21-4.2 (street width); N.J.A.C. 5:21-4.14 (number of parking spaces required per bedroom).

The regulations contain limited exceptions to the uniform standards. First, de minimis deviations from the standards may be granted "if the literal enforcement of one or more provisions of the standards is impracticable or will exact undue hardship because of peculiar conditions pertaining to the development in question." N.J.A.C. 5:21-3.1(a). Examples of de minimis exceptions include authorization to reduce the minimum number of parking spaces and the minimum size of parking stalls. N.J.A.C. 5:21-3.1(f). A second exception permits a municipality or a developer to seek a waiver if adherence to a given standard would pose a "danger to public health and safety." N.J.A.C. 5:21-3.2(b). Third, the regulations permit a municipality to establish "special area standards" that differ from the uniform standards. N.J.A.C. 5:21-3.5(a). Special area standards are intended to apply to sections of a municipality that "exhibit a distinctive character or environmental feature that the municipality . . . [has] expressed a desire to preserve and enhance," such as historic districts or rural preservation areas. *fn1 N.J.A.C. 5:21-3.5(b). Finally, a developer and a municipality may agree to exceed the uniform standards. N.J.A.C. 5:21-3.6.

Prior to the publication of the proposed standards in the New Jersey Register, the Commissioner added a regulation requiring sidewalks in certain residential developments located near schools or recreational facilities. N.J.A.C. 5:21-4.5(b). The Commissioner determined that the sidewalk provision was necessary after receiving comments from the Director of the New Jersey Division of Highway Traffic Safety and others that such a requirement would reduce pedestrian fatalities. The sidewalk provision was based on a standard promulgated in a treatise by the United States Department of Transportation Federal Highway ...


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