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DCA Tries Again to Use RSIS to Limit Municipal Stormwater Controls

By Michele Donato, Esq. and Stuart Lieberman, Esq.

In the 1990’s, developers claimed that municipal residential development ordinances lacked uniformity, increased development costs, and caused uncertainty in the development process. In response, and over the objections of the League of Municipalities and New Jersey Planning Officials, the Legislature amended the Municipal Land Use Law (MLUL) to include the Residential Site Improvement Standards Act (the Act). The Act created the Site Improvement Advisory Board (SIAB) “in, but not of” the Department of Community Affairs (DCA) to devise a uniform set of standards for residential development. The Act specified that it shall not “in any way limit the zoning power of any municipality.” The legislative findings include the statement that “policymaking aspects of development review are best separated from the making of technical determinations.” N.J.S.A. 40:55D-40.2g.

In the case of N.J. State League of Municipalities v. Department of Community Affairs, 310 N.J. Super. 224, 228 (App. Div. 1998), the League of Municipalities challenged the Act and the regulations adopted by the DCA, arguing that the DCA exceeded its authority by implementing regulations that impermissibly intruded on the traditional recognition of municipal zoning power.

For the most part, the League did not prevail, as the Appellate Division found that the Legislature’s intent was to give the DCA the power to enact uniform regulations for subdivision and site plan reviews. Significantly, the Appellate Division invalidated the DCA’s stormwater management regulation that provided that the RSIS standard was the maximum regulation for stormwater. The stormwater regulation of the New Jersey Department of Environmental Protection (DEP) specified that the DEP regulation was the minimum requirement and municipal regulation could be stricter. Because the DCA regulation conflicted with that adopted by the DEP, the DCA “essentially conceded” that its regulation was invalid. The appellate court found that the DEP, not the DCA, had the power to regulate stormwater management and invalidated the effort by the DCA to restrict municipal control of stormwater.

The remaining aspects of the appeal proceeded to the Supreme Court and the regulations were upheld at 158 N.J. 211 (1999). The Supreme Court acknowledged that the RSIS regulations “create the potential for tension with local zoning policy,” but left such decisions to specific “as-applied” challenges. Id. at 227.

At some point, the DEP regulations were revised and the specific regulation allowing municipalities to enact stricter stormwater standards was not included. The DEP instructions and model ordinance continue to acknowledge the right of municipalities to enact more stringent stormwater regulations.

History tends to repeat itself. Once again, the DCA is proposing to regulate stormwater, taking this position in a draft regulation that effectively bars municipalities from regulating stormwater management unless the development is classified as a “major development” under DEP regulations. A major development is one with one acre or more of disturbance or one-quarter acre of impervious surface occurring since February 2004. If this amendment is adopted, municipalities will not be able to address drainage for any development that is less than major development.

The DEP, the League, NJPO, many municipalities and environmental organizations oppose this proposal. Because the MLUL exempts one and two-family houses from site plan review, it appears that the DCA may hold the opinion that municipalities cannot regulate stormwater management. This mistaken belief may be influenced by the unfortunate decision in Builders League of South Jersey v. Borough of Haddonfield, (Unpub. App. Div. March 3, 2021), certif. denied 2021 WL 4975300, (N.J. Oct. 22, 2021), in which the Appellate Division affirmed a trial court ruling invalidating a municipal stormwater ordinance that essentially required site plan review for one and two-family homes, contrary to the MLUL. The Haddonfield ordinance also imposed stricter stormwater requirements than those required by RSIS. The court found that the ordinance was preempted by the MLUL and RSIS. This case is an example of bad facts and bad law combined. Fortunately, it is unpublished and should not be considered as precedent.

The SIAB first scheduled a meeting in December 2021 to recommend the proposed regulation. The DEP and the DCA apparently engaged in discussions and the proposed regulation was placed on the April 15, 2022 SIAB agenda. Many participated in the April meeting of the SIAB and based on the extensive opposition presented, SIAB delayed voting based on public comments. It is likely that another meeting will take place shortly to revisit the proposal.

Many New Jersey municipalities have regulations that require stormwater management review for less than major development. Concerns are greater in municipalities that are largely built out and where most applications are for one and two-family homes that do not meet the major development threshold. Many municipalities have experienced increased flooding in recent years and need the authority to control stormwater so that flooding damage can be minimized. In addition to removing policy determinations from the purview of towns, the DCA proposal can result in violation of the Clean Water Act.

If adopted, the DCA regulation would allow considerable development to occur without stormwater controls. The DCA proposal is inopportune when flooding and related stormwater concerns are increasingly evident. Builders’ organizations support the DCA initiative, largely relying on the unpublished Appellate Division decision in Haddonfield.

The City of Elizabeth has circulated a resolution urging the DEP to take action to protect communities from the DCA. The resolution is included below and can be used by other towns to protect their rights. Municipalities are urged to adopt similar resolutions and to pay close attention to the DCA proposal.

In addition, the true stakeholders are those subject to increased flooding who will lose the ability to control stormwater for other than major development. We urge those who will be negatively affected by the DCA proposal to encourage the DEP to take action by reinstating a clear regulation that specifies that the DEP stormwater rules are a minimum requirement for municipalities.

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