Archive for the ‘land use’ Category

DEP does not need a search warrant to inspect wetlands

Written by Mike Pisauro on April 16th, 2013 in Courts, land use, Wetlands | No Comments »

The New Jersey Supreme Court recently released its decision in Huber v. NJ DEP.  I wrote about the case in Does DEP need a search warrant to investigate wetlands on your property?  The Court held that while DEP does not need a search warrant, it cannot enter a residential property under the Freshwater Wetlands Act without the property owners consent or Court Order.    If a property owner does not voluntarily consent than the DEP has regulatory authority and ultimately judicial recourse to compel that inspection.

The Court noted that when a land owner receives property subject to a permit that allowed the wetlands to be impacted the land owner takes the land without a reasonable expectation of full privacy.    The property owner does have some measure of privacy but it is reduced.  That reduced level of privacy means that the DEP does not have the right to enter residential property over the objection of the landowner.  If the landowner objects, than the DEP commission can issue an order requiring compliance with DEP’s right to inspect the property including monetary penalties for non-compliance.  If that does not work, and I do not expect it will in many cases, DEP can then seek a judicial order permitting the inspection.  The Court was also careful to note that the standard to issue the court-ordered entry is lesser than the probable cause necessary to get a search warrant in a criminal case.  But the Court did not set out the standards for issuing the court-ordered entry.

The Court also left undecided, DEP’s argument that it also had a property right in the land because there was a conservation easement recorded as a result of the Freshwater Wetlands Permit.  In essence since the State owned the easement they did not need the owners of the rest of the property to consent to the search.  The Court did not decide whether under the New Jersey Conservation Restriction and Historic Preservation Restriction Act DEP had a property right to the effected land therefore it did not need a warrant.  This issue will likely be litigated in the future. In the Courts decision it indicated that it probably would not find constitutional a permit requirement to allow such inspections.  It is not clear whether the property interest in the easement would pass constitutional scrutiny with the Court.

Under the current statutory and regulatory provisions, if DEP wishes to inspect a wetland it must request permission from the property owner after showing proper credentials.  If the property owner refuses permission for DEP to inspect the property, than the DEP employee can request that that the Commissioner of DEP issue an administrative order compelling compliance under NJSA 13:9B-21(b).  This statute authorizes the DEP Commissioner who finds a person in violation of any provision of the act or regulation or permit to issue an order:

  • Specifying the provision(s) of the act, regulation, or permit violated;
  • Citing the action constituting the violation;
  • Requiring the person to comply with the cited provision.

So in the instances of the case, once the Hubers declined to allow DEP’s inspection (note that there is a dispute as to whether the Hubers consented or not); the DEP employee could have asked Commission Martin to find the Hubers in violation of NJSA 13:9B-21(m).  This provision authorizes DEP the “authority to enter any property, facility premises or site for the purposes of conducting inspections, sampling of soil or water  . . . and otherwise determining compliance with the provisions of the act.”  The Commissioner would than issue the order requiring the Hubers to allow DEP to inspect the wetlands and transition areas.  If the Hubers did not comply with that order DEP could then have filed suit seeking a court order to compel the inspections.

It is with this last step that the Court has left DEP and the public hanging.  What does DEP have to show to a judge for the judge to issue an order compelling the inspection?  Does DEP have to show that there were or might have been wetlands/transition areas on the property; thus subject to the regulation of DEP and that the property owner did not permit DEP to inspect?  Or will DEP have to show that they have some level of information that not only was or wetlands on the property but that those wetlands have been impacted in violation of the Act and that they requested permission to inspect and were denied by the property owner?  How much information or proof does DEP have to show to order to get a Court order?

Also, this also brings into question how many resources will DEP bring to bear on this issue?  Will they seek penalties and judicial orders compelling compliance against all property owners that refuse inspection?  Or will they in a time of increasing budget cuts, lack of resources and a lack of political will to enforce environmental protections not seek to enforce the law.  Will property owners with wetlands be able to do what they want because DEP will not enforce?  If so, NJ’s wetlands will suffer and in return all of New Jersey will suffer.

 

Webinar on Land Use for Objectors

Written by Mike Pisauro on April 3rd, 2013 in land use, Uncategorized | No Comments »

On April 19th, I will holding be a webinar giving an overview of the land use process for objectors.  What you need to do in order to be effective in opposing a project.  To learn more about the webinar and to sign-up take a look at Land Use for Objectors.

Regulations Are Not a Taking Under the Constitution!

