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Recently,
New Jersey enacted rather comprehensive stormwater
management regulations. It is now common place before
every Planning Board in New Jersey that this issue be
considered as part of an application. Unfortunately,
the rules of the game have changed in terms of
stormwater.
Since the DEP overhauled its stormwater
management protocol, there have been much more
stringent requirements, and in many instances, it is
the position of the Planning Board’s professional that
they no longer have the responsibility to determine
whether the State Comprehensive Storm Water Management
protocol has been satisfied by an applicant appearing
before the Board.
Classically, in those municipalities which
are taking the incorrect position that they don’t have
to make these judgments, the Board, the attorney or
the engineer will take the position that this is an
issue that will be decided by the Department of
Environmental Protection. However, this is often not
the case. In some instances, an applicant before a
Planning Board will never have an occasion to have its
stormwater proposal evaluated by the Department of
Environmental Protection in order to determine whether
there is a compliance with the State requirements.
Thus inevitably, in those instances where a Planning
Board attorney or engineer takes the position that the
municipality does not have the responsibility to
ensure compliance, what is happening is that large
developments are being approved and effectively no one
is reviewing the application to determine whether
there is stormwater compliance.
The purpose of this article is to
articulate that this protocol is incorrect and indeed
is a recipe for disaster. It is a recipe for disaster
because in many parts of
New Jersey,
the less difficult parcels have already been
developed. Often, what a Planning Board is presented
with is a development on a piece of property that is
environmentally challenged. It may be challenged
because it has steep slopes, because it has a high
ratio of wetlands, because it is in a flood zone area,
or because it is near a C-1 Stream. In
many instances, these environmental detriments, if not
correctly assessed, can lead to flooding conditions.
When a Planning Board fails to review the
stormwater issues, and an application is approved
effectively lacking any stormwater review, what always
seems to happen is that flooding occurs and down
gradient flooding victims have no remedy whatsoever.
Downgradient flooding victims often have
no remedy. Often, they lack the ability to sue the
Planning Board for not doing its job because the Tort
Claims Act provides the Board with a large amount of
protection. As to the developer whose project should
not have been approved, if the developer is still
around when the suit is filed, the developer’s defense
that it did what was approved is a fairly good
defense. And in many instances, neither the
developer, nor its assets are anywhere to be found
after approval and the construction of the project.
Unfortunately, what this means is that
when a Planning Board does not do its job by assuming
legal responsibility for ensuring compliance with the
new stormwater requirements, bad things happen to
innocent and relatively powerless persons.
Since February of 2004, all applications
for major development in New Jersey are subject to the
new storm water requirements promulgated by the
Department of Environmental Protection. They are
stringent and they are meant to be stringent.
The new regulations have been incorporated
through the Residential Site Improvement Standards
(“RSIS”) and are to be reviewed by a Planning Board.
The DEP does not generally review these protocols. It
will only review an applicant’s stormwater proposal if
the applicant is also required to obtain a DEP
permit. Absent the requirement that any particular
permit be obtained from the DEP, the DEP lacks
jurisdiction over the application and accordingly
never will have an opportunity to review the
application.
This happens frequently. Thus, the notion
by Planning Board professionals throughout
New Jersey
that this compliance with the new stormwater
requirements is a DEP issue, is wrong. It will only
be a DEP issue if DEP jurisdiction is triggered.
N.J.S.A. 40:55D-40.5 is controlling on
this issue. It provides the standards set forth in
regulations adopted pursuant to this Act. The RSIS
incorporates the stormwater management requirements
that a municipality is required to consider when
reviewing applications for development. The RSIS
statewide standards have superseded design standards
that municipalities have always been responsible for
enforcing.
If ever a municipality has enacted an
ordinance which requires a subdivision or site plan
approval, then the Planning Board of the municipality
is legally obligated under State law to ensure that
the plans for the development work with the
requirements of State law and applicable ordinances
before approval is granted.
The Supreme Court recently noted in the
case entitled In Re: Freshwater Wetlands Permit,
2006 decision,
“We are unaware of any provision in the FWPA (the
State Wetlands Law)... that makes the DEP the
responsible agency for ascertaining the adequacy of a
proposed storm water management plan… the Planning
Board is empowered to enforce detailed statewide rules
that govern storm water management systems in
residential subdivisions. Those rules, known as the
New Jersey Residential Site Improvement Standards
imply to any site improvements to be carried out in
connection with any application for residential
subdivision.”
Thus, the Supreme Court acknowledged in
the context of the Freshwater Wetlands analysis, that
it is a municipal function to determine compliance
with statewide stormwater obligations. It has not
ever been nor is it now a DEP requirement to determine
whether stormwater compliance exists.
A related problem that seems to occur
frequently is that rather than assuming its
responsibilities by reviewing the stormwater plan in
order to determine consistency, some Planning Boards
are simply conditioning approval on an applicant’s
promise to ultimately submit a stormwater plan that,
according to the municipal engineer, will be deemed
compliant with State stormwater requirements.
This is a faulty way of doing business and
it should not be allowed. Initially, there is no
guarantee that anyone will be able to satisfy the
State stormwater regulations. They are designed to be
stringent, and certainly not every application can
satisfy them. Indeed, many applicants have had to
redo their plans in order to meet stormwater
requirements adopted by the DEP. This means that an
approval subject to ultimate compliance with the
stormwater regulations, might very well be an exercise
in futility. It makes no sense to go through this
entire process anticipating that an applicant may be
able to satisfy these stringent requirements when the
showing has not been made.
Moreover, a Planning Board process must be
open and transparent. For many neighbors, compliance
with stormwater requirements is their biggest concern
because they do not want to be flooded out. They are
keenly aware of the fact that if the Planning Board
approves a bad project which results in flooding, that
there is a good opportunity that the down gradient
neighbors will have no effective remedies whatsoever.
An approval that is subject to the
submission of an approvable stormwater plan sometime
down the road, which would be done in a private
meeting between the applicant’s engineer and the
Planning Board’s engineer, is not an open process. It
is a closed process, in a back room, so to speak,
which is the opposite of what is supposed to be
occurring. And this is particularly difficult in
light of the importance of this issue to many
neighbors.
In addition, by allowing an application to
be approved subject to the demonstration of compliance
with this material provision down the road, one is
ignoring the legal requirement that an applicant
demonstrate proactive compliance with the RSIS
standards. An applicant with no stormwater plan can
ever be said to have demonstrated compliance with this
RSIS standard. It is thus intellectually dishonest,
if not illegal to allow this kind of process.
In February 2004 the DEP adopted
comprehensive stormwater management regulations which
are found at N.J.A.C. 7:8-1 et seq. Those regulations
require among things, that regional stormwater
management plans be created and submitted to the DEP
for review. Once these plans are approved then the
following applies: in the event where the Department
is asked to issue certain enumerated permits as part
of an application, then the Department will review the
application in order to determine consistency with the
storm water requirements.
However, under the stormwater regulations
promulgated by the DEP every municipality must
incorporate applicable provisions of the regional
stormwater management plans into a new amendment
stormwater management ordinance. And in particular,
in accordance with the RSIS, if a storm water
management plan for the region has been approved by
the DEP, storm water management plans must conform
with that plan.
In conclusion, Planning Boards must do
their job when it comes to stormwater management. It
is not correct to say that this is not their issue,
but rather a DEP issue. Sometimes that is true,
sometimes it is not true, depending on the applicant’s
needs. Since a Planning Board can never be confident
that an applicant is going to ultimately require DEP
permits, it is the Planning Board in the first
instance that must do this job.
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