Business groups appeal NJDEP PACT land use rules

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The basics:

• NJBA, NJBIA file appeal challenging NJDEP Resilient Environment and Landscape (REAL) land use rules under PACT
• Rules would add new requirements for certain new homes in expanded flood-risk areas
• Critics say regulations could restrict development, increase housing costs and impact property values statewide
• Bipartisan legislative resolution also seeks to address concerns PACT rules conflict with legislative intent

As he left office, Gov. Phil Murphy enacted sweeping land-use rules that many say will cause a “real” pain for development. On March 5, business groups filed an appeal to stop the regulations from taking effect.

Attorneys from Giordano Halleran & Ciesla PC filed the notice March 5. They represent New Jersey Builders Association and New Jersey Business & Industry Association. It comes in response to the New Jersey Department of Environmental Protection’s Resilient Environment and Landscape rules.

The prior administration proposed the regulations. In a March 6 announcement, NJBA and NJBIA explicitly noted the appeal does not reflect a challenge to current state leadership.

Additionally, the groups lauded Gov. Mikie Sherrill for her regulatory reform agenda and priorities since taking office. So far, high marks include a centralized permitting office and tracker. Sherrill also announced a pause on certain rules and regulations for a 90-day review.

Drowning in regulations

Among its mandates, the 1,000-plus-proposal includes a provision requiring raise new homes constructed in expanded flood-risk 4 feet higher than the current FEMA-base flood elevations. That height, along with the data used to determine where it applies, raised questions and concerns among many critics of the plan.

It also applies to homes undergoing renovations that add 50% more than the home’s value.

In addition to strong opposition from NJBIA and NJBA, more than 130 mayors, multiple municipal and county associations, as well as the New Jersey Business Coalition, have also opposed the overall.  None of those groups are part of the new legal filing.

Legislative action

Meanwhile, a new bipartisan resolution in the state Legislature aims to address concerns with the overarching Protecting Against Climate Threats rules, NJBIA noted. The measure identifies PACT regulations adopted Jan. 20 as inconsistent with legislative intent.

The resolution notes substantial effects for residents. It points to “limiting development rights for countless homeowners and property owners, devaluing property, and having a significant impact on property tax assessments.” It also says the rules will further increase the cost of housing, citing restrictions and increased regulatory costs.

NJBIA Deputy Chief Government Affairs Officer Ray Cantor said NJDEP drafted the rule without meaningful engagement with statement holders. Beyond adding to affordability issues. “It was fundamentally flawed, and its provisions were too numerous and complicated to be merged into one regulatory framework,” Cantor said.

Goal oriented

“NJBA strongly supports climate resilience and environmental protection,” said NJBA President and CEO Jeff Kolakowski. “But those goals must be pursued in a way that is legally sound, economically responsible, and compatible with New Jersey’s urgent need for housing.”

He noted the implementation coincides with New Jersey’s Fourth Round affordable housing obligations. The latest obligations from the Department of Community Affairs call for approximately 150,000 units to address present and prospective needs.

“The 1,000-plus page REAL rule goes far beyond sea level rise resilience and is laden with DEP wish list items that do little to nothing to improve resiliency,” said Kolakowski. “They are inconsistent with the state’s economic growth strategy, redevelopment goals, state plan and overall housing strategy.”

A spokesperson for NJDEP told NJBIZ the department does not comment on pending litigation.

The enactment of the PACT – REAL rules came amid a flurry of activity from Murphy as he left Trenton. On his last day in office, the outgoing governor signed more than 120 bills into law, announced $100 million in medical debt relief and 148 clemency actions (bringing his total to 450).