Written by Mike Pisauro on April 3rd, 2013 in Clean Water, Highlands, land use, Regulation | No Comments »

Recently a member of the Highlands Council was quoted as saying that the Highlands Water Protection and Planning Act took people’s property without compensation in violation of the Fifth Amendment of the U.S. Constitution and Article 1 Paragraph 20 of the New Jersey Constitution.  According to a post in the EnviroPolitics Blog, Richard Vohden referred “to the devaluing of property values for those unable to subdivide or sell due to the law, Vohden said, “If that’s not a ‘taking,’ I don’t know what a taking is.””  The Council’s newest legal counsel has also repeated this sentiment.  These are very unfortunate statements and just wrong on the law.

f the Highlands Act has devalued the property why is it not a taking?  The Highlands Act, especially in the Preservation Area, required much more acreage to build on.  In essence it created minimum lots sizes, which are large.  It is this large lot sizes that some believe have taken their land.  This is what Vohden is referring.

To understand why Vohden and others making the same claim are wrong you must understand takings law.  The basis for takings laws can be found in the U.S and NJ constitutions.  The Fifth Amendment of U.S. Constitution provides, in part: “nor shall private property be taken for public use, without compensation.”  Article 1, Paragraph 20 of the New Jersey Constitution provides: “Private Property shall not be taken for public use without just compensation.”  New Jersey Courts have determined that the New Jersey Constitution and the U.S. Constitution protect this right equally.

The New Jersey Supreme Court and the Federal Courts have ruled that the 2004 Highlands Water Protection Act is not a takings.  But Vohden’s statement is repeated often enough by people affected by the Act.  I suspect that as we rebuild from Sandy, if we are to do it right, people along the coast of New Jersey may be saying the same thing.

When does a law or regulation take private property?  I would start out by noting that for many years legal scholars and courts did not believe that the Constitution protected against “taking” of property through regulation.  It was originally thought that the only taking the constitution protected against was a physical taking by the government.  That thinking has evolved and probably will continue to evolve.

Currently, the U.S. Supreme Court has held that regulations that impact property are not a taking just because the regulation may have an impact on the value of the property.  The Court has said in numerous cases, “Government hardly could go on if to some extent values incident to proper could not be diminished without paying for every such change in the general law.”  Everyone’s ownership of land is subject to the reasonable exercise of state’s authority.  At one point the Court would look to see if the regulation addressed a noxious and harmful uses of the property.  A property owner has never been able to use their property in a way to could harm another’s property.  If the regulation addressed a noxious or harmful use of the property than the courts would not find a taking even if the property had no use after the regulation.

When a regulation takes all value from a person, the Court has indicated that is a regulation that has the same effect as a physical taking and will require compensation under the Fifth Amendment with one exception.  The Court has said that a state could avoid payment when the regulation controls an aspect of ownership that was not part and never was part of the property’s bundle of rights.  A property owner could not flood his neighbor’s property so a regulations or a statute that prohibited such a use, even if that was the only use of the property would not be a taking.

When a regulation does not take all economic value from the property as a whole the court will take a look at whether the regulation substantially advances a legitimate state interest. If the legislation substantially advances a legitimate state interest than the Court is unlikely to find a taking.  The Supreme Court in Lucas v. South Carolina Coastal Commission set out some items to look at in these situations:

  • Degree of harm to public lands and resources or adjacent  private property
  • Social value of the claimants activities
  • Suitability of the activity to the area
  • Relative ease with which the alleged harm can be avoided through measures taken by the claimant or the government
  • Whether the use has be historically engaged in by surrounding properties.

In light of the criteria above, the Highlands Act clearly does not violate the criteria.  The Highlands Act was enacted to counter the damage that unrestrained growth was having on the State’s water supply.  This unrestrained growth was impacting not only the quality of water but the quantity as well.  There were no realistic alternatives to protect the water quality and quantity other than to protect the lands that recharged the waters.  I would also argue that historically development in the Highlands area was very spread out and low intensity.  It was only in recent years that development concentrated in the area.  To sort of wrap this up, the Highland Regional Master Plan requires land within the preservation area and not part of a sewer service area to have large lots.  Is that a taking?  Under current constitutional law, the answer is no.  Attacks against the Highlands Act have been unsuccessful in State as well as Federal Courts.

The lessons we have learned in the Pinelands and the Highlands may help guide us as we hopefully address our coastal region.  Hopefully the State will put into place regulations to protect the coastal region.  If that occurs I would suspect that we may hear the same false claims as in the Highlands.  Luckily no matter how many times it is said, mere regulation of property is not a taking.

Senate To Vote on Permit Extension Act and Waiver Rule: One Bad and One Good.

Written by Mike Pisauro on May 31st, 2012 in land use, legislation, Regulation | 1 Comment »

This afternoon the New Jersey Senate is voting on two very important bills:  SCR59, The Waiver Rule and S703, Permit Extension Act of 2008. These two bills are very important as SCR59 will be an important step in stopping the DEP from undermining environmental protection and S743 will help undermine environmental protections including the Highland Planning Area and the Pinelands Preservation Area.  That both bills are up at the same time is somewhat troubling.  Is the senate looking to do one good thing so that they can vote in favor of a bad thing?  While the legislative process is always one of compromise, there should not be any compromise of basic environmental protection.

I have written about the DEP’s Waiver Rule and why it is bad.  Take a look at Assembly Tells DEP to Waive Goodbye to Waiver Rule, Waiver Rule: One Rule to Rule Them All! for more information on that topic.

Why is Permit Extension Act so bad?    Hasn’t there already been several Permit Extension Acts?  Yes, and I have written about the Permit Extension of 2008 when it was originally introduced.  If we already have it, then why is S743 bad?  It is bad because it is more expansive than the original act.  The original Permit Extension Act was strongly opposed by environmentalist and the final product was the result of strong negotiations between all parties.  The final bill removed from the Act environmentally sensitive areas.    Under NJSA 40:55D-136.3(a), environmentally sensitive areas was defined to include: Planning Areas 4B (Rural Environmentally Sensitive), Planning Area 5 (Environmentally Sensitive) or a critical environmental site, the Highland Regions except for areas designated for growth and the pinelands area except for areas designated for growth.  In these areas the Permit Extension Act of 2008 did not extend permits.

S743 redefines environmentally sensitive areas.  Under the pending bill the definition of Environmentally Sensitive Area does not include either the Highlands Planning Areas or the Pinelands Planning Area.   The bill goes further by adding a definition of “smart growth area” by including all of the Highlands Planning Area as a growth area.  The Highlands Planning Area covers about 450,000 acres of New jersey of which about two-thirds of it is considered environmentally sensitive.  The Planning Area includes Under the Highlands Water Protection and Planning Act, the purpose of the planning area is to:

  1. Protect, restore, and enhance the quality and quantity of surface and ground waters therein;
  2. Preserve to the maximum extent possible any environmentally sensitive lands and other lands needed for recreation and conservation purposes.
  3. Protection and maintain the essential character of the Highlands environment;
  4. Preserve farmland and historic sites and other historic resources
  5. Promote the continuation and expansion of agricultural, horticultural, recreational and cultural uses and opportunities;
  6. Preserve outdoor recreation opportunities, including hunting and fishing, on publicly owned land.
  7. Promote conservation of water resources
  8. Promote brownfield remediation and redevelopment
  9. Encourage, consistent with the State Development and Redevelopment Plan and smart growth strategies and principles appropriate patters of compatible residential, commercial and industrial development, redevelopment , and economic growth, in or adjacent to areas already utilized for such purposes, and discourage piecemeal, scattered, and inappropriate development, in order to accommodate local and regional growth and economic development in an orderly way while protecting the Highland environment from individual and cumulative adverse impacts.

As can be seen from the above list, the main purpose of the planning area was to preserve the area while allowing limited and controlled development. This goal was reinforced by Section 12 of the Statute that provided the regional and local master plan for the preservation area shall include:

 A preservation zone element that identifies zones within the preservation area where development shall not occur in order to protect water resources and environmentally sensitive lands . . .

S743 completely ignores this requirement of the law as it restores and extends permits that may predate the Highlands Act.  The Highlands act specifically provided at all permits would expire within three years of the enactment of the Highlands if construction, beyond site preparation, had not begun.   That means if you had a permit and did not begin meaningful construction prior to August 10, 2007 your permit expired.  Under S743 permits that expired between January 1, 2007 up to the present will be revived.  Permits that have been gone for up to 5 years will now be valid.  Many of these permits would pre-date the Highlands Act and would pre-date any regional master plan and local plan that protects the sensitive areas within the planning area.

It is difficult to rectify the strong intent to protect the Highlands Planning Area with the expanded language in S743.  If this bill passes out of the Senate it will be hard to justify that vote against the 34 Senators that voted in favor of the Highlands Act in 2004.  Hopefully S743 is not passed to in its current form and the Senate stands up for the environment and all of us today.

 

Please read these related posts:

Waiver Rule:

Assembly Tells DEP to Waive Goodbye to Waiver Rule

Waiver Rule: One Rule to Rule Them All!

 

Permit Extension Act:

Governor does not veto Permit Extension Act

Enviros seek Governor’s veto of Permit Extension Act

0 to 60- Permit Extension Act passes both houses.

A bullet train that will not stop

Permit Extension Act may not be so extended

New Jersey wants to stop time

NJ is rapidly becoming the City State not the Garden State

Written by Mike Pisauro on August 5th, 2010 in land use, Wetlands | No Comments »

Researchers from Rowan and Rutgers University have recently released a new report looking at the changes in NJ’s land use from 1986 to 2007.  A prior report looked at the changes from 1995 to 2002.  This report adds the period between 2002 to 2007.  This report shows some very amazing facts.

The rate of development in NJ increased by 7% from 2002 to 2007.  From 1995 to 2002 NJ lost an average of 15,123 acres per year to urbanization, but that increased to 16,061 acres per year from 2002 to 2007.  As we continued to increase urbanization in the State of New Jersey we lost forests, wetlands, open space, and forestlands.  These land use changes have ramifications.  For example we lost 66.3 square miles of forest over 21 years.  This loss of land to urbanization has many negative environmental impacts.  The loss of forests has increased the fragmentation of habitat and has created more fringe areas.  Species that rely on large areas of habitat will have less large areas to hunt, bred and to live.  Fringe habitat encourages invasive species to take over.

We continue to lose wetlands to urbanization.  From 2002 to 2007 we lost 8,652 acres of wetlands or the slightly more than the total area of the Hackensack Meadowlands.   It is somewhat surprising at the level of wetlands loss since 1995 as overall federal policy is for zero wetlands loss.  Another issue with NJ’s wetlands loss is NJ’s water quality.  It is well accepted that when a watershed has 10% or more of its land covered by impervious surface that watershed is impacted to various degrees.  Increasing impervious cover will have an impact on water quality as well as flooding.    NJ’s 2008 Integrated Water Quality Report shows that NJ’s waters are not fairing well.  63% of the streams that could be assessed did not meet the standards for aquatic life.   41% of our waters do not meet the designation for recreational use and we do not know enough to determine the status of another 40%.    Interesting, the report reveals that fish and invertebrate communities were commonly impacted in urban areas and that “increase in impervious surfaces was related to a negative response in the aquatic invertebrate community.”   As we continue to pave over NJ our water quality will decrease.  This will also cause continued efforts to clean up our streams, rivers and lakes to be a more expensive proposition.

Another interesting fact the report reveals is that almost 50% of the development has taken place outside of the areas designated for growth within our state plan.  This is contrary to NJ’s State Plan, but a look at this issue will have to wait for another post.

Was 2009 the year for renewables in NJ?

Written by Mike Pisauro on February 10th, 2010 in Green Building, land use, legislation, Renewable Energy, Solar, Uncategorized, Wind | No Comments »

A lot has happen since I wrote Renewables and Land Use Law in 2008.  2009 may be one of the best years for renewable energy in New Jersey.  Several laws were passed 2009-2010 in NJ that help move the acceptance and adoption of renewable energy in NJ.

There were two very significant bills.  The first modifies NJ land use laws.  P.L. 2009 C. 146 adds the definition of inherently beneficial to the land use statutes.  Up to now what was inherently beneficial was determined on a case by case basis and only after litigation.  The recently enacted law defines inherently beneficial (for the first time) to include “wind, solar or photovoltaic energy facility or structure.”  Being inherently beneficial is very useful for land use applicants who are seeking a D variance from their local land use board.  D variances are the toughest to get and require the applicant to show that the positive aspects of the project outweigh the negatives.  If your proposed project is inherently beneficial you automatically meet the positive requirements of a D variance.  What is left is showing that the proposal does not create a substantial detriment to the public good and will not substantially impact the zone plan and township ordinances.

Another law that will have far ranging implications is P.L. 2009 c. 244.  This law goes even farther than P.L. 2009 c. 146.  In essence this bill requires municipalities to allow small wind turbines within their borders.  The bill provides that municipalities “shall not unreasonably limit such limitations or unreasonably hinder the performance of such installations.”  Under the bill municipalities cannot enact ordinances that unduly restrict the installation of renewable energy.  A small wind energy system or turbine is one which is primarily for onsite consumption of electricity.  It is considered an unreasonable for a municipality to:

  • Prohibit small energy systems in all districts within the municipality
  • Restricting tower height by applying generic height ordinances that does not make allowance for tower heights.
  • Requiring setbacks more than 150 percent of the system height.
  • Setting noise level lower than 55 decibels.
  • Setting electrical or structural criteria that exceed the applicable UCC standards

This is a very important step forward for wind turbines in NJ.  It will not remove all barriers to the installation of wind turbines as a town could require a setback of 150% which many property owners may not meet.  Given that the towers for small wind energy systems are rated for hurricane winds, the setbacks really are overly restrictive.

P.L. 2009 c. 35 provides that on industrial property of 20 or more acres solar and wind systems are permitted uses.  This would prevent municipalities from requiring variances for the installation of these systems.  An applicant would only need a construction permit to install these kinds of systems.

P.L. 2009 c. 33 requires developers of new residential housing to offer as an option to their purchaser’s solar energy systems.  This requirement applies developments of 25 units or more.  The systems also must be covered under the New Home Warranty and Builder’s Registration Act.  Interesting the Legislature set out a section of findings prefacing this law.  The State has declared that, “[t]hat the installation of even small scale solar energy systems will combat global warming and reduce the nation’s dependence on foreign energy sources, resulting in a significant environment benefit.”  I would suggest a similar finding can be found for wind in the State of NJ.

P.L. 2009 c. 289 revises our electricity generation laws.  In particular it increases the amount of electricity that utilities selling power in NJ have to get from solar sources.  The law also changes the requirement from a percentage of total electricity generation to absolute numbers.  Under this law the State of NJ is requiring that utilities supply either directly or purchase from other generators the following gigawatt hours of electricity generated from solar systems:

2011 306 Gwhrs 2019 1,858 Gwhrs
2012 442 Gwhrs 2020 2,164 Gwhrs
2013 596 Gwhrs 2021 2,518 Gwhrs
2014 772 Gwhrs 2022 2,928 Gwhrs
2015 965 Gwhrs 2023 3,433 Gwhrs
2016 1,150 Gwhrs 2024 3,989 Gwhrs
2017 1,357 Gwhrs 2025 4,160 Gwhrs
2018 1,591 Gwhrs 2026 5,316 Gwhrs

After 2026 the State will still require at least 5,316 Gwhrs of electricity from solar sources.  The law allows for the number of Gwhrs to be increased.

The law also permits that the above schedule can be increased by 20% if in the three preceding years there were enough or excess SRECs to meet the requirements and the average price of SRECs in the same three years decreased.

The State changed the system from requiring a percentage of energy to absolute numbers because of the intent in the Energy Master Plan to reduce overall all energy demand.  If the RPS requirements remained as a percentage the State would start generating less electricity from renewable energy sources the more successful the EMP was.

The next two are not renewable energy bills but also fairly significant for the energy usage of NJ.

P.L. 2009 c. 106 requires the Department of Community Affairs to develop new enhanced energy codes.  These codes are based upon the projected energy costs for the next tens years.  The enhanced energy codes shall be designed to increase energy conservation for buildings.  In 2006 buildings accounted for 39% of the energy use in the United States.  So by enhancing the energy efficiency of new or renovated buildings will go a long way to reducing greenhouse gas emissions and overall energy usage.  The new codes are to be set so any increased in cost to meet the new codes will be paid back within seven years from the reduced energy usage.

Lastly, P.L. 2009 c. 33 allows BPU to give grant money to install energy efficiency, renewable energy, reduction in peak demand, and reduction in energy usage for commercial and industrial business with high peak demand.  As industry is one of the largest users of energy in NJ some have argued that more money should be spent to help them reduce their energy demands and thus help NJ reduce its consumption of fossil fuels.  I am frankly not that convinced that industry should be given this kind of hand out given that many of these energy efficiency, renewable energy systems will pay the company back in a relatively short time frame.

All of these new laws move renewable energy in NJ forward. They make it less expensive to buy, obtain permits and install.  The laws improve the market for renewable energy by creating a greater demand.  While NJ has moved forward we still have some road to travel.  There are several bills being considered for the 2010-2011 legislative session that will again impact NJ’s energy and environmental future.  I will look at these bills in a future post.

Other related posts:

NJ declares wind and solar energy as inherently beneficial
NJ Governor Canditates promote renewable energy, NJ needs more than rhetoric
Governor takes small steps for renewable energy, more needed.
Wind and Solar are ahead of coal in more than ways than one.
Federal RPS has been introduced

NJ declares wind and solar energy as inherently beneficial

Written by Mike Pisauro on December 28th, 2009 in land use, legislation, Renewable Energy, Solar, Wind | No Comments »

Last month, the Governor finally signed legislation that decrees that wind turbines and solar panels are inherently beneficial under New Jersey’s land use laws.  This is a step forward for wind energy in New Jersey.

Up to now, in most cases if a person or business wanted to install a wind turbine in New Jersey they would have to seek a variance.  A variance is usually necessary because the wind turbine does not meet the height restrictions in most towns.  Some towns also consider the wind turbine as non-permitted structure.  In either event in many instances an applicant for a wind turbine must file for a D variance.  D variances are the toughest type to get.

In order to obtain a D variance an applicant must get the approval of 5 of the 7 board members i.e. more than a majority.  Also the applicant must prove that the wind turbine is has benefits to society that outweigh the negatives.  It also must meet other positive requirements.  One would think that proving wind turbines have a positive effect to society and that positive effect outweighs any negative effect.  The one thing that can be sure is that when a hearing for a wind turbine is scheduled anybody and everybody will be there to protest with complaints that are in large part invalid (in my humble opinion).

This is where P.L. 2009 C. 146 comes in.  This new law defines inherently beneficial under our land use laws.  Before this bill what was inherently beneficial was left up to the individual land use boards and ultimately to the courts to decide on a case by case basis.  This law defines inherently beneficial as, ‘a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare.  Such uses includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure.”  The law in essence removes one small hurdle to the installation of wind energy to NJ.  Once a project is considered inherently beneficial it now longer has to prove that the benefits to the public outweigh the negatives.  It is assume that the benefits outweigh the negatives.

There was opposition to this bill before it was passed and the League of Municipalities issued a statement on the law arguing that this is taking the power from the municipalities and the courts.  In particular the League noted that by including wind and solar energy as inherently beneficial that further legal challenges will be forthcoming.

I agree with the League on this issue, merely declaring wind and solar energy as inherently beneficial does not mean that litigation over the systems will end.  I am aware of at least two lawsuits in NJ involving the installation of a wind turbine.  I suspect as the green economy grows and the need for clean reliable renewable energy grows more and more businesses and individuals will like to install wind turbines.  Those applications will continue to be denied by land use boards for real reasons as well as NIMBY reasons.  This will lead to a multitude of lawsuits whose costs will far outstrip the energy benefits to the owner.

While P.L. 2009 C. 146 is a good start, what NJ needs is a laws that prevents townships from prohibiting (either directly or indirectly) the installation of wind turbines in their borders.  California has a similar law:

any ordinances regulating small wind energy systems adopted by local agencies have the effect of providing for the installation and use of small wind energy systems and that provisions in these ordinances relating to matters including, but not limited to, parcel size, tower height, noise, notice, and setback requirements do not unreasonably restrict the ability of homeowners, farms, and small businesses to install small wind systems in zones in which they are authorized by local ordinance.  It is the policy of the state to promote and encourage the use of small wind energy systems and to limit obstacles to their use.” The statute goes further to provide that, “[t]he implementation of consistent standards to achieve the timely and cost-effective installation of small wind energy systems is not a municipal affair . . . but is instead a matter of statewide concern.”  Ca. Gov’t Code §65892.13(a)(5).

If New Jersey is going to meet its terrestrial goals of 200 megawatts of energy from terrestrial wind turbines in the state by 2020 it needs to do more than talk about supporting wind and P.L. 2009 c. 146.  We need to do more.

NJ Governor Canditates promote renewable energy, NJ needs more than rhetoric

Written by Mike Pisauro on July 18th, 2009 in land use, legislation, Politics, Renewable Energy | No Comments »

Recently the Republican and the Democratic candidates for NJ governor addressed renewable energy. NJ needs renewable energy. The Country and the World needs the switch to renewable energy. Christie’s website indicates we have one of the strongest renewable energy portfolio standard (RPS), but rank 48th in the country for renewable energy generation. Why? Well according to the EIA a vast majority of the renewable energy capacity and generation in the country is hydro power. NJ does not have a lot of hydro possibilities. So, if you take out hydro from the calculations, I am not so sure that NJ is doing so badly. For example, NJ is second only to California in solar generation. Granted NJ is a long way down from California but it is still ahead of 48 other states. Take a look at NJ is #2 in Solar and seeking to increase.

After hearing and reading about Chris Christie’s stump for renewable energy, I took at look at his website for more information on how he plans on getting us to the promised land of more renewable energy. With two exceptions the plan was a little sparse. Lots of rhetoric and not a lot of detail. Mr. Christie indicates that one of his methods encourage manufacturers of renewable energy systems to build plants here is to offer a credit of up to 100% corporate business tax or the insurance premium tax. I am not going to delve into the murky depths of whether a 100% tax credit is good or bad. I do wonder how a tax credit encourages the installation of renewable energy in NJ. The plan may or may not encourage companies to locate here, but it does not affect the actually installation of systems in NJ.

Christie also pledges to make solar farms a permitted use under our land use laws. He also pledges to require all landfills to install renewable energy systems on their properties. Lastly, he would allow up to 20% of a preserved farm to be used for solar farms instead of traditional farming products, i.e. vegetables, fruits, etc. There is no mention in his plan on how he will encourage and grow the use of wind energy in the State.

On the other hand, Gov. Corzine’s campaign website has no mention of a renewable energy plan. I presume he will point to the Energy Master Plan released late last year. That plan calls for 1000 megawatts of offshore wind by 2012 (that time frame looks to be way off, please see my post on MMS leases), and an increase in renewable energy generation to 30% by 2020 from the current goals of 22.5%. Those are good goals. But like the Christie plan goals without real concrete steps on how to reach them are not useful. The EMP is short on implementation. As noted above, NJ is not going to have 1000 megawatts of offshore wind by 2012.

Christies plan for solar farms on preserved farmlands is in one shape or form already in the works. S1538 was introduced in the Senate on March 17, 2008. It would allow wind, solar and biomass generation on up to 1% of the farmland including preserved farmland. The bill was passed in the Senate in June 25, 2009 and referred to the Assembly appropriations committee. An Assembly version was heard and reported out of committee, but it has not been considered by the full Assembly yet. With the upcoming elections in the Assembly, it may not be voted on by the full house until after the November elections.

There is also a bill (S1303) that would define wind and solar generation systems as inherently beneficial for land use purposes. This bill has passed out of both houses and is waiting for the Governor’s signature. That bill took almost a year and half to get where it is now. Hopefully the governor signs it into law. This bill is not the full measure that Christie calls for, but is a very small step in the right direction.

Last year the State did enact a law last year that prohibits municipalities from considering the value of renewable energy systems when calculating a properties value. That is a good step in encouraging people and businesses to install renewable energy systems. The law removes a perverse disincentive to renewable energy.

While it is good that both the Democratic and the Republican candidates have made renewable energy a part of their campaign, the State, its citizens and the environment needs more than rhetoric. The State needs to take the goals of the EMP and to implement them in an effective and efficient manner. The State will have to move several pieces of legislation in order to meet the 30% RPS goals some of which are noted above.

One of the most important steps to bringing renewable energy jobs and renewable energy to NJ is the removal of State and local impediments to renewable energy installation even the 22.5% goals by 2021 that are currently in place are unreachable. I have also called for the passage of a state law that would prohibit municipalities from restricting the installation of renewable energy systems. I have published an article discussing the conflicts between renewable energy and land use law. So far no legislator has been willing to introduce that legislation to would truly move the State to a renewable energy future. I do not believe that such legislation should not be earth shattering but would be a change in emphasis. We would be putting teeth in our current land use laws that require:

NJSA 40:55D-2.   It is the intent and purpose of this act:

a. To 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;

j. To promote the conservation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through improper use of land;

n. To promote utilization of renewable energy resources . . .

Proposed legislation would elevate the goals of the land use laws to requirements for municipalities to meet. Municipal restrictions on renewable energy should be prohibited by state law unless there is a true public health and safety issue. This proposed legislation would be in line with laws already in places like California and Wisconsin. Such legislation would put teeth into the goals of NJ’s land use laws and to coordinate the States strong goals of promoting renewable energy. Hopefully, who ever the next Governor of NJ is, that person keeps their commitment to renewable energy and puts in place measures to really meet those commitments.

Governor takes small steps for renewable energy, more needed.

Written by Mike Pisauro on April 4th, 2009 in Global Warming, land use, legislation, Renewable Energy, Solar, Wind | No Comments »

Late last year the State finalized its Energy Master Plan. That plan was several years in the making and was over a decade overdue. The EMP called for increasing NJ’s energy efficiency and the generation of electricity from renewable energy. The State also tied its Global Warming Response plan very tightly with the Energy Master Plan. The sooner NJ puts in place the policies necessary to achieve the twin goals of reducing our generation of energy from dirty power and reducing our global greenhouse gas emissions the better of we will be economically and environmentally. In baby steps towards these goals, the Governor recently signed into three law three bills that will reduce our use of fossil fuels and encourage the development of electricity form renewable energy.

P.L. 2009 c. 33 (A1558/S2265) will help encourage solar energy by making solar photovoltaic panels an option you can choose as when you buy new construction. This new laws requires developer of 25 homes or more to explain to new home buyers the benefits of solar energy, the financial incentives available and to install the panels on the new home if chosen by the buyer. By making solar energy systems just another option a home buyer can choose from as their new home is built, hopefully we will continue to grow NJ’s place as a leader in renewable energy.

P.L. 2009 c. 35 (A2550/S1299) defines solar and wind facilities as a permitted use in industrial zones with 20 or more acres. This bill would help prevent municipalities from excluding solar and wind facilities from industrial zones. In essence towns cannot prohibit renewable energy in these zones by defining them as not a permitted use. They will still be able to discourage these systems by setting up prohibitive setback requirements or height limitations.

P.L. 2009 c. 34 (A2507/S1932) gives BPU the authority/requirement to grant money to companies that was to install cogen facilities. Cogen facilities are systems that use oil/gas/etc. to generate not only electricity but heat as well. Normally, fossil fuels are used to generate heat for a building or electricity but not both. By encouraging the use of cogen the overall use of fossil fuels will decrease.

There is one bill that was considered by both houses of the legislature on March 16th – A3062/S1303. These bills would define wind and solar systems as inherently beneficial. This definition is necessary because many towns require a person who wishes to install a renewable energy system (in particular wind) to apply for a variance. With certain variance applications a person will have to prove that the renewable energy system is “inherently beneficial.” This term has never been defined by the legislature up to now, but we have had to rely on each individual town and the courts to provide the definition on a case by case basis. While this bill is not best solution it is a step in the right direction.

The run of the mill variance application is time consuming, money consuming process without any guarantee that the end result will be favorable. When the variance application is for renewable energy the process because more expensive and more time consuming. Also, it will drive everybody who opposes change to the hearings. These “nimby” people will spout “facts” to oppose the project which have very little relationship to reality. Declaring renewable energy as inherently beneficial, one hurdle is removed from the process.

All of these bills are good first steps to reaching the goals of the energy master plan and the global warming response act. There are several other bills, that will further these goals even more, that have been introduced and are awaiting consideration. I will discuss these bills in a future post.

DEP cannot ignore the requirments of the law

Written by Mike Pisauro on March 28th, 2009 in Courts, land use, Ocean | No Comments »

Recently, the appellate division reminded DEP that it has to follow the law. In Dragon v. NJDEP, the NJ Appellate Division reversed the DEP’s authorization of development in the CAFRA zone without issuing a permit.

The case arose because a property owner wanted to demolish their existing home and build a new larger one next to the beach of Brigantine. The original proposed expansion would have expanded their home from 1944 to 3480 square feet and brought the house nine feet closer to the beach. The homeowner applied twice for a general permit which was denied because they did not meet the requirements of the general permit on either occasion. On both applications, one of the homeowner’s neighbors objected to the applications.

The homeowners appealed the denial and the matter was referred to DEP’s office of dispute resolution. During the dispute resolution process the DEP and the homeowners reached a compromise. This settlement was reduced to a written “Mediation & Settlement Agreement in lieu of a permit.” The neighbor objected to the settlement and challenged it. The DEP rejected the challenge and issued the homeowners a “Letter of Authorization” (LOA) allowing the reconstruction of the house, but even bigger than what the homeowners requested and without any set back from the bulkhead along the beach. This LOA specifically provided that it was instead of a coastal general permit under the Coastal Zone Management rules.

The objecting neighbors appealed the issuance of the LOA alleging that the Coastal Area Facility Act (CAFRA) and its implementing rules did not allow the DEP to settle a case by authorizing development without the applicant meeting the requirements of and receiving a permit. The DEP countered it had the authority “deviate from strict compliance with its own regulations in order to avoid ‘litigation risks’ and to prevent” a possible adverse legal ruling.

The Appellate division ruled that CAFRA did not give the DEP authority to waive the substantive requirements of the statute or it’s implementing regulations. (DEP could have the authority to wave procedural requirements.) Because CAFRA was designed to balance the completing interests of protecting, repairing and enhancing the environment with encouraging compatible land use it was important that any development be either by permit or within one of CAFRA’s exemptions. DEP could not in the spirit of settlement avoid the need to issue a permit. If the DEP wanted authority to issue settlement agreements without issuing a permit or to waive substantive requirements, it must gain that authority from the legislature. In short, DEP cannot give itself more power than what the law permitted.

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